The issue of asylum seekers remains to be controversial and is now becoming an issue in the planning arena.
A number of companies have contracted with the Home Office to provide accommodation for asylum seekers whilst the initial legal processes for dealing with the claims for asylum are dealt with. The Secretary of State for the Home Department is under a duty under Section 95 of the Immigration and Asylum Act 1999 (“1999 Act”), alongside regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 to provide support for asylum seekers and their dependants “who appear to the Secretary of State to be, or likely to become, “destitute” within 14 days. Where an asylum seeker is at immediate risk of homelessness, the Home Office provides emergency accommodation under section 98 of the 1999 Act.
The process that takes place is that the Home Office will notify local authorities in areas where hotels have been identified as being suitable and available to house asylum seekers. The majority of local authorities then work with the contractors, the hotel and other relevant stakeholders to ensure the swift transition of the asylum seekers into the hotel for temporary emergency accommodation before they are moved onto more permanent accommodation or elsewhere for a number of reasons.
There have been a few local authorities who have embarked on an information gathering exercise by issuing Planning Contravention Notices, or general enquiries alleging a change of use to a House in Multiple Accommodation or to hostel from a hotel, alleging breach of development control, in an effort to prevent the hotels in their areas being used for these purposes.
Below is a summary of the cases that have either ended up in court or come into the public domain:
(1) The decision of the First Tier Tribunal Property Chamber in the case of MK Hotel, , Buckingham Road, Milton Keynes whereby West Northamptonshire Council had served a declaration under section 255(9) of the Housing Act 2004 that the property had been converted into a House in Multiple Occupation (“HMO”) when in use to house asylum seekers awaiting a preliminary decision on their claim. The case has clearly and neatly settled the issue that use of accommodation is not automatically a House in Multiple Occupation by making the following key findings; (1) under Section 255 of the Housing Act 2004, a local authority can issue a declaration if it is satisfied that one of the tests in section 254(2) has been met, (2) that in order to satisfy the criteria, the accommodation had to be the person’s only or main residence and that “residence” requires more than mere occupation; (3) that accommodation provided under section 98 of the Immigration and Asylum Act 1999 was “temporary support” and therefore did not provide the degree of permanence required for the purposes of Section 254 and that the accommodation had not been converted into a HMO.
(2) Ipswich BC v Fairview Hotels and others (2) East Riding of Yorkshire Council v LGH Hotels and others [2022]EWHC 2868 where both authorities sought to renew ex parte injunctions pursuant to Section 187B of the Town and Country Planning Act 1990, as amended, to restrain the apprehended breach of planning control of using the hotel buildings as hostels and therefore amounting to a material change of use requiring planning permission. It is important to note that the injunction sought prohibited the defendants in each claim from using not only the named hotel but also any other hotel in the jurisdiction of the local authority as a hostel, including as a hostel to accommodate asylum seekers. The court dismissed the claims in this respect as being without basis. Ipswich Borough Council (“IBC”) were found not to have made any effort to investigate how the Novotel hotel in its area was proposed to be used and to thereafter assess if there was any change of use, and if so whether it was material. East Riding Yorkshire Council (“ERHC”) considered the proposed accommodation of asylum seekers at the Humber View Hotel would involve the use of the building as a hostel and therefore was development by way of a material change of use without planning permission. The defendants in both cases strongly disputed that there was any breach of development control. The judgement sets out the sequence of events, the attempts by the IBC to seek information from the defendants about the proposed use, the service of a Stop Notice on realising that the use had commenced and resulting in the exparte injunction being sought for what the Council perceived to be a serious breach of planning control. Similarly, ERHC initially sought information from the Defendants and the Home Office on the use, but here the Council’s concern was more on the location of the Humber Bridge Hotel to a particular location and suicide risks and use of the hotel generally.
The Court confirmed key principles that the making of a change of use of itself did not amount to development and that the change had to be “material” in terms of planning considerations and is an issue of fact and degree. Importantly the court said that what had to be considered was the character of the use of the land and not the particular purpose of a particular occupier (Westminster City Council v Great Portland Estates plc), and to consider not only the on site but also the off-site effects of the character of the use of the land (Hertfordshire County Council v Secretary of State for Communities and Local Government).
The Court found that the defendants conduct in the matter had not been flagrant and that they had put forward “respectable arguments that no breach of planning control is involved” and court also considered the evidence put forward by a number of the defendants of the significant number of hotels being used to accommodate asylum seeker without action being taken by local authorities due to the significant increase of the arrival of asylum seekers. In deciding not to use the normal enforcement powers, the Court in paragraph 90 of the judgement made reference to the benefits of local authority officers formally recording the reasons for proceeding under Section 187B of the Town and Country Planning Act 1990 as such a serious step was being taken. This is measure that local authorities would be well advised to follow, as in our experience local authorities are failing to provide reasons for outright objections to hotels in their locality being used to house asylum seekers for emergency temporary accommodation and indeed requests for information under the Freedom to Information Act 2004 remain unanswered and can only lead to speculation for such action.
The Court found that the use of the Novotel for housing the asylum seekers as proposed was not materially different from the existing operation as a hotel, IBC did not establish that any change was material or that there would be any substantial planning harm and did not renew the injunction. With Humber View Hotel, the Court again said that the ERHC had not presented a case of substantial planning harm, and in both cases, took account of the arguments advanced by the hoteliers of the importance of the block bookings for the survival of the hotels. It is also important to note that both local authorities accepted that the proposed uses would not cause any environmental damage, or any harm to the amenity of neighbouring uses or to the character and appearance of the area, not traffic or transport issues and no changes to the buildings were proposed.
