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

The local planning authority’s judgment that land is being used in breach of planning control, albeit that there is a long and unresolved dispute as to whether that is indeed the case, is not a sufficient basis for that authority’s decision to apply for an injunction to restrain the continuation of that use. The local planning authority must consider that it is necessary or expedient to enforce against the unauthorised of the land by invoking the jurisdiction of the court pursuant to section 187B of the 1990 Act.

In the present case, the Claimant’s decision to apply for an injunction was taken by its Legal Services Manager on 5 August 2025, in the exercise of delegated powers. Ms Sayers referred me to the following powers delegated to her as Legal Services Manager under the Claimant’s Scheme of Delegation –

“8.

High Court Action: To instigate, defend, pursue and settle High Court proceedings in the following circumstances:

…

(b)

applications for High Court injunctions to secure planning enforcement under the Town and Country Planning Act 1990 (as amended) or to deal with breaches of Abatement Notices under the Environmental Act 1995 or amendments thereof which shall be authorised by the Cabinet.

(c)

any applications for High Court injunctions where immediate emergency action is required, to prevent serious distress to public safety or residential amenity which shall be authorised by the Legal Services Manager in consultation with the appropriate Portfolio Holder.

…

Any legally qualified officer within the Legal Services Function also has the authority to execute this function”.

Ms Sayers said that she made her decision to apply for an injunction in the light of what she considered to be the need for immediate emergency action to prevent serious distress to public safety or residential amenity as specified in paragraph 8(c) of those delegated powers. Although she did not seek to rely specifically on paragraph 8(b), it is clear from her evidence that she proceeded on the understanding that the statutory basis for the Claimant’s proposed claim was section 187B of the 1990 Act. Ms Sayers took the view that the delegated decision that she took to instigate those proceedings had been authorised by Cabinet at the briefing meeting held on 4 August 2025. She said that she did not directly seek authority from the appropriate portfolio holder, whom I understood to be Councillor Keska.

Paragraph (b) of the General Provisions governing the exercise by officers of the powers delegated to them under the Claimant’s Scheme of Delegation provides –

“All action taken under the terms of these delegations shall be properly documented”.

Ms Sayers accepted that, at the time, she had not documented the decision which she took on 5 August 2025 to instigate these proceedings in this court. In her evidence she said -

“At every available opportunity and at each and every step, I have carefully considered the position as to whether there should be a review of the Council’s actions and the decision to apply for injunctive relief, for example, following the outcome of the appeals to the Court of Appeal, in respect of the decision to continue with the final injunction proceedings”.

Ms Sayers did not produce any document recording her reasons for concluding that the Claimant should continue with these proceedings for a final injunction, for example following the decision of the Court of Appeal to set aside the interim injunction ordered by this court.

On Ms Beardwell’s evidence, the unanimous view of Cabinet following the briefing meeting held on 4 August 2025 was that the current use of the Bell to provide accommodation for asylum seekers was having a sufficiently harmful impact on residential and public amenity to justify immediate action to bring that use to an end. Such action was considered to be necessary in the light of “recent events and the ongoing impact on the various facets of residential amenity”.

Ms Sayers said that Ms Beardwell had telephoned her shortly after the briefing meeting and given a detailed account of what had taken place. She had been told that the attendees were unanimously in support of taking “immediate injunctive action”. Ms Sayers said that in deciding to institute proceedings for an injunction and a declaration, she had borne in mind “the latest developments at and in the vicinity of the Bell Hotel site”. Ms Beardwell did not provide me with a more detailed explanation of the “recent events and the ongoing impact on the various facets of residential amenity” which were judged to merit the restraint of the current use of the Bell by injunction. Nor did Ms Sayers give a more detailed explanation of the latest developments at and in the vicinity of the Bell which she had borne in mind in reaching her decision to instigate proceedings for an injunction.

The lack of a proper contemporaneous record of the delegated decision to apply for an injunction and a declaration is a clear breach of the requirements of the Claimant’s Scheme of Delegation. That omission is all the more surprising in the light of Ms Sayers’ evidence that she did discuss with Ms Beardwell whether her decision to instigate proceedings for an injunction engaged the requirements of regulation 7 of the Openness of Local Government Bodies Regulations 2014 [“the 2014 Regulations”].

Regulation 7 of the 2014 Regulations applies to an officer of a district council who makes a decision which falls within regulation 7(2) –

“7(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2).

(2)

A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either –

(a)

under a specific express authorisation; or

(b)

under a general authorisation to officers to take such decisions and, the effect of the decision is to –

…

(ii)

affect the rights of an individual;

….

(3)

The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information –

(a)

the date the decision was taken;

(b)

a record of the decision taken along with reasons for the decision;

(c)

details of alternative options, if any, considered and rejected;

….

(4)

The duty imposed by paragraph (1) is satisfied where, in respect of a decision, a written record containing the information referred to in sub-paragraphs (a) and (b) of paragraph (3) is already required to be produced in accordance with any other statutory requirement”.

