s.187B TCPA Injunctions: Courts May Assume (Not Decide) Breach, Treat Protest/Public Order as Non-planning Harm, and Award Separate Costs to a Joined SSHD Where a Distinct Statutory Interest Requires Separate Representation
1. Introduction
The appellant local planning authority, Epping Forest District Council (“EFDC”), sought to restrain by injunction under s.187B Town and Country Planning Act 1990 the respondent landowner, Somani Hotels Limited (“Somani”), from using the Bell Hotel in Epping as “contingency accommodation” for asylum seekers under arrangements with the Home Office’s service providers.
The Bell Hotel is in the Metropolitan Green Belt and within a Conservation Area, near residences and schools. The Secretary of State for the Home Department (“SSHD”) intervened (later joined as a party) because the injunction would directly affect her statutory duties to accommodate destitute asylum seekers under ss.95–98 Immigration and Asylum Act 1999 and related regulations. Clearsprings Ready Homes Limited (“CRHL”) intervened as a service provider.
EFDC’s core contention was that accommodating asylum seekers amounted to a material change of use from a lawful hotel use, hence a breach of planning control requiring permission. Somani/SSHD/CRHL contended there was no such change and, in any event, that s.187B injunction relief was not justified (particularly given the availability of the “conventional” enforcement notice route with appeal under s.174 TCPA 1990).
This Court of Appeal decision concerns EFDC’s attempt to obtain permission to appeal from Mould J’s dismissal of the s.187B claim and the associated costs orders.
2. Summary of the Judgment
- The Court of Appeal refused permission to appeal against Mould J’s orders.
- It held EFDC’s grounds were unarguable and had no real prospect of success; there was no “other compelling reason” to hear the appeal.
- On the injunction issue, the Court confirmed it was legitimate for the trial judge to assume (in EFDC’s favour) the existence of a breach and decide that, even so, an injunction was not “just and convenient” because the planning/environmental harm was limited and countervailing factors (including the ongoing asylum accommodation need) were significant.
- On a requested declaration that the use was not “hotel” use, the Court upheld refusal: such declarations risk usurping the statutory allocation of breach-determination functions to LPAs/Inspectors via enforcement/appeal mechanisms.
- On costs, it upheld (i) awarding the SSHD her costs because she had a distinct interest requiring separate representation and (ii) ordering a substantial payment on account of Somani’s costs.
3. Analysis
3.1 Precedents Cited
This was the spine of the s.187B analysis. It establishes that:
- s.187B provides a powerful, discretionary remedy; the court’s task is whether an injunction is appropriate to restrain the breach (often framed as “just and convenient”), not to re-run the LPA’s planning judgment;
- the court may consider the seriousness and effects of the breach, and whether the breach is flagrant;
- conventional enforcement routes matter: injunctions are typically a last resort rather than a first response.
In this case, both Mould J and the Court of Appeal used South Bucks to validate an approach where—especially in a “fine distinction” use-class dispute—injunctive relief turns on proportionality/commensurability to planning harm, and on the authority’s enforcement conduct (including delay and whether conventional enforcement was tried).
Cited for the discretionary test for declarations (Lord Woolf MR): the court should only grant a declaration where it would serve a useful purpose. EFDC’s proposed “useful purpose” (to bind any future enforcement appeal on breach) was rejected as an attempt to bypass the statutory enforcement/appeal architecture.
Critical to separating land use effects from people’s behaviour. Mould J applied it to hold that residents’ fear of crime was not shown to arise from the “use” (accommodating asylum seekers) as such, but from alleged conduct of particular individuals. The Court of Appeal endorsed this reasoning as “impeccable”, reinforcing a planning-law boundary: planning control addresses use impacts, not generalised anxieties untethered to the use itself.
Great Yarmouth Borough Council v Al-Abdin [2022] EWHC 3476 (KB)
Used by contrast: where enforcement is aligned with a strong, locationally specific policy, the case for robust relief may be stronger. Mould J found that was not EFDC’s position here, weakening any “last resort” argument for an injunction.
Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176
The key authority on costs where there is multiple representation. The starting point is that a losing party should not normally pay more than one set of costs, unless further costs are justified because a party has a distinct interest requiring separate representation or raises a separate issue.
The Court of Appeal held Mould J correctly applied Bolton to award SSHD her costs: the injunction would directly affect her statutory duties, she was best placed to provide evidence, and she made a material contribution.
Bechtel Ltd High Speed Two (HS2) Ltd v Balfour Beatty Group Limited [2021] EWHC 640 (TCC)
Cited (in argument) as modern articulation of the principle that an “intervener’s” costs are not automatic and depend on distinct contribution/need for separate representation. The Court’s treatment remained consistent with Bolton.
Betta Oceanway Company of SC Tomini Trading SRL v Georgios Vatistas [2025] EWCA Civ 595
Important for joinder under CPR 19.2(2), emphasising a wide interpretation. The earlier appellate decision joining the SSHD relied on Betta Oceanway; in this case, that joinder context supported the costs outcome because the SSHD’s participation was not merely supportive but necessary for a properly informed determination.
Westminster City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 482; [2015] JPL 1276
Cited as part of the “fine distinction” jurisprudence concerning hotel/hostel-type uses and material change of use, reinforcing that outcomes are fact-sensitive and not readily reducible to a single, general rule.
