High Court refuses to extend interim injunctions stopping hotels from accommodating asylum seekers

A High Court judge has refused to extend 'without notice' interim injunctions obtained by Ipswich Borough Council and East Riding of Yorkshire Council that blocked the accommodation of asylum seekers in local hotels.

Handing down the judgment on Friday (11 November), Mr Justice Holgate said the councils, which both argued the use of the hotels constituted a material change of use requiring planning permission, had failed to present cases of substantial planning harm.

In Ipswich BC v Fairview Hotels and others; and E. Riding of Yorkshire Council v LGH Hotels and others [2022] EWHC 2868 (KB), Holgate J added that: "it would not be commensurate with the evidence on planning harm (including the urgency alleged) for the injunction to be continued until trial" in both cases."

Late last month, Ipswich and East Riding obtained interim injunctions a day apart from one another in efforts to block Home Office plans to place asylum seekers in hotels in their areas.

Under the plans the 101-room Fairview Hotel in Ipswich and 77 rooms in the Humber View Hotel in North Ferriby would be block-booked.

The Home Office has block-booked numerous hotels across the country as part of a scheme to alleviate pressures on accommodation centres and on temporary processing centres amid record numbers of asylum seekers arriving in the UK by boat.

In correspondence with the Home Office in late September, East Riding argued the hotel chosen to accommodate asylum seekers in its area was isolated, lacked access to public transport, was far away from services, and that there were road safety considerations.

Ipswich meanwhile said booking the Fairview Hotel, the biggest in the town centre, "would be hugely damaging to the hospitality and leisure economy of the town". Ipswich also argued that school places in the area were limited, health services lacked capacity, and police had raised concerns relating to "community tension".

In both cases, Holgate J brought attention to the fact that neither of the councils' initial protests had suggested that a breach of planning control would be involved.

Later, the two councils both argued that the proposed use for the respective hotels would constitute a material change of use requiring planning permission.

Accordingly, they sought enforcement by relying upon the power in section 187B of the Town and Country Planning Act 1990 to apply for an injunction to restrain the apprehended breach of planning control.

On 27 and 28 October, Jacobs J granted ex parte - or 'without notice' - interim injunctions, directing that a judge should consider both injunctions at a hearing.

Considering whether the injunction should be continued until trial, Holgate J tackled four issues at a hearing on 8 November: whether the case was a triable issue, adequacy of damages, the balance of convenience, and planning harm in relation to both hotels.

Richard Kimblin KC, on behalf of Fairview Hotel, submitted that the issue was not triable as the proposed operation of the Novotel does not differ from the existing operation in any material way, and Ipswich failed to address whether any change of use would be material.

However, Holgate J dismissed Kimblin KC's point. He said: "The starting point is that the distinction between hotel and hostel use in a case of the present kind is fine.

"There are some factors pointing against a hostel use. The proposed use involves no alteration of the premises. In many ways the operation of the Novotel would be similar to that carried out ordinarily by the hotel operators. There would be no dormitories and the accommodation could not be described as basic or inexpensive.

"On the other hand there are factors pointing to a hostel use. The premises would be block-booked for a substantial period of time solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live. The duration of their transient occupation would be determined by their move to the next stage of the asylum process. The accommodation would be paid for ultimately by the Home Office.

"It is arguable that the factors pointing towards a hostel use outweigh those pointing against."

He added that the effect of the block-booking is that "no accommodation is available for any member of the public" and acknowledged that the loss of the accommodation would "be damaging to the hospitality and leisure economy of the town".

"It is arguable that this alleged harm is a planning consideration which may render a change to a hostel a material change of use and so attract planning control", he continued.

On the damages point, Ipswich and East Riding's ex parte injunctions were granted on the basis of each of the claimants giving a cross-undertaking as to damages. However, at the hearing, both councils contended that the injunctions should continue without any such undertaking because they are performing a law enforcement role.

The defendants accepted that position, even though some claimed they would suffer some loss if the injunction remained in place. "[The] main focus of the submissions of all defendants", the judge said, "was on the harm to asylum seekers who would otherwise be accommodated in each hotel if the relevant injunction were to continue."

In this context, all parties agreed that in order to determine each application to continue the injunction until trial, the court needed to address the balance of convenience.

On this issue, Holgate J first drew attention to the claimants' argument that the proposed use of the hotels would represent, in each case, "a serious and flagrant breach of planning control".

The judge did not accept that the alleged breaches in those claims should be treated as flagrant.

"In each case the alleged breach is based upon a fine distinction between hotel and hostel uses. This is not a case where the breach of planning control is clear, such as, for example, the carrying out of significant operational development", he said.

"Nor is any breach flagrant in the sense of being carried out in an area of environmental sensitivity or in an area subject to strong development control policies, such as the green belt", Holgate J added.

He continued: "I say this for a combination of reasons. First, the defendants advance respectable arguments that no breach of planning control is involved.

"Second, evidence has been given by [contractors employed by the Home Office to book the hotels, Serco, LGH and Mears] of having made sole use arrangements with a significant number of hotels to accommodate asylum seekers without action being taken for an alleged breach of planning control, at least not until proceedings started to be brought recently."

"For example, LGH operates or has operated sole use arrangements at 18 hotels. Serco provides temporary initial accommodation in 84 hotels. Mears provides for 5,000 asylum seekers in 80 hotels. Third, the Home Office notified [Ipswich] and [East Riding] of its proposals, invited discussions with the local authorities and other service providers and addressed concerns.

