Somani Hotels: Court of Appeal clarifies “desirable” joinder of the Home Secretary and a status‑quo preference for s.187B planning injunctions affecting asylum accommodation

Introduction

In Somani Hotels Ltd v Epping Forest District Council & Secretary of State for the Home Department ([2025] EWCA Civ 1134), the Court of Appeal (Bean LJ, Nicola Davies LJ, Cobb LJ) addressed two linked appeals arising from orders made by Eyre J. The case sits at the intersection of planning control and the national asylum accommodation regime. The local planning authority (Epping Forest District Council) sought an interim injunction under section 187B of the Town and Country Planning Act 1990 (TCPA 1990) to restrain Somani Hotels Ltd from using the Bell Hotel to accommodate asylum seekers on the footing that such use was a material change from hotel (Class C1) use requiring planning permission. The High Court refused to join the Secretary of State for the Home Department (SSHD) as a party and granted interim relief restraining the use pending a fast-track trial.

On appeal, the Court of Appeal held that the judge erred in refusing the SSHD’s joinder application and in granting the interim injunction. The case sets important guidance on:

How widely CPR 19.2(2) should be interpreted in determining whether it is “desirable” to add a party whose statutory duties and operational responsibilities will be directly affected by the relief sought.
How the American Cyanamid balance of convenience applies to interim planning injunctions under s.187B where the use is already ongoing and entwined with the SSHD’s statutory duty to accommodate (potentially destitute) asylum seekers.
The limited and cautious role of protests—lawful and unlawful—in the planning balance, with a warning against incentivising protest-driven litigation.
The significance of preserving the status quo and of delay by a planning authority in seeking urgent injunctive relief.

Summary of the Judgment

The Court of Appeal made four principal determinations:

Joinder of the SSHD: The judge erred in refusing to join the SSHD under CPR 19.2(2). The “desirable” test must be given a wide interpretation. Given the SSHD’s statutory duty under the Immigration and Asylum Act 1999 to accommodate asylum seekers, and the practical and public interest implications of the injunction on the national asylum estate, joinder was desirable so the court could resolve all “issues” in dispute. The SSHD is added as a party for the High Court proceedings.
Errors in the balance of convenience: The judge’s balancing exercise under American Cyanamid was vitiated by multiple errors of principle, including: treating Somani’s “deliberate” stance (but non-flagrant, open and in good faith) as a weighty factor for granting relief; giving weight to protests (including unlawful activity) in a way that risks incentivising further disorder; insufficiently valuing preservation of the status quo; and undervaluing the Council’s delay and procedural unfairness.
Interim injunction set aside: Permission to appeal was granted to both Somani and the SSHD; the appeals succeeded and the interim injunction was discharged. The trial directions remain subject to modification to reflect the SSHD’s joinder.
Pre‑action conduct and evidence: The Court criticised the Council’s failure to notify the SSHD pre‑issue and emphasised the SSHD’s unique evidential contribution to the public interest analysis (capacity, relocation feasibility, operational impacts on the asylum estate).

Analysis

Precedents Cited and Their Influence

American Cyanamid v Ethicon [1975] AC 396. The foundational interim relief test frames the approach: once a serious issue is shown, the focus is on the balance of convenience, preserving the status quo, and minimising the risk of injustice. The Court of Appeal faulted the judge for insufficiently prioritising the status quo, particularly where the alleged breach had been long-running and a trial was imminent.

South Bucks DC v Porter [2003] 2 AC 558. The House of Lords stressed that s.187B injunctions are exceptional tools within a wider enforcement regime; the “degree and flagrancy” of a breach can justify stronger relief, especially when conventional enforcement fails. The Court of Appeal applied this to emphasise the difference between flagrant defiance (not present) and a deliberate but good faith legal position (present and not weighty in favour of interim restraint).

Ipswich BC v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 (KB) and related cases. Holgate J’s series of asylum-hotel injunction cases underscored that:

Hotel vs hostel is a “fine” but fact-sensitive distinction; even if a hostel use is arguable, materiality turns on planning consequences and harm.
The public interest in planning enforcement does not inherently justify injunctive relief where normal enforcement mechanisms suffice.
Precautionary injunctions are particularly difficult; commensurability with harm is key.

The Court of Appeal adopted the ethos that injunctions are not the default where use is already in place and enforcement has not been tried, and added national public interest dimensions specific to asylum accommodation.

Great Yarmouth (as discussed in the judgment). There, injunctive relief made more sense after conventional enforcement had run its course and breaches persisted, highlighting how flagrancy interacts with the integrity of the planning system. The Court contrasted that scenario with Somani, where no enforcement action had even begun.