Ipswich Borough Council v Fairview Hotels (Ipswich) Limited [2022] EWHC 2868 (KB); [2023] JPL 630
Used both in the High Court and referenced on appeal for factors that may (arguably) point toward material change when hotels are used for accommodated populations under block booking with controlled access. The Court of Appeal in this case nevertheless stressed that it was not an apt vehicle to give general guidance on the hotel/hostel line, because EFDC’s appeal did not truly raise such a law-development issue.
3.2 Legal Reasoning
(a) The nature of s.187B relief: proportionality to planning harm
The Court affirmed that s.187B is not a shortcut to obtain a judicial ruling on breach; it is a remedy “for the purpose of restraining the breach”. Even where breach is assumed, the court must ask whether an injunction is a commensurate response to planning/environmental harm and to the enforcement context (e.g., whether conventional enforcement was tried, whether the breach was flagrant).
(b) “Assuming breach” can be legitimate in an injunction refusal
A central attempted appeal point was that Mould J failed to decide whether there was a breach. The Court rejected this: he expressly assumed in EFDC’s favour that there was a material change of use, and then refused an injunction on discretionary grounds. That approach was particularly apt where:
- the hotel/hostel distinction is acknowledged to be “fine” and fact-sensitive; and
- EFDC’s own decision-making record was procedurally weak (no contemporaneous record; no pre-action warning), making it inappropriate to use declarations as a substitute for the statutory enforcement/appeal scheme.
(c) Protests, disorder, and “community tensions” are not planning control objectives
The Court endorsed the High Court’s approach that public protest and disorder—though real-world consequences—do not themselves constitute planning harm that can justify s.187B relief. Treating protest as a material enforcement trigger risks perverse incentives (the earlier Court of Appeal decision had warned against “incentivising further protest”), and public order is addressed through police powers rather than planning injunctions.
(d) Statutory asylum accommodation need can be a relevant planning consideration
EFDC attacked the weight given to the SSHD’s accommodation duties as a “non-planning” matter. The Court held this was plainly wrong: the need to accommodate persons, and the practical consequences of injunction-driven displacement, can be relevant to the planning balance and to the court’s “just and convenient” assessment under s.187B.
(e) Declarations: avoiding “usurpation” of the enforcement/appeal regime
The Court accepted that EFDC’s declaration request sought to foreclose the statutory route (enforcement notice and s.174 appeal). It reaffirmed that Parliament allocated breach determination in this context to LPAs and Planning Inspectors, and a declaration is inappropriate where it would effectively replace that scheme—particularly when injunction relief is refused and the factual matrix may change by the time an enforcement appeal is heard.
(f) Costs: separate costs for a joined SSHD and payments on account
On the SSHD’s costs, the Court upheld Mould J’s evaluation under Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176: the SSHD had a distinct statutory interest and evidential role that Somani could not authoritatively perform, justifying separate representation and costs recovery.
On Somani’s payment on account, the Court treated the complaint as largely case-management/detail-assessment territory: EFDC had time to respond or seek more time; any overpayment could be corrected on detailed assessment; and the judge awarded a conservative amount compared with the schedule.
3.3 Impact
- s.187B as “last resort” reinforced: LPAs should expect close scrutiny (not of planning merits per se, but of proportionality and enforcement context) where they choose injunctions over enforcement notices in contested, fact-sensitive “material change of use” disputes.
- Protest/public order de-coupled from planning injunction rationale: the decision discourages reliance on protests/disorder as the “trigger” for planning injunctions, steering such issues toward public order mechanisms.
- Hotel used for asylum accommodation: the Court declined to develop general doctrine; it reiterates the fact-specific nature of the hotel/hostel line, indicating future disputes will continue to turn on evidence, operation, locality, and policy context.
- Joinder and costs risk for claimants: where an injunction would materially affect a public authority’s statutory duties, that authority may be joined and may recover separate costs if its participation is reasonably required—raising the financial stakes for LPAs choosing litigation pathways over inspector-led enforcement appeals.
4. Complex Concepts Simplified
- Material change of use: a change in how land/buildings are used that is significant enough in planning terms to count as “development” requiring permission.
- s.187B injunction (TCPA 1990): a court order to stop (or prevent) a breach of planning control. It is discretionary and typically more exceptional than an enforcement notice.
- Enforcement notice and s.174 appeal: the standard route: the LPA serves a notice; the recipient can appeal; a Planning Inspector determines breach and can consider whether permission should be granted.
- “Just and convenient” / commensurate remedy: even if there is a breach, the court asks whether an injunction is proportionate to the planning harm and appropriate given the circumstances.
- Flagrant breach: an obvious or deliberate defiance of planning control; flagrancy can make injunctions more likely.
- Wednesbury unreasonable: a very high threshold for overturning evaluative judgments; a decision must be outside the range of reasonable outcomes.
- CPR 19.2(2) joinder: court power to add a party where it is desirable to resolve matters in dispute or where an issue is connected and desirable to resolve it within the proceedings.
- Payment on account of costs (CPR 44.2(8)): an interim payment towards costs owed, pending detailed assessment; later correction (including refunds) can be ordered.
5. Conclusion
The Court of Appeal’s refusal of permission in Epping Forest District Council v Somani Hotels Ltd consolidates a practical rule for contested planning injunctions: where breach is debatable and planning harm is limited, courts may decline s.187B relief even while assuming breach, and they will resist attempts to convert injunction proceedings into a substitute forum for definitive breach declarations that belong in the enforcement notice/appeal system.
The decision also draws a clear institutional boundary: planning control is not a tool for managing protest or public order. Finally, it confirms that when a public authority like the SSHD is properly joined due to a distinct statutory interest materially affected by the relief sought, separate representation and separate costs may be recoverable under Bolton.