In light of the recent challenges to the use of hotels and hostels for the provision of temporary emergency accommodation of asylum seekers, Buckles is following the progress of challenges and issues in this area.
Recent Judicial Decisions
1.Westminster City Council v. Secretary of State for Communities and Local Government and others [2015] EWCA Civ 482
The issues were:
- Whether the use of the premises for the accommodation of asylum seekers was a mixed use as a hotel and hostel and
- If so, whether this amounted to a material change of use requiring planning permission.
The planning inspector decided that even if there was a mixed use, it did not amount to a material change of use. On appeal, the Council challenged each of the findings based on errors of law.
The Law
The distinction between a hotel use and hostel use is a fine one. This is determined on a fact and degree basis. In Panayi v Secretary of State for the Environment and Hackney LBC [(1985) 50 P&CR 109, it was argued that the presence and use of some of the features combined were sufficient to distinguish the use of the premises as that of a hostel.
In Commercial and Residential Property Development Company Limited v Secretary of State for the Environment [1982] JPL 513, Glidewell J defined a hostel for the purposes of town and country planning as a transient accommodation which had many of the characteristics of a hotel, people coming and going, people booking in and checking out, people arriving and leaving. Furthermore, it was suggested that if a hostel use were merely incidental or ancillary to a hotel use, it would be treated as a hotel use and would be within class C1.
A change of use from hotel use to a mixed hotel and hostel use will require planning permission only if it is a material change of use. In ascertaining whether there is a material change of use, the off-site effects of the use such as traffic generation and the form of intensification of an existing use are relevant considerations per Forest of Dean District Council v Secretary of State for the Environment [1995] JPL 937 and Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473
Held: The use of the property as assessed by the inspector had characteristics of a hotel and “some elements of a hostel use”. Hence, there was a mixed hotel and hostel use as alleged in the enforcement notice. The inspector failed to factor in the off-site impacts in determining whether was a material change of use. Therefore, the inspector’s reasoning on the enforcement notice was inadequate.
Decision: The Appeal was granted, and the decision sent back to the Secretary of State for re-hearing and determination.
2. Ipswich Borough Council v Fairview Hotels and, East Riding of Yorkshire Council v LGH Hotels and others [2022] EWHC 2868 (KB)
The claimants were both local authorities: Ipswich Borough Council (IBC) and East Riding of Yorkshire Council (ERYC). The defendants are made up of three parties: hotels (Novotel Hotel and Humber View Hotel), their management companies and companies contract by the Home Office to provide initial accommodation to Asylum Seekers.
The claimants sought to take enforcement actions against the hotels through injunction applications to restrain an apprehended breach of planning control. These claims were against the proposed use of the hotels to accommodate asylum seekers. The Councils alleged that the proposed use for accommodation of asylum seekers in the hotels meant that the buildings were being used as hostels. Consequently, these would result in a breach of planning control particularly, a material change of use without planning permission.
The Law
A material change of use is determined through a matter of fact and degree. Per Westminster City Council v Great Portland Estates plc [1995] AC 661 at 669G and Hertfordshire County Council v Secretary of State for Communities and Local Government [2013] JPL 560; Westminster City Council v Secretary of State for Communities and Local Government [2015] JPL 1256.
An LPA cannot serve an enforcement notice unless they consider it “expedient” to do so, having regard to the development plan and any other relevant planning considerations. In Ardagh Glass Limited v Chester City Council [2009] Env LR 34 HHJ, this “expedience” is indicated by balancing the advantages and disadvantages of taking a particular course of action.
Held: The proposed use involved no alteration of the premises, operation was similar to that of ordinary hotel operators, would be no dormitories and this accommodation was not basic nor inexpensive. The court said that block-booking the premises for the asylum-seekers was more akin to hostels with the Home Office paying for the accommodation. But on balance the use was as a hotel. Furthermore, it was held that even if a hostel use was involved, the question was whether this would represent a material change of use. This was dependent on the planning consequences of the change. And with each of these cases, the proposed use would not cause any environmental damage or any harm to the amenity of the neighbouring uses or any harm to the character and appearance of the area. Additionally, the buildings would not be altered nor generate traffic issues. Therefore, there was therefore no material change of use.