CPR Part 19 – Pablo Star, Blenheim, Betta Oceanway.

Pablo Star and Blenheim endorse a broad, purposive reading of CPR 19.2(2): “in dispute” means “in issue”, and joinder is aimed at ensuring that those whose rights (or, here, duties) may be affected have a right to be heard.
Betta Oceanway reinforces the “control mechanism” of “desirable” joinder to prevent “gatecrashing”, but equally to ensure parties with a legitimate interest are heard; if the desirability threshold is met, refusal on discretion will be rare.

The Court of Appeal applied these principles to hold that the SSHD’s unique statutory role and evidence plainly made joinder desirable.

Hadmor Productions v Hamilton [1983] 1 AC 191. Appellate courts review, rather than re‑exercise, discretion unless there are errors of principle. The Court found such errors (misdirection on “deliberate” conduct, protest incentives, status quo, delay), warranting intervention.

Legal Reasoning in Detail

1) Joinder of the SSHD under CPR 19.2(2)

The Court identified multiple errors in the refusal to join the SSHD:

Misapplication of the “gateway” test: The judge set the bar too high by implying “necessity” rather than asking whether joinder was “desirable”. That misframed the gateway.
Wide reading of “in dispute” / “in issue”: The injunction would directly affect the SSHD’s ability to perform a statutory duty (accommodating destitute asylum seekers), and raised system-wide operational issues (relocation feasibility, estate capacity, public safety, compliance with international obligations). These are “issues” the court should resolve with the SSHD at the table.
Unique and authoritative evidence: The SSHD alone could supply reliable evidence about national capacity, relocation logistics within tight timeframes, and the cascading impacts of site closures. Expecting Somani to channel this evidence is inadequate and undermines the right to be heard.
Public interest calibration: The balancing exercise involved competing public interests—the integrity of planning control and provision of asylum support under statute. The SSHD is constitutionally positioned to assist the court in appropriately weighting these factors.
Pre‑action conduct: The Council should have notified the SSHD before issue; once aware, the SSHD should have moved quickly. However, those timing missteps did not justify excluding the SSHD where joinder was desirable and the public interest weighty.

Result: Permission to appeal was granted on joinder. The appeal succeeded. The SSHD is joined for the High Court proceedings going forward.

2) The balance of convenience under American Cyanamid in a s.187B planning context

The Court identified several misdirections in the High Court’s balancing exercise:

“Deliberate” but non‑flagrant conduct is not a significant factor for interim restraint: Somani acted openly and in good faith on legal advice and did not defy extant enforcement. There was no history of evasion or repeated non‑compliance. The court emphasised that injunctions are more apt where conventional enforcement has failed over time or where flagrancy is present; neither applied here.
Protests should not tip the balance in favour of restraint: While lawful protest disruption attracts “considerable caution”, weighting protest (including unlawful conduct) as a factor for injunctive planning relief risks incentivising more protest and even disorder. Alternative mitigation (police measures under the Public Order Act 1986 and targeted injunctions against unlawful protest) should be considered.
Preserve the status quo: Where a use has been ongoing for some time and a trial is imminent, the status quo is a central American Cyanamid consideration. Displacing 138 residents at short notice, in a pressure‑strained national estate, created significant risk of injustice compared to holding the ring.
Consider the national, structured response: The asylum accommodation estate operates as a national system under a statutory duty. Closing one site spools consequences across that system. The judge did not sufficiently factor this public interest dimension into the balance.
Delay and procedural fairness matter: The Council knew by mid‑May that Somani would not apply for permission; yet it said nothing until serving a heavy application in mid‑August on minimal notice. That delay and the way the application was prosecuted weighed against urgent interim relief.
Stop notice point not determinative: The Court did not need to decide whether s.183(5) barred a stop notice here; in any event, it would be counter‑intuitive to argue that the availability of a more draconian stop notice should reduce the threshold for an interim injunction.
Fear of crime is relevant but limited: As the judge held, fear of crime had limited weight; the Court agreed but held it was clearly outweighed by status‑quo considerations, protest‑incentive concerns, and the public interest in the structured national response.

Result: Permission to appeal on the merits was granted to both Somani and the SSHD. The interim injunction was set aside. Trial directions remain, subject to adjustment for the SSHD’s participation.