(3) Fenland District Council v CBPRP Ltd, Serco Ltd and H&H North Ltd [2022] EWHC 3132 (KB), concerned the Council again seeking an injunction to restrain the defendants from using or facilitating the use of any hotel, including the Rose and Crown, within the town of Wisbech as a hostel for the purposes of accommodating asylum seekers or at all. In the leading judgement by Mr Justice Holgate, he set out that it would be “inappropriate” for the court to grant any injunction other than in relation to premises for which sufficient evidence had been provided and rejected the claim to widen the scope of the injunction. The Court refused to grant the interim injunction on the following grounds (1) The Council’s argument that was put forward on the balance of convenience was that Wisbech was unsuitable for asylum seekers at any stage of the asylum process because they would be exposed to risks of harm due to the significant deprivation in the area, few transport link and public services all stretched. The Court was not satisfied of this argument as insufficient evidence had been put forward to substantiate this argument which lends credence to the viewpoint of a number of practitioners that local authorities relying on the “fear” factor, is simply not good enough. (2) Similarly critical of the inadequate evidence put forward about operations conducted historically in the wider area to tackle exploitation of vulnerable people and serious organised crime arising from the private sector and the lack of connection between such operations and the use of the Rose and Crown for temporary emergency accommodation. (3) The Court was not satisfied by the Council’s argument that the use of the Rose and Crown Hotel by asylum seekers caused planning harm as it was not available to the public and therefore did not contribute to the local economy for business and tourists guests. Reliance was placed on Policy LP6 of the Fenland District Council Local Plan which is designed to protect existing cultural, tourism and visitor facilities but the Court was not satisfied on this point and found that use of the hotel for accommodation asylum seekers was temporary and in any event the Council had other enforcement powers that it would have utilised. In his summing up Judge said;
“ In my judgment, taken at face value, FDC’s evidence does not demonstrate a serious level of risk to asylum seekers accommodated in a hotel such as the Rose and Crown. It does not call for any further explanation of alternatives to that hotel than has been provided in the evidence before the court. Furthermore, in my judgment it does not amount to a weighty factor, along with the planning matters referred to by Mr Harding, which would outweigh the substantial weight to be given to the need to accommodate asylum seekers in contingency IA in a system of supply which is having to deal with an unprecedented level of need under the 1999 Act. Overall, the immediate restraint of the continued accommodation of asylum seekers at the Rose and Crown would not be commensurate with the level of harm which, on the evidence before the court, the claimant has relied upon.”
(4) Great Yarmouth Borough Council v Al-Abdin & Others [2022] EWHC 3476 (KB)
Mr Justice Holgate again gave judgement in this case but it contrasts starkly with the decision in the Fenland District Council case on the issue of weight to be given to the long term strategy to protect and enhance tourism and facilities for tourism in the Local Plan Policy GY6. In this case the Council sought an injunction to prevent the defendants using the Villa Rose Hotel or any other hotel within an area protected by Policy GY6 of the Local Plan as a hostel for the accommodation of asylum seekers or at all.
Policy GY6 is entitled “Great Yarmouth Seafront Area” and is on the proposals map for the Local Plan and includes property facing onto the sea and sections of side streets lying immediately behind that frontage. The allocated area included the Villa Hotel but not the Victoria Hotel. The Victoria Hotel was already an approved hotel by the Home Office and the Villa Hotel was one that was being proposed to be used by its owners and therefore both were under consideration for the purpose of the injunctive proceedings. In this case Mr Justice Holgate said that the policy was a “highly specific, protective policy directed to a large and highly important sector of the Borough’s economy.” The judgement made the following findings:
- Villa Hotel was already subject to an Enforcement notice issued in 2006 against unauthorised material change of use from hotel to sui generis use of hostel, that the notice was extant and any change of use to a hostel would be a criminal offence under the Town and Country Planning Act 1990;
- That Policy GY6 is a material planning consideration as its aim is to protect a substantial part of the local economy dependant on tourism;
- That the Villa Hotel was on the protected seafront area;
- Factors pointing to a hostel use were said to be the premises being block booked for substantial period of time, solely for occupation by people belonging to one cohort, asylum seekers having nowhere else to live, a degree of management of the movement of residents, duration for their transient occupation based on those staying at the Victoria hotel, was that the period of stay had increased substantially, and payment was made by the Home Office;
- Factors pointing to hotel use were no alterations to the premises, no dormitories and the operation would be very similar to that carried out by a hotel and
- That the asylum seekers will have very limited funds and there would there by no expenditure in the town and he considered this to be a highly relevant factor leading to a loss to the local economy.
Conclusions
The cases go some way in providing all stakeholders of important principles to bear in mind when the issue arises of whether or not a material change of use has taken place, whether planning permission is required, whether there is any planning harm and to understand properly the nature of the use bearing in mind the repeated mantra that there is very fine line between hotel and hostel use. The Great Yarmouth case is not so straightforward, Mr Justice Holgate clearly gave great weight to the need to uphold the protection of Policy GY6 and the fact that one of the hotels fell within the designated area, and the supporting arguments of the important of the location in terms of tourism, local economy is understandable. However the factors identified by him as pointing to a hotel or hostel use seem to confuse the issue as in most cases both are present and yet the courts have held that there was no material change of use. The lesson to take away from the decisions to date is that the use of hotels for temporary emergency accommodation for asylum seekers is not a material change of use requiring planning permission, unless there are strong policy reasons supported by strong evidence to justify otherwise.
[2] [2013] JPL 560