Decision: Injunction denied
3. Fenland DC v CBPRP Ltd and others [2022] EWHC 3132 (KB)
The claimant was the Fenland District Council against CBPRP Ltd, SERCO Limited and H & H North Limited. The claimant, Fenland District Council (“FDC”) is the local planning authority for its district who sought an injunction to restrain the defendants from using or facilitating the use of any hotel within the town of Wisbech to accommodate asylum seekers.
The defendants had block-booked the Rose and Crown hotel to accommodate asylum seekers. No physical alternations have been made to the hotel and none have been proposed. The hotel had its own staff, who operated the reception, cleaned the rooms as well as prepare and serve meals. The first issue was whether the hotel was unsuitable for initial accommodation. It was held the suitability of the hotel came down to the nature and extent of the risks disclosed.
The second issue was whether the immediate restraint by injunction rather than by enforcement action would be “commensurate” with the harm alleged by FDC. It was held the use of the hotel would not cause environmental damage or harm to amenity nor have any impact on traffic generation or on the highways. It was held that FDC’s evidence did not demonstrate a serious level of risk to asylum seekers accommodated in Rose and Crown.
Decision: The injunction was denied.
4. MK Hotel, Buckingham Road, Deanshanger, Milton Keynes, MK19 6JU: CAM/00MG/HM
The issue before the tribunal was whether the operation of the property to house asylum seekers converted the hotel into a house in multiple occupation (“HMO”). West Northamptonshire Council declared that hotel was now an HMO following their inspection to the property. Consequently, Shires Investments Limited, the owners of the property, made an application to the tribunal to appeal this declaration.
The Law
Under Section 255 of the Housing Act 2004, a local housing authority may serve an HMO declaration in respect of a building or part of a building if they are satisfied that one of the tests for HMOs set out in section 254 applied. It stipulates that a building or a part of a building meets the standard test if-
- it consists of one or more units of living accommodation not consisting of a self-contained flat or flats;
- the living accommodation is occupied by persons who do not form a single household;
- the living accommodation is occupied by persons as their only or main residence or they are to be treated as so occupying it;
- their occupation of the living accommodation constitutes the only use of that accommodation;
- rents are payable or other consideration is to be provided in respect of at least one of those person’s occupation of the living accommodation; and
- two or more of the households who occupy the living accommodation share one or more basic amenities or the living accommodation is lacking in one or more basic amenities.
Regulation 5 of the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions)(England) Regulations 2006 states that a person is to be treated as occupying a building as his only or main residence for the purposes of section 254 if he is an asylum seeker or the dependent of an asylum seeker who has been provided with accommodation under section 95 of the Immigration and Asylum Act 1999 and which is funded partly or wholly by the National Asylum Support Service, a department within the Home Office.
The applicant contended that neither (c), (e) or (f) of the tests were made out and therefore the declaration should be revoked. The applicant argued that the asylum seekers were in fact occupying the accommodation under section 98 of the 1999 Act rather than section 95. MK Hotel is being used to house asylum seekers for initial contingency accommodation. This was temporary support under section 98, which is to be provided only until the Secretary of State is able to determine whether support may be provided under section 95.
Held: The tribunal held that the Council had failed to establish that the asylum seekers were occupying the hotel as their only or main residence. Particularly, “residence” requires more than mere occupation. The tribunal found that “provision of emergency short-term accommodation to the Guests” by the hostel did not provide the degree of permanence required for the occupants to pass the test in section 254(2)(c). Consequently, since the Council failed on this point, there was no need to consider the tests under section 254(e) and (f).
5. Great Yarmouth Borough Council v Al-Abdin & Others [2022] EWHC 3476 (KB)
The claimant, Great Yarmouth Borough Council is the local planning authority for its borough who sought an injunction under Section 187B of the Town and Country Planning Act 1990 restraining the defendants from using or facilitating the use of the Villa Rose Hotel or any other hotel as a hostel whether for the accommodation of asylum seekers or not. This claim was premised on the basis that this hotel and other hotels fell within the area protected by Policy GY6 of the Great Yarmouth Local Plan Part 2. The hotel had not yet accommodated the asylum seekers. Therefore, a quia timet injunction was sought to deal with an apprehended breach of planning control (a potential material change of use – hotel to hostel without planning permission).
