When considering the subject matter, court battles from Brighton to Epping Forest may appear worlds apart but both highlight a common conflict between local and central government.
A few years ago, the headlines were about the Home Office’s use of a hotel in Hove to house unaccompanied asylum-seeking children.
More than 1,600 children stayed there, with an alleged 136 – or more – reported missing.
It was a safeguarding scandal that led Brighton and Hove City Council, backed by the charity ECPAT, to take the Home Office to court.
The High Court agreed with the council. Judges said that while a hotel might be used in a genuine emergency and for a very short period but the Home Office’s routine practice of placing children there was unlawful.
Unless you’ve been hiding under a rock, you’ll also have heard about the Epping Forest case. The political colours there are different to Brighton – but the case also highlights the dramatic conflict between local and central government.
Epping Forest District Council went to court to stop a hotel being used as accommodation for asylum-seekers.
Usually, councils use enforcement notices, which take longer. This time the council applied for an injunction – the quickest and strongest option available – the “nuclear option”.
The High Court accepted that the hotel’s use had changed. Hotels are normally Class C1 in the planning system while long-term asylum housing was treated as “sui generis” – a Latin translation from “of its own kind”.
On that basis, the court found that a change of use had occurred without planning permission and granted the injunction.
The order applied to the building’s use, not to the people living there. Moving residents remained the Home Office’s responsibility.
The Epping Forest case is now going to the Court of Appeal – and quite possibly the Supreme Court.
The case will undoubtedly set the backdrop as to how such situations will be treated in the years to come.
Taken together, the Brighton and Epping Forest cases show just how sharp the conflict between local and central government has become – irrespective of the local authorities’ political allegiance.
Colm McKee is a planning consultant and director of CMK Planning.
It’s nice to read a piece from an expert. I have a question.
Suppose a hotel continues to operate in its normal way alongside asylum use, for example. In that case, it is still accommodating paying guests, weddings, conferences, etc. Then, an argument could be made that the primary lawful use (Class C1) remains intact? My understanding is that in planning law, a material change of use only occurs if the character of the use is fundamentally altered?
Hi Benjamin,
Thank you for taking the time to read the article – your question is very valid, and the issue arises regularly in planning across a wide range of applications that involve some element of change of use.
It would essentially come down to a planning judgement based on fact and degree.
For example, if a certain percentage of rooms were being used for asylum seeker accommodation but the C1 use continued otherwise, the Council could then decide whether a change of use had actually occurred. However, even suggesting a “threshold” percentage is difficult (though it would undoubtedly need to be at the lower end), as it depends on the circumstances. A hotel with 100 rooms offering 5 for asylum seekers would be very different from a hotel with 10 rooms offering 5 for the same purpose.
Other factors would also come into play. For instance, if the use was only for a few days, it might not differ significantly from traditional C1 hotel use. Similarly, if a certain number of rooms were used only occasionally, or for a limited number of months, the impact might be viewed differently.
Alternatively, the Council could take a middle-ground view and determine that a part change of use had taken place. In that case, they might require a retrospective planning application for that specific element, which would then effectively create a mixed-use development.
Ultimately, it is a matter of judgement for the Council, and it is not one size fits all. The decision would rest on fact and degree, taking into account various considerations such as the proportion of rooms, the frequency of use, and the length of stay of individuals. In fact, you might even have two different Councils assessing a very similar situation and arriving at different conclusions.
The Epping Forest case is a lot more clear-cut, as I understand it involved 100% of the rooms, and this is probably why the Council were content – or confident – with an injunction, as ultimately there wasn’t really any “grey area” when considering planning law in isolation.
Thanks again for taking the time to read the article,
Colm
That’s really interesting, thank you for taking the time to explain it. I hope you write more for B&H News; planning proposals always seem to encourage a lot of discussion!