Salutary Tale for Local Authorities

Local authorities across the country have been applying for ex parte (without notice) injunction orders to prevent the use of hotels by asylum seekers.

Stoke on Trent City Council, Ipswich Borough Council and East Riding of Yorkshire Council all brought claims under s187B of the Town and Country Planning Act 1990 alleging that accommodating asylum seekers in hotels was a material change of use, from a hotel to a hostel which required planning permission.

The hotelier in Ipswich was initially served with a temporary stop notice to prohibit any asylum seekers staying at the hotel, even though 72 people had already arrived. Only two days later, the injunction was served which prevented any hotel in the borough from accommodating asylum seekers or face criminal prosecution.

The law

Mr Justice Holgate reminded practitioners that a change of use has to be material in order to require planning permission, not simply a change of use. The Use Classes Order simply defines certain changes of use which are not to be treated as development. The Order does not operate so as to treat a change from a use within a Use Class to another use outside that Class as a material change of use. The Order cannot be used to treat that change as representing in itself a material change in the use of the land. Whether that is so will depend on a case-specific assessment of the effect of the change on the character of the use of the land and the planning consequences of the change.  The local authority was also reminded of key legal principles of necessity and expediency when considering issuing enforcement proceedings especially injunctive proceedings

Grounds for dismissal

All three applications were dismissed, and the temporary injunctions lifted by the High Court on similar grounds, which can be summarised as follows:

1. It is a fine balance to judge what is a hostel versus a hotel;
2. No irreparable harm or damage is involved in housing asylum seekers in hotels;
3. Typical planning enforcement tools could have been used, which allows alleged breaches to be appealed and merits fairly considered; and
4. It would not be commensurate with the evidence on alleged planning harm and urgency for the injunction to be continued until trial.

Ipswich Borough Council in particular was criticised for not making any real attempt to investigate how the hotel would be used and that the evidence on the planning consequences of any change of use was limited.

The future

The ongoing challenge of accommodating asylum seekers has no easy solution, yet the UK Government has a statutory duty to find one. Mr Justice Holgate noted that the Home Office is facing an unprecedented number of asylum seekers who have to be accommodated as a matter of law and there is no alternative accommodation readily available. These decisions have no doubt made local authorities reconsider using draconian measures, such as injunctive relief to deal with these issues. Whilst planning is invariably connected with politics, it is crucial to remember that the planning regime is not a forum for political battle between central and local government.