Policy GY6 titled “Great Yarmouth Seafront Area” covers properties facing onto the sea and sections of side streets lying immediately behind that frontage. The Seafront Area includes the Villa Rose (subject property). Paragraph 27 of the Policy provides that for the sea front area, the Council principally aims to:
- encourage year-round, sustainable tourism;
- encourage investment in major new tourism, leisure and entertainment facilities;
- resist the loss of key tourism uses to non-tourism uses;
- conserve the seafront’s heritage assets and bring them back into viable, active use where possible; …”
The policy justification for Policy GY6 is that: “Great Yarmouth’s Seafront Area provides the main focus for holidaymakers with the greatest concentration of tourist attractions and range of other related tourism and entertainment uses. It is therefore strategically important to the Borough’s economy. ”
Issue: Whether there is a breach of planning control from a hotel to hostel?
The court considered the planning factors such as the character of the use of the land. Policy GY6 was held to be relevant in this regard. This is because the aim of the policy is to protect substantial part of the local economy of the Borough that is dependent on tourism which includes hotels. Secondly, the court assessed the factors of the proposed use that pointed towards a hotel use. Proposed use would involve no alteration of the premises and in many ways the operation of the premises would be like that carried out ordinarily by hotel operators. There would be no dormitories and it was not suggested the accommodation is basic or inexpensive. Thirdly, the factors that pointed towards a hostel use was looked at. 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. Additionally, there would be a degree of management of movement of the residents. Also, the duration of their transient occupation will be determined by their move to the next stage of the asylum process as well as the fact that the accommodation would be paid for by the Home Office.
Fourthly, the off-site factors were assessed. The hotel would be closed to the public, both the access to accommodation and the restaurant, and that there would be little to no expenditure by asylum seeker. This was considered as relevant as this means the asylum seekers would not contribute to the local economy.
Held: The injunction was granted because on the balance of the factors, the proposed used went against the policy of the Borough.
Other cases noted in the media:
Headline: Anger over bid to turn hotel into refuge for asylum seekers – Leicester
The Home Office were considering using the Quorn Country Hotel in Loughborough for accommodating asylum seekers there. The MP of Loughborough, Jane Hunt raised concerns that two other hotels in her constituency were already being used for this purpose. She argued that Quorn Hotel was not large enough to house asylum seekers. She further added that both the Charnwood Borough Council and Leicestershire Police had raised concerns about the hotel being used to house asylum seekers due to the strain it might place on their resources.
Following Ms Hunt publicly setting out on 11th January 2023 the reasons why she was against the proposal to use Quorn Hotel and actions she took, Home Office released that they have decided to pause their consideration of the use of this hotel.
Publication Date: 17 January 2023 Link: Plan to use Quorn hotel as asylum seeker refuge paused by Home Office, says MP – Leicestershire Live
Headline: Home Office Creaton asylum seekers hotel plan has been dropped – MP
The Home office plan to utilise Highgate House Hotel to house up to 400 asylum seekers has been dropped in Creaton, Northamptonshire. The Daventry MP, Chris Heaton-Harris had previously stated that the hotel should not be used because of:
- its rural location,
- the impact on medical services, educational services and social care services
- the lack of transport links and
- the lack of local facilities.
Publication Date: 16 January 2023 Link: Home Office Creaton asylum seekers hotel plan has been dropped – MP – BBC News
Headline: Home Secretary under fire over plan to house more than 100 asylum seekers in Hale hotel
Trafford council has written to the Home Secretary protesting the use of a hotel in Hale village to house 121 asylum seekers who were expected to arrive by January 20. The Council was concerned about the provision of healthcare and safeguards for the asylum seekers. The Council has a legal duty to provide healthcare and safeguarding and is working with NHS colleagues and local charities around practical issues, like supplying clothing and toiletries. The Council is partnering with the NHS and local charities to assist with the provision of clothing and toiletries as the asylum seekers are only entitled to a small subsistence payment.
