Ipswich Borough Council v Fairview Hotels (Ipswich) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] EWHC 2868 (KB) |
| Docket Number | Case No: KB-2022-003788 |
| Court | King's Bench Division |
[2022] EWHC 2868 (KB)
THE HON. Mr Justice Holgate
Case No: KB-2022-003788
Case No: KB-2022-003787
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Gethin Thomas (instructed by Ipswich Borough Council) for the Claimant
Richard Kimblin KC (instructed by Howard Kennedy LLP) for the First Defendant
Paul Brown KC (instructed by Clyde & Co LLP) for the Second Defendant
Gethin Thomas (instructed by East Riding of Yorkshire Council) for the Claimant
Robin Green (instructed by Ashton Bond Gigg Solicitors) for the First to Third Defendants
William Upton KC (instructed by Mears Group (In-House Legal)) for the Fourth Defendant
The Fifth Defendant did not appear and was not represented
Hearing date: 8 November 2022
Approved Judgment
This judgment was handed down remotely at 5.30pm on 11 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The claimants in two separate claims apply to renew ex parte injunctions, obtained without notice, until trial. The claims arise out of proposals by the Home Office to use two hotels to accommodate asylum seekers.
The Secretary of State for the Home Department (“SSHD”) did not take part in these proceedings. Section 95 of the Immigration and Asylum Act 1999, read together with regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005 No.7), imposes a duty on the SSHD to provide “support” for asylum seekers (and their dependants) who appear to the Secretary of State to be, or to be likely to become, “destitute” within 14 days (in the case of new applicants). By s.95(3) a person is destitute if inter alia he does not have adequate accommodation. “Support” includes accommodation. By section 94(1) (as currently in force) an asylum seeker for these purposes is someone who has made a claim that it would be contrary to the Refugee Convention or Article 3 of the ECHR to remove him from the UK. Under s.98 the SSHD is under a duty to provide temporary support in the form of accommodation to an asylum seeker who appears to be destitute until a decision under s.95 is taken.
The first claim concerns the Novotel Ipswich Centre Hotel, Grey Friars Road, Ipswich (“the Novotel”). Ipswich Borough Council (“IBC”), the claimant in KB-2022-003788, is the local planning authority (“ LPA”) for its administrative area under the Town and Country Planning Act 1990 (“TCPA 1990”). Fairview Hotels (Ipswich) Limited (“Fairview”), the first defendant, is the owner of the Novotel.
Serco Limited (“Serco”), the second defendant, is one of three service providers contracted by the Home Office to provide accommodation for asylum seekers whilst the initial processing of their claims takes place. This process has normally taken around 21 days, after which the asylum seeker is moved to “dispersed accommodation”, where they remain until they receive a decision from the Home Office on their status. Mr. Paul Brown KC, who appeared on behalf of Serco, told the court that recent increases in new asylum claims have caused that 21 day period to increase, but he had no instructions on the current average period. Serco is responsible for some 35,645 asylum seekers of whom about 11,200 are being provided with initial accommodation (“IA”) in 84 hotels in different parts of the country. Under the terms of its contract with the Home Office, Serco is required to provide accommodation for an asylum seeker on the same day as it receives instructions to do so from the Home Office. In the last two weeks Serco was required to provide initial accommodation for 850 and 950 people respectively.
It is common ground that the lawful planning use of the Novotel is a hotel, within Class C1 of the Town and Country Planning (Use Classes) Order 1987 (SI 1987 No. 764) (“the UCO”). IBC considers that the proposed accommodation of asylum seekers would involve the use of the building as a hostel and a breach of planning control, namely the carrying out of development by making a “material change of use” without planning permission. The defendants dispute that contention.
IBC has sought to take enforcement action by relying upon the power in s. 187B of the TCPA 1990 to apply for an injunction to restrain the apprehended breach of planning control.
