A couple of months ago, I wrote two pieces on this blog covering the interim injunction judgments at first instance and on appeal in the case of Epping Forest District Council v Somani Hotels Limited. 

The claimant Council was famously successful at first, only to have its interim victory undone a few days later. The matter has now gone to trial, resulting in a resounding defeat for the Council: [2025] EWHC 2937 (KB).

The factual background is set out in my earlier articles and I won’t repeat it here. Let’s start instead with some legal background.

Relevant planning law points

  1. The planning law concept of “hotel” is defined to include use as a boarding or guest house but to exclude use as a “hostel.” But these words are otherwise undefined, with the courts being left to apply them.
  2. Enforcement against an unauthorised change of use requires a finding that the change is “material.” The fact that the change involves use outside the permitted type (in this case, “hotel”) does not necessarily mean that the change has been material. Assessment is highly fact-sensitive and requires a focus on harmful consequences of a type considered relevant under planning law.
  3. The normal process for a planning authority which objects to an alleged change of material use is to serve an enforcement notice specifying what is to be done, or ceased. Reasons must be given and relevant policies must be stated. There is a right of appeal to the Secretary of State for Housing, Communities and Local Government. Filing such an appeal suspends the enforcement notice automatically. The centralised decision is subject to a further appeal to the High Court on points of law.
  4. To achieve a quicker result, the planning authority has statutory power to issue a stop notice to require activity to cease immediately. However, it loses the ability to do so where the use has been ongoing for more than 4 years.
  5. Section 187B of the Town and Country Planning Act 1990 provides that a planning authority may, where it “consider[s] it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction” apply to court for an injunction.
  6. Much turned in the Epping case on the proper approach to section 187B considered against the background of the other enforcement procedures just mentioned.

The grant of injunctions in planning cases

The leading decision on the proper approach to section 187B is the decision of the House of Lords in South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 AC 558, at [45]. In that case, Lord Steyn explained the policy background:

“By the 1980s it had become a notorious fact that determined individuals and enterprises could, by playing the system with the aid of lawyers, frustrate the implementation of valid planning decisions for many years… [F]lagrant and persistent breaches were perpetrated by entrepreneurs for commercial profit. It is true that the 1990 Act provides for a system of enforcement notices which if ignored may lead to a prosecution… [It] also contains provisions for the service of stop notices… There was nevertheless a strong perception that the planning system was systematically abused and that it required more effective enforcement.

In South Bucks, counsel for the targets of the injunctions argued that the court should make its own assessment of the merits. The planning authorities argued that the court was more or less bound to grant an injunction unless the local planning authority’s application was flawed in the public law sense relevant in a judicial review. 

The Court of Appeal and House of Lords rejected both submissions, holding that the court’s approach falls somewhere between these two familiar approaches.

The principles are fully set out in Mould J’s judgment in the present case but the approved starting point ([2025] EWHC 2937 (KB) at [65]) is that the judge “is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion.”

However, “the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end.”

In deciding this, factors of relevance include (quoting Simon Brown LJ in South Bucks in the Court of Appeal [2002] 1 WLR 1359 at [38]-[39]):

  1. “The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken.”
  2. “Relevant too will be the local authority’s decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations…”

As will be seen, these points proved important in this case.

The Council’s case

Epping Forest Council’s substantive case at trial was that the commencement in 2020 of the Bell’s use to accommodate asylum seekers was a material change for two reasons. One was conceptual: “considerable differences between the attributes of the current use of the Bell and those which characterised its former use as a hotel.” The other reason was the allegedly harmful impacts on local “amenity” (a planning law concept) as a result of alleged greater

  1. demand for local health services because of the occupants’ vulnerability,
  2. “propensity to anti-social and/or criminal behaviour” because of “difficult and/or traumatic experiences they have suffered,’ and
  3. community tensions, as indicated by protests since July 2025.

The Council contended that in these circumstances it properly concluded that it was “necessary or expedient” to seek an injunction under section 187B and that the court should grant the injunction and related declaratory relief.

The evidence before the court

14 factual witness statements were provided, 8 of which were from the Council.

The most important witness turned out to be the Council’s in-house lawyer. The Council’s power to apply for a section 187B injunction was delegated to her. Considerable emphasis is placed in the judgment on the fact that it was she who took the decision to proceed on Tuesday 5 August 2025.

Relevant events

It is easiest to understand the facts by summarising them chronologically.