Ms Beardwell and Ms Sayers appear to have reached the view that the delegated decision to apply for an injunction to restrain the use of the Bell to accommodate asylum seekers did not affect the rights of any individual. As Ms Jenny Wigley KC for the Defendant submitted, that was rather beside the point, given the clear terms of the Claimant’s Scheme of Delegation. It is difficult to understand how in considering whether regulation 7 of the 2014 regulations applied, Ms Beardwell and Ms Sayers came to overlook the requirements of paragraph (b) of the General Provisions of the Scheme of Delegation.

The upshot is that there is no contemporaneous report, note or record which explains the delegated decision maker’s reasons for her decision to instigate proceedings for the injunction. Nor is there a minute or contemporaneous note of the briefing meeting held on 4 August 2025. In my view, it ought to have been obvious to the Claimant’s responsible officers that this case cried out for a proper contemporaneous record to be made of those matters. The failure to make such a record, particularly given the express requirement to do so stated in the Scheme of Delegation, was a serious procedural error, which gave rise to real prejudice to the Defendant. That prejudice was worsened by the failure of the Claimant to give notice of the delegated decision to the Defendant, or to attempt to explain in pre-action correspondence the reasons why the Claimant considered it necessary and expedient to apply to the court for an injunction.

Nevertheless, in order to determine the Claimant’s application for an injunction, I need to understand as far as I am able the particular considerations on which was based the Claimant’s judgement that an application for an injunction to restrain the current use of the Bell was necessary or expedient.

I have referred to the reported concerns of Cabinet members at the briefing meeting about “recent events” and the ongoing impact of the current use of the Bell on “various facets of amenity”. Ms Holly Whitbread has been the District Councillor representing the Ward in which the Bell is situated since 2020. She attended the briefing meeting on 4 August 2025. In her witness statement signed on 10 August 2025, Ms Whitbread said –

“In early 2025, the Home Office reopened it to house single adultmale asylum seekers. This was done without any measures to allay the inevitableconcerns that this would cause in the community. This decision has causedsignificant anxiety and alarm in the local community. The presence of an all-maleasylum hotel in such a central, sensitive location, so close to homes, schools andpublic facilities, has been accompanied by heightened fears which have beenexpressed to me by my constituents, particularly among parents and women. This fear has been magnified by a number of incidents, including one hotel residentrecently charged with sexually assaulting a 14-year-old girl and another beingarrested for arson. Moreover, these recent events appear to have been a catalyst for subsequent unrestin recent days. I am unable to see how a restoration of calm and a return to perceivedsafety levels can be restored other than by the immediate and permanent cessationof the use of the Bell Hotel as accommodation for asylum seekers”.

The Court of Appeal also referred to the Claimant’s concerns about the incident of alleged sexual assault by a resident of the Bell on 8 July 2025, which had led to protest activity outside the Bell from 11 July onwards, the essence of those protests being that the Bell should no longer be used to house asylum seekers. Although initially a protest by local residents, later protests had grown larger and more widespread as the case gained national prominence, and there had been violence, disorder and disruption. Security fencing and gates had been erected along the highway frontage of the Bell. The Court of Appeal said –

“31.

It is the Council's contention that there has been harm to the amenity of the local area from the nature of the use of the Hotel and associated, sustained protests and disturbance, heightening the risk and fear of crime and resulting in occupants of the Hotel being socially excluded from the community. In addition, there is significant detriment to the amenities of nearby residential properties by reason of the noise disturbance”.

Before the Court of Appeal, counsel for the Claimant characterised the position as being one of “tolerating” what had been judged to be a breach of planning control resulting from the resumption of use of the Bell to accommodate asylum seekers, without the required planning permission. However, following the protests which began outside the Bell on 11 July 2025, that which the Claimant had hitherto tolerated had become intolerable. The trigger for the application for an injunction had been the protests and the accompanying disorder and criminality: see the Court of Appeal’s judgment at [106].

In the absence of the contemporary record of the Legal Services Manager’s decision required by the Claimant’s Scheme of Delegation, it is those considerations which emerge as the primary basis for the Claimant’s judgment that in early August 2025 it had become necessary or expedient to apply for an injunction to restrain the use of the Bell as contingency accommodation for asylum seekers.

It is well established that the amenity of a local area may be affected by residents’ well-founded fears or concerns about criminal activity being generated by the use of land or buildings. For that reason, the fear of crime is capable of being a material consideration to be given appropriate weight by a local planning authority both in development control decision making and in deciding whether it is expedient to take enforcement action and if so, what form such action should take. See West Midlands Probation Committee v Secretary of State for the Environment (1998) 76 P&CR 589 [“West Midlands”]. Insofar as the Claimant’s decision to apply for an injunction pursuant to section 187B of the 1990 Act can be shown to have been founded upon that consideration, it provided a legitimate basis for that decision.