Impact and Forward‑Looking Consequences

For local planning authorities (LPAs)

Pre‑action notice to duty‑holders: Where s.187B relief would affect the SSHD’s asylum accommodation duties, LPAs should notify the SSHD under the Pre‑Action Protocol. The absence of notice weighed heavily in the appellate court’s critique.
Expect joinder of the SSHD to be “desirable” in many asylum‑hotel cases: The Court has signalled that the SSHD’s statutory role and unique evidence will commonly satisfy CPR 19.2(2). Proceed on the assumption that either joinder or meaningful participation will be appropriate.
Use the planning toolkit proportionately and ordinarily in sequence: s.187B is exceptional. The court will look for attempts at conventional enforcement (e.g., enforcement notices) unless there is compelling harm, flagrancy, or failure of ordinary means.
Do not rely on protests to justify injunctive relief: Weighting protest disruption (especially unlawful elements) risks incentivising disorder. Consider targeted public order measures and protest‑related injunctions distinct from planning control.
Be prepared to evidence local planning harm, not merely controversy: Planning harm must be clear and material. The mere fact that a lawful use is controversial or draws protest is not a planning reason to restrain it.
Delay and procedural fairness will be scrutinised: In urgent s.187B applications, unexplained delay and tactical ambush will weigh against relief.

For the Home Office/SSHD

Active case management: Where asylum accommodation is at risk of restraint, prompt steps to seek joinder or intervene are now strongly supported by authority. Provide operational evidence on national capacity, relocation lead‑times, and impacts on the wider estate.
System‑wide public interest matters: Courts will consider the structured national response and avoid ad hoc closures which create displacement pressures elsewhere. Make this evidence concrete at the interim stage.

For hotel operators and service providers

Interim protection is more attainable where conduct is open and bona fide: If the operator acts transparently, without flagrancy, and enforcement has not been attempted, the court will be slow to upset an established status quo pending trial.
Joinder aids clarity: Ensure the SSHD (and, where relevant, the service provider) is engaged so that the court has a complete picture. While there is no duty to apply for planning permission or a certificate of lawfulness, proactive engagement helps minimise litigation risk.

For courts and practitioners

American Cyanamid recalibrated for asylum‑hotel cases: Preserve the status quo where the use is established; regard “deliberate” reliance on a bona fide legal position as neutral absent flagrancy; treat protests with caution; weigh national statutory duties and systemic impacts.
CPR 19.2(2) “desirability” is broad: Where statutory duties and public interest are tightly intertwined with the relief sought, joinder will often be desirable and refusal on discretion will be rare.

Complex Concepts Simplified

s.187B TCPA 1990 injunction: A powerful remedy allowing a planning authority to ask the court to restrain an actual or apprehended breach of planning control, without first serving an enforcement notice. Exceptional and discretionary.
Enforcement notice vs stop notice: An enforcement notice (s.172) requires compliance within a set period and is appealable, suspending effect. A stop notice (s.183) can require immediate cessation but is subject to statutory limits (e.g., not if the activity has occurred for more than four years) and is more draconian.
American Cyanamid balance of convenience: At the interim stage, courts avoid deciding merits definitively. They assess which course best minimises the risk of injustice pending trial, commonly by preserving the status quo.
“Material change of use” and hotel vs hostel: A change of use requires permission if “material” in planning terms. Whether hotel accommodation for asylum seekers remains Class C1 or becomes a hostel (sui generis) is fact‑sensitive and a “fine” distinction; materiality depends on planning consequences and harm.
CPR 19.2(2) joinder – “desirable” and “in dispute”: The test is purposive and wide. “In dispute” means “in issue”. Joinder is desirable where it helps the court resolve all relevant issues, especially if a prospective party’s rights or duties are affected and they can supply unique evidence.
“Flagrancy” vs “deliberate”: Flagrancy suggests wilful, defiant breaches, often after enforcement has failed; that can justify swift restraint. A deliberate but good‑faith position on a contested legal issue, taken openly and before any enforcement, is not equivalent to flagrancy.

Conclusion

Somani Hotels provides two significant clarifications with practical ramifications. First, on joinder: where an interim planning injunction would meaningfully affect the SSHD’s statutory accommodation duty, a broad and purposive reading of CPR 19.2(2) will often make joinder “desirable”, reflecting the right to be heard of those whose legal duties and operational responsibilities are directly at stake. Second, on interim relief under s.187B: American Cyanamid’s balance must be applied with a status‑quo preference where the use is established; “deliberate” but bona fide conduct is not tantamount to flagrancy; protests—especially unlawful conduct—should not tip the balance lest courts inadvertently incentivise disorder; LPAs’ delay and tactical urgency weigh against interim relief; and national, systemic public interest in the orderly operation of the asylum estate carries real weight.

The Court of Appeal set aside the injunction and directed that the SSHD be joined, ensuring that the forthcoming trial proceeds with the necessary parties and the full evidential picture. More broadly, the judgment charts a principled route for courts, LPAs, and the Home Office in navigating the sensitive overlap between planning control and the statutory duty to provide asylum accommodation.