The second claim concerns the Humber View Hotel, Ferriby High Road, North Ferriby, East Riding of Yorkshire. The East Riding of Yorkshire Council (“ERYC”), the claimant in KB-2022-003787, is the LPA for its administrative area. The first three defendants (“D1 to D3”) are LGH Hotels Management Limited (“LGH”), S. Hull Propco Limited and S. Hull Opco Limited, respectively the management company for the LGH group, the freeholder and the leaseholder/operator of the hotel. The fifth defendant, Mack Residential Limited (“Mack”), is a sub-contractor engaged to block-book the hotel for an initial period of three months, with an option to extend, and to provide services. Mack has contacted the court to say that it supports the other defendants' cases, but does not wish to appear or be represented.
The LGH Group owns 52 hotels in the UK. Since June 2020 LGH says that it has been an active supporter of the Home Office's Refugee and Asylum Seeker programme. LGH currently provides 13 hotels under a “sole use” agreement for that purpose.
The fourth defendant, Mears Group PLC, (“Mears”), like Serco, has a contract with the Home Office to provide accommodation and support for asylum seekers pending the determination of their applications. Mears currently provides accommodation for about 5000 asylum seekers in about 80 hotels. Mears is attempting to accommodate a minimum of 500 asylum seekers this week and each week thereafter.
It is common ground that the lawful planning use of the Humber View Hotel is a hotel. ERYC considers that the proposed accommodation of asylum seekers would involve the use of the building as a hostel and a breach of planning control, namely the carrying out of development by way of a material change of use without planning permission. The defendants dispute that contention.
ERYC has sought to take enforcement action by relying upon the power in s. 187B to apply for an injunction to restrain the apprehended beach of planning control.
On 27 October 2022 Jacobs J granted IBC the following injunction:-
“The Defendants be restrained until the return date being a half day hearing on Monday 7 November 2022) whether by themselves or by instructing or encouraging or permitting any other person from either further using or facilitating the further use of the Novotel Ipswich Centre Hotel, Grey Friars Rd, Ipswich IP1 1UP, or any other hotel within the borough of Ipswich, as a hostel whether by accommodating or facilitating the accommodation of asylum seekers or otherwise, save for the accommodation of the 72 people currently occupying the Novotel Ipswich Centre Hotel.”
On 28 October 2022 Jacobs J granted ERYC the following injunction:-
“The Defendants be restrained until the return date, being a half day hearing on Monday 7th November, 2022, whether by themselves or by instructing or encouraging or permitting any other person from either using or facilitating the use of the Humber View Hotel, Ferriby High Road, North Ferriby, East Riding of Yorkshire, HU14 3LG, or any other hotel within the council district East Riding of Yorkshire, as a hostel whether by accommodating or facilitating the accommodation of asylum seekers or otherwise.”
He directed that the application to continue that injunction should be heard by the same judge as would hear the application to continue the injunction granted to IBC.
On 4 November I ordered that the hearing should be adjourned to 8 November and that the two applications would be heard together, for the more efficient use of the court's resources. But, of course, the claims remain separate and have received individual consideration. I also gave directions for any further evidence and for skeleton arguments.
I am very grateful to all counsel for their written and oral submissions.
Both injunctions prohibit the defendants in each claim from using not only the named hotel but also any other hotel in the respective claimant's district as a hostel, including a hostel to accommodate asylum seekers. Mr. Gethin Thomas, who appeared on behalf of both ICB and ERYC, rightly accepted that there was no evidence of any apprehended breach of planning control by any of the defendants in relation to any other hotel in the relevant district and that there was no justification for that part of each injunction to be continued in any event.
IBC's decision to bring its claim was taken by Clare Dawson-Dulieu, Operations Manager for Legal and Democratic Services. ERYC's decision to bring its claim was taken by Lisa Nicholson, Director of Legal Services, and by Alan Menzies, Director of Planning and Economic Regeneration. The officers acted under delegated powers.
IBC relied upon witness statements from Ms. Shirley Jarlett, Assistant Director for Governance and the Council's Monitoring Officer, and from Tim Peters, a Senior Planning and Enforcement Officer. Fairview relied upon a witness statement from Satish Chatwani, a Director, and Serco relied upon witness statements from Tasneem Said, an in-house lawyer, and from Thomas Roberts, a Legal Director of Clyde & Co LLP.
ERYC relied upon two witness statements from Hazel Walsh, Planning Enforcement Team Leader. D1 to D3 relied upon a...
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