  1. The Bell was used to accommodate asylum seekers over two periods starting in 2020 and 2022. A third period commenced in April 2025. Those accommodated were all adult men. By the time of trial, the expectation was that use of the Bell for this purpose would cease in April 2026.
  2. In early July, an asylum seeker accommodated there was arrested for assaulting two local teenage girls. Protests outside the hotel then occurred, involving a variety of locals and outside activists. There was serious violent disorder at some protests and the police made arrests.
  3. On 25 July, Council members unanimously resolved to express strong objection to the Home Office about its use of the Bell hotel, and more generally about “placing vulnerable individuals in small towns and rural areas without appropriate supervision, infrastructure or support services.”
  4. The Council leader stated in the debate that the Council would do everything within their “legal grasp” to bring this use of the Bell to an end.
  5. The Council’s in-house lawyer then instructed leading counsel to advise on planning law issues and enforcement options in respect of the Bell.
  6. Leading counsel’s written opinion was provided on Saturday 2 August to the Council’s monitoring officer (the official responsible for governance). 
  7. The monitoring officer forwarded it to the CEO and deputy CEO with a copy to the in-house lawyer.
  8. The monitoring officer and in-house lawyer then discussed it on Monday 4 August. Privilege was not waived in respect of counsel’s opinion but presumably it advised that the expiry of more than 4 years since the Bell had been used for asylum accommodation ruled out issuing a stop notice.
  9. The same evening, 4 August, the monitoring officer and the principal planning officers attended a meeting with the Council Cabinet members, who unanimously decided to proceed. 
  10. The lawyer was not invited to this meeting but the monitoring officer briefed her on it in detail shortly afterwards. The lawyer then took a decision to proceed to seek an injunction, summarising her decision in her witness statement as follows:
    “Based on what I was told, I was satisfied that those attending had been properly [apprised] of the matter and had had a proper opportunity to pose questions and have them answered. With all that, I took the decision available to me under delegated authority [to seek an injunction]…In considering whether the decision to institute proceedings for an injunction and declaration, including the application for an interim injunction and interim declaration, were within the scope of the powers that the Council delegated to me, I bore in mind inter alia:
    (a) The general expectation that there should be public participation in planning decisions, including participation by those who are, or are going to be, affected by those decisions;
    (b) The duty on the Council to enforce the planning regime;
    (c) What members of the Council knew and understood of the circumstances behind what was being proposed (including adverse considerations);
    (d) The extent and nature of the representations to Council planning officers, both by Somani and the Home Office, and the planning department’s view that planning permission was required;
    (e) The latest developments at and in the vicinity of the Bell Hotel site; and
    (f) The legal advice that the Council had received.”
  11. The Council commenced proceedings on Monday 11 August 2025. It sued a single defendant, the (small-time) hotel owner. It also immediately applied for an interim injunction. This application was heard by Eyre J on Friday the same week, the 15th. The Council was represented by leading and junior counsel, the owner only by junior counsel.
  12. The following Tuesday, the 19th, Eyre J granted an interim injunction. In addition to balance of convenience factors, he relied on the fact that he thought the Council had a strong case on the merits. He also refused the Home Office’s application to intervene. 
  13. The Court of Appeal on 1 September 2025 reversed both of these decisions. The matter was then listed for trial in mid October 2025 before Mould J, a planning specialist. Prior to trial, he granted an application to intervene by a further party, Clearsprings, the Home Office’s main contractor for asylum accommodation in the region.
  14. At trial, there were therefore four parties: the Council on one side, the owner, Home Office and Clearsprings on the other. Each had its own legal team, each including a KC and junior. 
  15. The judgment notes that, following the Court of Appeal’s decision on 1 September 2025, there were 9 further protests at the hotel during September. Also in September, the asylum-seeker arrested in July was convicted of the assaults in question (a point not in the judgment is that the matter attracted some further publicity when the individual in question was mistakenly released early from prison, then deported). Another asylum-seeker was convicted and sentenced in September of assaulting others accommodated at the hotel. And in early October, three protesters were convicted of and sentenced for violent disorder offences committed at a protest in mid-July.

The court’s decision

Mould J’s judgment is much concerned with the in-house lawyer’s process around her decision to seek an injunction. He expressed concern that she did not make a contemporaneous record of the reasons for her decision of 5 August 2025, in breach both of the Council’s delegation rules and applicable statutory regulations.

The judge noted that there was no indication that she consulted with the planning officers before reaching it; and that, had she done so, she would have been made aware of the fact that the owner disputed that there was a material change of use.

He was therefore

“left in considerable doubt as to whether the [lawyer’s] delegated decision was founded upon a properly informed and considered judgment that the use of the Bell as contingency accommodation for asylum seekers constituted a breach of planning control. In the absence of a proper record of her delegated decision and in the light of the very brief explanation which she gave in evidence, I am not confident that the clear view which she felt able to reach was properly justified.”

He regarded this as “a serious procedural error” causing real prejudice to the hotel owner, worsened by the failure to “give notice of the delegated decision to the [hotel owner], or to attempt to explain in pre-action correspondence the reasons why the [Council] considered it necessary and expedient to apply to the court for an injunction.”

The judge “unhesitatingly rejected” the Council’s contention that there was a flagrant breach by the hotel owner. This was clearly not so given the owner’s maintenance of a consistent position on a matter of interpretation and the Council’s failure to take enforcement action for years, until prompted by the protests of July 2025.

