Epping Forest in the Court of Appeal

The judgment of the Court of Appeal in the Epping Forest case (Somani Hotels Ltd v Epping Forest DC v Secretary of State for the Home Dept [2025] EWCA Civ 1134) raises difficult issues concerning the extent to which public protest can and should be taken into account in the enforcement of planning control. The Court stated that “The fact of protests outside a building is not an obvious matter which falls within planning control”, but did not conclude that lawful or unlawful protest was legally irrelevant. Instead, the Court held that the Judge who determined the interim injunction application appeared not to have considered the risk that the grant of an injunction might encourage further protests and unlawful activity elsewhere.

Whether or not protests outside a building are an “obvious” planning control matter, it seems plain as a matter of statutory obligation, planning policy and case law that planning control and planning enforcement decisions should have regard to the public order effects of development. Section 17(1)(a) of the Crime and Disorder Act 1998 imposes a duty on local authorities to exercise their planning (and other) functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that they reasonably can to prevent, crime and disorder in their area (including anti-social and other behaviour adversely affecting the local environment). Paragraph 96(b) of the National Planning Policy Framework advises that planning policies and decisions should aim to achieve healthy, inclusive and safe places which are safe and accessible, so that crime and disorder, and the fear of crime, do not undermine the quality of life or community cohesion. And in West Midlands Probation Committee v SSE and Walsall MBC (1997) JPL 323, which concerned the use of a building as a bail and probation hostel that had attracted numerous visits by the Police, the Court of Appeal held that the fear of crime, which had diminished the amenity of the area, was a material planning consideration in that case.

Although neither the hotel operator nor the Secretary of State sought to argue that public protest was incapable of being a material consideration, the Court held there was force in the Secretary of State’s concern that to give it weight, even limited weight, in favour of the grant of an injunction would be to encourage further protest. The Court was also sympathetic to the Secretary of State’s contention that a series of ad hoc injunctions would affect the capacity of the wider system for accommodating asylum seekers. These were matters the Court held should have been considered at the interim application stage.

These conflicting considerations point to a curious feature of this and similar cases. For the time being the Secretary of State wishes to carry on using hotels to accommodate destitute asylum seekers, yet it is left to local authorities to determine whether this is lawful and acceptable. The Government could remove all doubt (and any local control) by amending the General Permitted Development Order to grant automatic planning permission for this use of hotels, or by amending the Use Classes Order to make clear that hotel use within Class C1 includes use for the accommodation of asylum seekers. Or if local authorities are still to have a say, the contracts between Home Office service providers and individual hotel operators could require that a planning or lawful development certificate application is made at the earliest opportunity. As it is, the Home Office seems to take the view that planning permission is not needed, but no one involved in the provision of asylum seeker accommodation appears to want confirmation of this in the form of a lawful development certificate.

So, local authorities (who are responsible for enforcing planning control) must judge for themselves whether the use of hotels to accommodate asylum seekers is lawful. If not, they can take enforcement action where this is “expedient” (convenient or appropriate in the circumstances). When issuing legal proceedings a local authority is expected to act in the interests of the inhabitants of its area (s 222(1) of the LGA 1972), but the Home Office will now say that the national need for a “structured response” trumps whatever local concerns there may be. This is not a recipe for happiness in central or local government.

Robin Green is a barrister at Cornerstone Barristers. He appeared for Epping Forest District Council at the Court of Appeal.