Epping Forest District Council v Somani Hotels: Court of Appeal refuses permission on all grounds

The Court of Appeal has refused Epping Forest District Council ("EFDC") permission to appeal the dismissal of its claim for an injunction under section 187B of the Town and Country Planning Act 1990, bringing to a close a protracted attempt to halt the use of the Bell Hotel, Epping, as contingency accommodation for asylum seekers.

The Bell Hotel sits within the Metropolitan Green Belt and the Bell Common Conservation Area. Its owner, Somani Hotels Limited, had contracted with Home Office service providers to accommodate asylum seekers across three separate periods since 2020. EFDC took the view that this constituted a material change of use from the hotel's lawful planning use, amounting to a breach of planning control.

Rather than pursue the conventional enforcement route — issuing an enforcement notice and allowing the matter to be resolved by a Planning Inspector — EFDC applied directly to the High Court for an injunction. Mould J dismissed the claim in November 2025, and EFDC sought permission to appeal on four grounds.

The permission application

Lady Justice Andrews and Lord Justice Holgate refused permission on all grounds, finding none to be arguable with a real prospect of success.

On the first ground — that the judge had failed to determine whether a breach of planning control had occurred — the court was unpersuaded. Mould J had expressly assumed in EFDC's favour that a breach had taken place, finding it unnecessary to resolve the question definitively before concluding that injunctive relief was not warranted. The Court of Appeal held this approach was entirely proper. As the court observed, the factors relevant to whether a material change of use has occurred are conceptually distinct from the harm-based analysis that governs whether an injunction under section 187B is an appropriate and commensurate remedy.

The court was equally dismissive of the related argument that a declaration should have been granted. Parliament had allocated the function of determining breaches of planning control to local planning authorities and to Planning Inspectors on appeal. It was inappropriate, particularly where serious procedural concerns attended the LPA's own decision-making, for the court to usurp those functions by declaration.

Discretion and harm

On the second ground, the court examined a series of specific complaints about Mould J's exercise of discretion. All were rejected. The judge had been entitled to give significant weight to the ongoing statutory duty of the Secretary of State for the Home Department to accommodate destitute asylum seekers — a plainly material planning consideration. He had also been entitled to find that local residents' fear of crime, while understandable, arose from the conduct of specific individuals rather than from the land use itself, applying well-established principles from West Midlands Probation Committee v Secretary of State for the Environment (1998).

The absence of any contemporaneous record of the Legal Services Manager's delegated decision — described by the judge as a "serious procedural error" — and the failure to serve pre-action correspondence on Somani or to notify the Home Office, had materially undermined EFDC's case. The court noted it was "highly unusual" to see a local planning authority pursue enforcement by injunction on such a basis.

Costs and interveners

On costs, EFDC challenged the order to pay the Secretary of State's costs as first intervener and the payment on account of £95,000 ordered in favour of Somani. Both challenges failed. The court confirmed that Mould J had correctly applied the Bolton principles in awarding the Secretary of State her costs, given her identifiable separate interest and the material contribution her evidence made to the proceedings. The procedural unfairness argument regarding the payment on account was rejected; EFDC had the opportunity to respond to Somani's costs schedule and failed to take it.

Key takeaways

The judgement reinforces that section 187B injunctions remain a remedy of last resort, generally inappropriate where conventional enforcement measures have not been attempted. The availability of enforcement notices — and the structured appellate process they attract — will ordinarily be the proper vehicle for contested questions of material change of use. Authorities that bypass that process without compelling justification, and without adequate documentation of the decision to do so, face considerable difficulty persuading the court to exercise its discretion in their favour.

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