Planning Control vs Public Policy: Lessons from Epping Forest DC v Somani Hotels Ltd

Material Change of Use

At the heart of this case is a familiar question: when does a hotel cease to function as a hotel for planning purposes?

The Bell Hotel in Epping, historically operating within Class C1 use, has in recent years been used extensively to accommodate asylum seekers under arrangements linked to the Home Office. Epping Forest District Council argued that this amounted to a material change of use—effectively transforming the property into a hostel or sui generis use—thereby requiring planning permission.

The harms associated with this unauthorised change of use, alleged by the Council, included increased:

• Pressure on local health and social service;
• Risk of anti-social or criminal behaviour; and
• Community tension and disruption, including protests.

Somani Hotels, by contrast, maintained that the provision of typical hotel services meant the use remained within Class C1.

Planning Enforcement Framework

Where a breach of planning control is alleged, the usual enforcement route is an enforcement notice, which must set out reasons and refer to relevant policies. The recipient may appeal to the Secretary of State. The appeal decision is capable of further legal challenge on points of law.

Local planning authorities may also issue a stop notice requiring immediate cessation of activity, but this is not available where the use has been continuous for more than four years.

Under section 187B of the Town and Country Planning Act 1990, a local planning authority may apply for an injunction where it considers it necessary or expedient to restrain an actual or anticipated breach of planning control. As an equitable form of relief, injunctions are inherently discretionary and typically approached as a “lender of last resort” remedy.

Interim Relief

The first stage of this litigation centred on the Council’s attempt to secure an interim injunction under section 187B.

The High Court initially granted such injunction, requiring the hotel to cease accommodating asylum seekers pending substantive trial. However, the Court of Appeal took a markedly different approach, overturning that decision and identifying a series of important legal and procedural issues.

Most notably, the Court of Appeal emphasised that interim relief in planning cases must be approached with a careful and balanced assessment of the wider public interest. In this case, that included the national implications of disrupting asylum accommodation, the risk of injustice to residents facing displacement, and the interest in preserve the status quo pending a full determination.

The Court was also critical of the weight given to local opposition—particularly where it included unlawful protest activity—and of the failure to properly account for delays in enforcement and decision-making. The Council had been aware of the use for several years, yet formal action was only pursued much later, raising questions of procedural fairness.

With the Supreme Court declining permission to appeal, the Court of Appeal’s decision in the interim relief proceedings stands as a significant marker.

The Substantive Judgment

At the substantive trial, back in the High Court, the Court rejected the claim that there had been a flagrant breach, noting the long-standing uncertainty over appropriate use classification and the Council’s lack of earlier enforcement action.

In the Court’s view, the alleged planning harms were undermined by the lack of evidence. Protest activity was given limited weight, consistent with established planning principles that opposition alone is not a material planning consideration.

The Court balanced the Claimant’s grounds against countervailing factors such as:

• The statutory duty on the Home Office to provide accommodation and support for asylum seekers;
• The critical role of contingency accommodation in meeting urgent and unpredictable demand; and
• The practical difficulty of sourcing suitable alternative accommodation at short notice.

While the Court accepted that there was an arguable case of material change of use, it concluded that the threshold for injunctive relief was not met.

Key reasons for refusing the injunction included:

• The relative “degree and flagrancy” of the breach;
• The absence of sufficiently serious or evidenced planning harm, particularly where the current use is likely to be temporary in nature; and
• The availability of alternative enforcement mechanisms that had not been exhausted, contrary to the Council’s own enforcement policies and national planning practice guidance on enforcement.

The Court also declined to grant declaratory relief, holding that this would improperly pre-empt the statutory planning process, including applications for lawful development certificates and enforcement appeals.

Practical Lessons

For local planning authorities, the case signals the risks—both legal and financial—of prematurely seeking injunctive relief.

In this case, the Council had repeatedly invited the hotel operator to apply for temporary planning permission to regularise the alleged breach, but had not served an enforcement notice requiring the use to cease. As per paragraph 225 of the judgment:

Had the Claimant been of the view that the unauthorised use was causing or likely to cause unacceptable planning or environmental harm, let alone irreparable harm, it lay within its powers to take enforcement action. It chose not to do so.

In these circumstances, the Court was not satisfied that the threshold for injunctive relief had been met. At paragraph 218, it held:

Where conventional enforcement measures have failed over a prolonged period, the court may be more ready to use its own coercive powers to grant an injunction. Conversely, the court may be more reluctant where, as in the present case, enforcement action has never been taken.

For developers and operators, the case underscores the importance of recognising when evolving operational contexts may alter the nature, pattern, and character of a use to such an extent that it constitutes development requiring planning permission.

For planning lawyers and other planning practitioners, the case serves as a useful reminder that it is very rarely appropriate for the Court to determine planning questions through declaratory relief. The statutory planning regime allocates decision-making on such issues to local planning authorities and, on appeal, to the Secretary of State.

Broader Significance

Importantly, the case does not determine whether a material change of use has occurred. Nor does it resolve the broader policy debate around the use of hotels for asylum accommodation. Instead, it serves as a clear reminder of the high threshold for securing injunctions and declaratory relief in planning matters.

More broadly, the case highlights potential tensions between local planning frameworks and centrally determined public policy objectives. As similar cases arise, the courts are likely to remain a key forum for airing—if not fully resolving—those tensions.

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