"Fourth, in the case of [Ipswich], from the notification by the Home Office of its proposal, the authority took over a month to say that a breach of planning control was involved. Then a cursory investigation was carried out in the week in which proceedings in the High Court were launched. In the case of [East Riding] the authority first raised the possibility of enforcement action just over 3 weeks after the Home Office notified them of its proposal."

Holgate J then turned to consider the harm that the continuation of the injunction would cause.

He acknowledged that in the wake of the Covid pandemic, which significantly affected bookings, the contracts represented "a financial lifeline" for one hotel "potentially securing its future". He also found that the booking would benefit another hotel which had been operating at a loss.

The judge also gave substantial weight to the harm of barring the asylum seekers from being accommodated in the hotels at a time when the Home Office is facing an "unprecedented increase in the number of asylum seekers, the vast majority of whom have to be accommodated under the 1999 Act".

Holgate J said: "As matters stand, there is no sign of this abating. The Home Office has therefore had to commission, as a matter of urgency, sole use contracts for hotels in various parts of the country as contingency IA facilities. These contracts are also intended to alleviate conditions at the Manston processing centre. It can seen from the evidence that without such facilities there is a real risk of some asylum seekers becoming homeless."

The judge continued: "In reality, if either or both of the injunctions were to be continued, the Home Office would have to look for accommodation elsewhere. It is clear from the evidence that it is difficult to secure hotels suitable for single-use contracts. The supply is limited. In addition, the process involved takes several weeks. The court is not in a position to draw conclusions on the scope for alternative accommodation to be provided. But bearing in mind the very large and rapid increase in the requirement for accommodation for asylum seekers, that does not detract from the substantial weight which I consider should be given to this harm."

Holgate J then considered the planning harm for each hotel.

“In the circumstances, [Ipswich] has not presented a case of substantial planning harm”, Holgate J found.

Holgate J said he had already dealt with the matter raised other than the effect of the “loss” of the hotel.

Ipswich’s Assistant Director for Governance and Monitoring Officer, Shirley Jarlett, claimed in a witness statement that it “can be argued that the [loss of the hotel] would have a damaging impact on the economy of the town and in particular the local hospitality and leisure sector who benefit from hotel residents”.

The judge said: “The temporary stop notice refers to some policies in the development plan relating to the loss of the hotel, but they have not been produced and their implications have not been further discussed. As Mr. Kimblin and [Paul Brown KC, who represented Serco,] pointed out the language in the witness statement ‘it can be argued that’ is tepid.

He continued: “I bear in mind that the proposed use is temporary in nature and so the loss referred to would be temporary. If there is a concern that that may turn out not to be the case, there are plenty of other weapons in the LPA’s enforcement armoury to tackle the issue. That in itself would not justify immediate restraint of the proposed use.”

Turning to the planning harms involved in the use of the hotel in East Riding, the judge said: “Although not raised initially, the economic impact of the hotel not being available for use by the public is now the main point discussed in the witness statement [Hazel Walsh, East Riding’s Planning Enforcement Team Leader] along with relevant policies of the development plan.”

Walsh argued that the that the loss of the hotel would be detrimental to key employment sites in the area which benefit from the availability of accommodation at the hotel, and that the semi-rural location enables the hotel to operate as part of the local tourism economy.

“As against those concerns, the proposed use of the hotel is intended to be temporary”, the judge said.

He continued: “Additionally, there is the evidence of the precarious financial position of the Humber View Hotel and of the risk of it closing should the injunction be continued. In these circumstances, I do not attach any significant weight to this aspect of harm.

“It is also now suggested in the witness statement that the use of the hotel as a hostel ‘could’ have a negative impact on the marketing of the Humber Bridgehead site. The suggestion is tentative and has not been developed.”

The Home Office addressed the other issues raised by East Riding, including the relationship to services, in correspondence and in a meeting, the judge said.

In his judgment, East Riding did not presented a case of substantial planning harm.

In the circumstances of both the Ipswich and East Riding hotel, Holgate J said: “I consider that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it. I do not consider that the preservation of the status quo materially alters the balance. As is clear from American Cyanimid at p. 408G, the status quo in this case is not simply concerned with the subject premises, the hotel. The use of the hotel forms only part of a much larger programme for accommodating at short notice a large number of asylum seekers. The injunction would interfere with the implementation of part of that programme already being undertaken.”

Holgate J concluded that it would not be commensurate with the evidence on planning harm (including the urgency alleged) for either injunctions to be continued until trial.

A spokesperson for Ipswich Borough Council said the local authority was "very disappointed” with the decision.

The spokesperson added: “It will now consider the judgment and its options including its application for an injunction at the final hearing and other planning enforcement measures relating to the use of the Novotel Hotel.”

A spokesman for East Riding of Yorkshire Council confirmed that the council was also considering its legal position in respect of the final injunction hearing “and any other methods of planning enforcement available to us in due course”.

It added: "The council takes all breaches of planning law seriously and will continue to do so.”

Jade Chalmers, partner at Howard Kennedy LLP, the law firm representing Fairview Hotels (Ipswich) Ltd, said: “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. 

“This continues to be a matter between central and local government. Our client is grateful to the court for its very prompt resolution of the issue, and for ensuring that those who are merely responding to this extraordinary national challenge are not stopped by the use of draconian measures such as without notice injunctions.”

Adam Carey

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