Whilst the political implications of last week's interim injunction against housing asylum seekers in a hotel in Epping are considerable, is it a significant development in planning law terms?
When is a hotel not a hotel?That is the existential planning law question that sits behind the recent media frenzy about the use of hotels by asylum seekers.Planning lawyers may well be mystified why the interim injunction preventing the use of the Bell Hotel in Epping by asylum seekers has received so much attention. Media coverage has largely failed to mention that the courts have previously granted several such interim injunctions in relation to other hotels, dating back to at least 2022 - notably under the previous government.
Applications for interim injunctions are determined based on limited evidence before the court, and generally do not involve a detailed assessment of the facts and grounds. Interim injunctions against the use of hotels by asylum seekers are rarely made permanent when the claim is determined at a full hearing. Again, this important consideration has not featured in most media reports. Cases are highly fact-dependent, meaning that the Epping decision is actually of limited value as a precedent. At paragraph 42 of his judgment, Eyre J said – in words that should perhaps have been printed in bold and underlined for the benefit of the media and politicians alike:
"There is simply no general rule that use of a hotel to house asylum seekers either should or should not be subject to an interim injunction under section 187B."
The substantive planning issue at stake here is whether the use of a hotel to accommodate asylum seekers represents a material change of use such that planning permission is required.The Use Classes Order divides certain uses into categories that share common land use characteristics. The purpose is to ensure that variations in the use of individual buildings within each class are not regarded as material changes of use and therefore do not require planning permission. This avoids the planning system being overwhelmed and enables planning policies to be applied across a range of developments that may vary in use by degrees, but have similar land use planningimpacts.
This is both sensible and efficient, so long as the categories remain valid. But anyone working in the living sector will be aware of the increasing problems with the Class C categories as a result of the expansion of living products in recent years.Class C1 encompasses use as a hotel, boarding or guest house where no significant care is provided. Use as a hostel is specifically outside this category and is classified as sui generis. But now we also have apart-hotels, extended stay hotels, serviced apartments, capsule and pod hotels – do they fall within or outside Class C1? Similar problems abound with Class C3 residential uses now that we have more student housing, co-living, second homes and holiday lets. HMOs and senior living give rise to their own issues. The question is always whether different uses are so different in land use planning terms that changes between them should be regarded as a material change of use. This is highly fact-dependent and therefore, as planners are fond of saying, it is a question of fact and degree each time. This uncertainty is problematic, not least for planners and lawyers asked to give clear advice on these questions. Reforming the Use Classes Order to better reflect the diversity of the modern living sector would be very welcome.
In the case of asylum seekers, the government could fix the present issue relatively easily by amending the Use Classes Order to state specifically that Class C1 includes use by persons awaiting determination of a claim for asylum in the UK. This reflects the position that had largely been assumed to be the case hitherto, but it is likley that an explicit statutory provision to that effect would be regarded as controversial politically and so we will probably not see this approach taken by the government.
The operators of the Bell Hotel have announced that they will apply for permission to appealthe decision to grant an interim injunction and the government is also seeking to intervene in the case in order to ensure that hotels can be closed "in a managed and ordered way". However, in the meantime, we may well see a flood of claims for injunctions, each of which will need to be determined carefully according to the case-specific facts, local planning policies and wider land use planning circumstances.
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