As to the three main harms alleged by the Council:

  1. The Council had offered no evidence in support of its allegation that “use of the Bell as asylum accommodation was putting undue pressure on local GP surgeries, local health and social services and community facilities.” The judge could therefore only place very limited weight on this point.
  2. The Council had provided evidence of crimes by three individual asylum-seekers and alleged that “due to the difficult or traumatic experiences which they have suffered, certain occupants of asylum accommodation may have a ‘greater propensity’ to anti-social or criminal behaviour.” The judge noted the absence of any evidence from the Council to support that general proposition and observed that “members of the settled population also commit crimes and behave anti-socially from time to time.” He was “far from convinced that the actions of those individuals disclose a pattern of criminal or anti-social behaviour which is characteristic of the use of hotels as contingency accommodation for asylum seekers.”
  3. As regards the protests, “[I]t is a long-established principle of development control that the mere fact of opposition or support for the proposed development should not carry significant weight in itself. The focus for the local planning authority will be upon the planning and environmental considerations upon which those objecting to or supporting the proposed development have founded their representations.” This point applies when a Council is considering whether it is necessary or expedient to seek an injunction.

These conclusions were obviously damaging to the Council’s ability to seek an injunction under the principles established in the South Bucks case.

As regards the impact on the Home Office’s national policy for accommodating asylum seekers, the judge had further criticisms to make of the in-house lawyer’s approach.

She said in her evidence that the Home Office had a large estate, including disused military bases, available to it, and that the Home Office “was not advising the Council that the estate could not absorb those placed in the Bell Hotel.”

The judge regarded this as “frankly disingenuous” when the Council had not raised the matter with the Home Office. The Council had just assumed, unreasonably, that the Home Office could accommodate those displaced from the Bell.

In any event, the Home Office’s evidence at trial of the challenges it faced was clear.

Overall balance

On the Council’s side of the case, the judge accepted that there was a reasonable argument that there had been a material change of use. There was also some planning harm resulting from the erection of security fencing around the hotel in response to the protests. But this was of limited impact in locality and in time, as the accommodation contract is due to come to an end in April 2026. The Council’s desire to find a quick resolution was also reasonable, but did not in itself justify seeking an injunction. 

However, the more serious alleged harms were not made out and the judge was concerned about the serious procedural errors by the in-house lawyer, which he regarded as resulting in “real uncertainty” as to the matters she took into account in reaching her decision, and in serious prejudice to the owner.

Bearing in mind also that conventional enforcement measures had not been taken, the judge’s conclusion was that an injunction was not a commensurate response to an alleged breach which is “far from being flagrant.”

The claim for an injunction was therefore dismissed.

The judge noted that it was still open to the Council to serve an enforcement notice, and indeed to the hotel owner to seek retrospective planning permission. Either of these routes “would enable the planning issues raised by this case to be evaluated by the local planning authority, through the transparent and consultative decision-making processes with public participation.”

The Council also sought declarations as to whether the Bell was being used as a hotel, and whether there had been a material change of use. The judge refused to grant any such declaration as it would wrongly pre-empt any subsequent decision by the planning authority and Secretary of State subsequently made under the standard process.

End of the line?

Presumably costs will follow the event. With its own lawyers’ fees to pay plus those of up to three separate legal teams on the other side, these will be substantial. No doubt the Home Office will be content that this outcome gives it some breathing space for its intended asylum law and accommodation reforms, by “encouraging” other Councils not to bring similar injunction claims. 

I have not seen any report of whether the Council proposes to appeal. The facts that the protests are less politically prominent now; that messages have been sent by the various successful prosecutions; and that the relevant use is to come to an end by April 2026 may militate against this. The Home Office has held the line and can claim victory on the point of principle, but the Council can also claim that its high-profile legal action has had the strategic effect of influencing the Home Office’s policy. That said, sometimes the litigation costs tail can wag the appellate dog, so it’s foreseeable that permission to appeal may be sought.

The in-house lawyer and delegation aspects

Despite the understandable criticisms made of the in-house lawyer’s approach, one may feel a certain sympathy for the position she found herself in. SRA records and LinkedIn indicate qualification as a solicitor in October 2024 (albeit with several years’ experience prior to that working on property matters) swiftly followed as appointment as interim head of legal in December 2024 then as head of legal and deputy monitoring officer in May 2025, just a few months before this case arose.

As a newly-promoted employee faced with a strongly expressed wish by councillors to take action, and in possession of an opinion of leading counsel which presumably gave some reason to think that this was viable, even with some risks, it would not have been easy to refuse to act.

She did have the opportunity to discuss the matter with the monitoring officer (who is presumably her line manager) shortly before the crucial Cabinet meeting on 4 August, and the monitoring officer briefed her on the meeting outcome immediately afterwards. But she wasn’t herself present, despite being the authorised decision-maker.

One may wonder about the ability of  such an employee in such an organisational set-up to exercise such a delegated power effectively in the manner which the courts expect. And assuming that similarly-placed people study and learn from the judgment, one wonders whether it will lead to substantively better quality decision-making, or just better decision-writing and box-ticking. 

Be that as it may, if a future Council were to follow a more effective process and provide more focused evidence of planning-relevant harms, it seems at least conceivable that a claim could succeed. But the nature of the South Bucks test is such that even a better-prepared injunction claim in these circumstances must have an inherent unpredictability.

 

Featured image: Epping Hall (where the council has offices) in 2023 by Richard Kelly, via Wikimedia Commons (CC BY-SA 4.0). Reproduced with thanks.