KB-2025-002908 - [2025] EWHC 2937 (KB)

This is not a case in which conventional enforcement measures taken by the local planning authority over a lengthy period of time have failed to secure the effective remediation of a clear breach of planning control, which has resulted in and continues to cause serious and irreparable planning and environmental harm. I have accepted that at the time of the delegated decision to bring these proceedings in early August 2025, the Claimant as local planning authority had at least a reasonable basis for alleging and asserting that the current use of the Bell as contingency accommodation for asylum seekers is in breach of planning control. However, the Claimant was well aware from earlier engagement between its planning officers and the Defendant that there was a clear and unresolved dispute as to whether the use of the Bell for that purpose was in breach of planning control. The Claimant had been aware of the use of the Bell to provide accommodation for asylum seekers for a period of 18 months between October 2022 and April 2024. It did not take enforcement action. The Claimant was aware of the resumption of use of the Bell for that purpose in early April 2025. It did not take enforcement action at the time. Nor did it take such action on being informed on 15 May 2025 that the Defendant would not be making an application for retrospective planning permission. I have reached the firm conclusion that this is not a case in which the breach of planning control postulated by the Claimant is a flagrant one.

I have real concerns as to the propriety of the local planning authority’s decision-making process. In particular, there was a clear breach of the procedural requirements of the Claimant’s Scheme of Delegation in failing to prepare a contemporary record of the delegated decision to apply for an injunction. In consequence, there is a real uncertainty as to the matters which the decision maker took into account in reaching that decision. It appears that the decision maker did not consult directly with the Claimant’s planning officers. There was no attempt made to engage with either the Defendant or the Home Office in relation to the proposed enforcement action. There is nothing to indicate that the decision maker took into account the Claimant’s Local Plan, the Claimant’s enforcement policy in the Plan or national policy on taking enforcement action in the PPG. There are significant countervailing factors in this case which needed to be weighed in the balance in deciding whether enforcement action was expedient; and if so, what form that enforcement action should take. The Defendant is seriously prejudiced by the lack of a contemporary record of the Claimant’s reasons for its decisions on those questions.

Having considered the contemporary evidence, I have concluded that the delegated decision in early August 2025 to apply for an injunction was founded upon a proper planning consideration, the Claimant’s judgment being that the amenity of the local area was being harmed by local residents’ and the local community’s fear of crime and of criminal activity associated with the use of the Bell as accommodation for asylum seekers. In order to form a broad view of the degree of planning and environmental harm which results from the breach of planning control on which the Claimant founds its claim, I have considered the range of factors which, on the evidence before me, are said to justify the grant of an injunction as a commensurate remedy in this case.

In the light of that consideration, I have concluded that the presence of security fencing along the prominent road frontage of the Bell results in harm to the visual qualities of the Green Belt and to the character and appearance of the conservation area. The degree of that harm is limited by the fact that it is localised and very likely to be temporary in its duration, with the fencing likely to be removed no later than by April 2026, when the Defendant’s current contract with CTM comes to an end. Moreover, the fencing was installed in response to street protests, rather than being an integral requirement of the use of the Bell as contingency accommodation for asylum seekers.

I accept that the Claimant had advanced a reasonable argument that the current use of the Bell does not accord with policy E4 of the Local Plan, which seeks to retain existing visitor accommodation. However, the degree of harm resulting from that can be argued to be limited both by the temporary nature of the current use of the Bell and by virtue of the economic advantage to the Defendant of that current use, which is expected to assist in bringing the hotel back into conventional use in the longer term.

I have heard no evidence to support the concern that the current use of the Bell is placing local GP, health, social and community services under undue pressure, to the detriment of the settled population of Epping. There is no evidential basis at all for the assertion that asylum seekers as a cohort have a greater propensity than the settled population to engage in criminal or anti-social behaviour.

I have carefully considered the degree of planning and environmental harm which may reasonably be said to result from the actions or alleged actions of the three individuals accommodated at the Bell who have been convicted or charged with criminal offences since April 2025. I have done so in accordance with the authoritative guidance given by the Court of Appeal in West Midlands. I accept that, in the light of those actions or alleged actions, the fears and concerns of local residents of which I have been made aware in evidence have a reasonable basis. However, the resulting degree of planning and environmental harm is limited, in my view. It has not been established that those fears and concerns are grounded in the use of the Bell as contingency accommodation for asylum seekers. They are properly to be regarded as the understandable reaction of local residents to the well-publicised criminal behaviour, actual and alleged, of three individuals who happen to have been accommodated there.

The Claimant’s desire to find a swift resolution to the disruption to public order and the community tensions which followed the outbreak of street protests on 11 July 2025 was reasonable. It does not however follow that the solution lay in an application for an injunction under section 187B of the 1990 Act. Public opposition to the development of land, even if that opposition manifests itself in street protests, is not in itself evidence of planning of environmental harm generated by the development to which there is such strong objection. The police have a panoply of powers to manage and regulate street protests and to enforce public order. Essex Police have resorted to those powers in this case. I have not heard evidence which indicates that the action taken by the police has been ineffective.

There are countervailing factors in this case which are properly to be weighed in the balance against the planning and environment harm which may reasonably be said to result from the postulated breach of planning control. In particular, the evidence before me clearly establishes that there is a continuing need to source contingency accommodation for asylum seekers from hotels, to enable the Home Secretary to discharge her statutory responsibilities under the 1999 Act. That consideration carries significant weight.

In closing submissions, Mr Coppel KC submitted that the Claimant was under a duty to enforce the planning regime, relying on a passage in the judgment of Purchas LJ in Runnymede Borough Council v Ball [1986] 1 WLR 353, 363D-E. The issue in that case was whether the local authority was entitled to invoke the powers conferred by section 222 of the Local Government Act 1972 for the purpose of seeking an injunction to restrain the unauthorised use of land for the stationing of caravans for residential purposes. Enforcement notices had been issued and come into effect requiring those activities to cease. Those notices had been contravened. The question was whether the judge had been wrong to decline to grant an injunction on the basis the local authority had yet to prosecute the landowners for the offence of contravening the enforcement notices. Purchas LJ spoke of a “duty on the council under the planning legislation… to do all within their power to ensure through properly observed planning control the natural amenities of their area”.

I read Purchas LJ’s observation as no more than an acknowledgment of the undoubted public interest in the proper regulation of the development and use of land, in accordance with the comprehensive code now found in part 3 of the 1990 Act. That public interest extends also to the effective and timely exercise of enforcement powers under part 7 of the 1990 Act, to ensure that development is properly controlled and unlawful uses of land and buildings which give rise to planning and environmental harm are dealt with effectively.

There is, however, no duty as such placed upon a local planning authority to enforce against unauthorised development simply because it is considered to be in breach of planning control. An informed planning judgment is required of the local planning authority as to whether enforcement action is appropriate; and, if so, as to whether the harm caused by the unauthorised development is of such a degree as to merit restraint by injunction. Proper and effective planning control is not undermined by the normal enforcement regime, which permits a person served with an enforcement notice to appeal against that notice and, unless a stop notice is served, to continue with the alleged breach of planning control at least until that appeal has been determined by the Secretary of State.