The case concerned the intended use of a hotel for temporary accommodation by an agent of a local authority for asylum seekers. The local planning authority considered such planning use of the hotel as a change of use to a hostel which would require express planning permission. Accordingly, the local planning authority served a TSN on the hotel to stop the alleged breach of planning control.
The hotel owners judicially reviewed the TSN seeking the quashing of the TSN and a declaration that the local planning authority acted unlawfully in issuing the TSN. The first remedy sought was dismissed by the Court noting simply that the TSN had expired by the time of the hearing. However, the Court noted in any event that the TSN should not be open to judicial review whilst there were alternative remedies. In this instance the hotel owners could have:
(a) sought compensation as expressly provided for in Section 171H of the Town and Country Planning Act 1990 (“the 1990 Act”);
(b) applied for planning permission for use as a hostel or mixed use as hostel and hotel under Section 62 of the 1990 Act; and/or
(c) applied for a certificate of lawfulness of existing use or development under Section 191 of the 1990 Act. This would reflect the claimant's case that housing asylum-seekers in the Quality Hotel was lawful.
The Court also noted that the issue of the TSN was not unreasonable (in the Wednesbury sense) and therefore refused the declaration sought as to the unlawfulness of its issue. In coming to this conclusion the Court made some interesting comments regarding the alleged change of use from hotel to hostel.
Under the Town and Country Planning (Use Classes) Order 2015, hotels are within use-class C1. Article 3(1) of the Order provides that permission is not required where there is a change of use within any use class specified save that, under Article 3(6), such permitted change of use excludes “use … (i) as a hostel”. The Court found that there were reasonable grounds for the local planning authority to conclude that the hotel was being used, in whole or in significant part, as a hostel for the following reasons:
(a) There was going to be a significant and substantial usage by asylum seekers, who are conventionally housed in hostels;
(b) They would be sleeping two to a room, despite the fact that they were strangers, something that would not be countenanced in a hotel;
(c) They would reside there permanently, unlike people staying in a hotel;
(d) The hotel would be their home, because they would have no other home to go to. That is entirely different to guests at hotels;
(e) The charges were modest (£35 per day for bed, breakfast, lunch and an evening meal) which again was consistent with a hostel, not a hotel;
(f) Payments were made by the agents of a public body, an express indication of a hostel;
(g) Those accommodated at the hotel were transient, in that they were placed there until other accommodation became available or their asylum application was resolved against them. Again that is not consistent with the use of the building as a hotel.
(h) They had no connection or link with the area at all.