The Council has also instructed the planning team to investigate whether housing the asylum seekers will constitute a change of use.
Publication Date: 17 January 2023 Link: Home Secretary under fire over plan to house more than 100 asylum seekers in Hale hotel – Manchester Evening News
Headline: Colchester asylum seekers’ safety priority for Home Office
In December 2022, the hospitality venue took in more than 100 men – some of whom were suffering with mental health issues – after they fled to the UK from their homelands.
The Home Office have now stressed that the safety of asylum seekers is of the utmost importance after some far-right activists have now staged a protest outside the Holiday Inn Express on Birchwood Road, Colchester. In addition, they seek to continually review the security at asylum accommodation sites with its providers.
Publication Date: 18 January 2023 Link: Colchester asylum seekers’ safety priority for Home Office | Gazette (gazette-news.co.uk)
Headline: East Suffolk: Council approached to house asylum seekers
East Suffolk Council has received initial enquiries from the Home Office regarding the offer of possible support in housing families in the district. They are in the early stages of communication and are awaiting more detailed discussions regarding the suitability, safety and availability of potential locations.
Publication Date: 17 January 2023 Link: East Suffolk: Council approached to house asylum seekers | East Anglian Daily Times (eadt.co.uk)
Headline: What is Rishi Sunak’s five-point illegal immigration plan – and why does it target albanians?
The prime minister, Rishi Sunak unveiled a new five-point plan to tackle illegal immigration last year.
In it, he stated under Point 3 that the Government will stop using hotels to house asylum seekers as much as possible.
Furthermore, disused holiday parks, surplus military sites and empty university halls will be used instead. He added that space for 10,000 people already identified.
Publication Date: 13 December 2022 Link: What is Rishi Sunak’s five-point illegal immigration plan – and why does it target Albanians? | UK News | Sky News
Headline: Families of asylum seekers move into Hale hotel after MP deems housing 112 men ‘inappropriate’
The Ashley Hotel is currently being used to house asylum seekers. The category of persons is mainly families. The MP for Cheshire had previously spoken against the proposal to lodge 112 male asylum seekers as he considered it as an ‘obviously inappropriate’. He stated: ‘Putting over 100 young unemployed men in the centre of a busy residential village such as Hale would clearly be inappropriate, and the proposals have caused considerable disquiet.’
Publication date: 05 February 2023 Link: Families of asylum seekers move into Hale hotel after MP deems housing 112 men ‘inappropriate’
Headline: Lincolnshire landlords being asked to house asylum-seekers
Private landlords in Lincolnshire are being asked to house asylum-seekers in a bid to free up hotels. Home Office contractor Serco has offered homeowners and estate agents incentives to lease their properties, according to a county council report.
It is stated that Serco has been looking to rent houses from “a wide network of landlords, investors, and agents” to free up alternative accommodation. The private landlords were said to being offered “an attractive and competitive proposition” including five-year leases with no void periods, repairs and maintenance, monthly property inspections, and all bills being paid by Serco.
Publication date: 25 January 2023 Link: Lincolnshire landlords being asked to house asylum-seekers – BBC News
Headline: Council threatens legal action over Skegness asylum hotels
A local authority has threatened to take legal action in a bid to stop the government from using more hotels in Skegness as hostels for asylum seekers.
East Lindsey District Council has sent a pre-action letter warning it will seek a judicial review if the Home Office try to use other hotels, saying it had caused “substantial harm”. The council claimed that the use of the five hotels had depleted the resort’s stock of accommodation and caused “harm” to its reputation as a family resort.
“This pre-action letter indicates the Council’s intentions to seek a Judicial Review if the Home Office will not agree to stop purchasing more hotels for hostel use unless it is authorised by the grant of planning permission. This borders on a breach of planning control.
Publication: 05 January 2023 Link: Council threatens legal action over Skegness asylum hotels – BBC News
We have been instructed by a number of contractors and hotels on issues covered in this Briefing. Should you wish to discuss please contact our team.
