Court of Appeal refuses Epping Forest permission to appeal in asylum accommodation injunction bid

In Epping Forest District Council v Somani Hotels Ltd, Secretary of State for the Home Department, and Clearsprings Ready Homes Ltd [2026] EWCA Civ 264, Lady Justice Andrews and Lord Justice Holgate also refused the council’s appeal of costs orders the High Court granted against Epping.

In November last year, Mr Justice Mould dismissed the council’s application for a final injunction in Epping Forest District Council v Somani Hotels Ltd [2025] EWHC 2937 (KB).

This was despite the High Court judge finding that Epping Forest had a reasonable basis for its view that the current use of the hotel requires planning permission and is therefore in breach of planning control.

Mr Justice Mould ultimately concluded that the claim was not a case "in which it is just and convenient for this court to grant an injunction".

Epping Forest went on to launch its appeal on the following four grounds:

1. The judge failed to determine the first and central question in any application for an injunction under s.187B of the TCPA 1990, namely whether there had been a breach of planning control;
2. In exercising his discretion to refuse to grant an injunction under s.187B, the judge misunderstood the evidence, misstated facts and misapplied principles, such that the Court of Appeal cannot be confident that the outcome would have been the same if he had not done so.
3. In ordering Epping Forest to pay the Home Secretary’s costs of the claim, the judge wrongly treated the Home Secretary as having been added under CPR 19.2(2)(b) when in fact she had only sought to be added under CPR 19.2(2)(a). On this mistaken basis, the judge treated the principles for the costs of an intervener as being indistinguishable from those applicable to a successful defendant. The Court of Appeal cannot be confident that the judge would have made the same costs order in favour of the First Intervener had he not made these mistakes;
4. In ordering Epping Forest to pay Somani Hotels, owner of the Bell Hotel, £95,000 on account of costs, the judge was procedurally wrong and wrong in law.

The Court of Appeal ultimately dismissed all four grounds as "unarguable".

On the first ground, the court said that the judge did not "duck the issue" of whether the use of the Bell Hotel was a breach of planning control.

It found that the judge was entitled to assume a breach in the council's favour without determining it, adding that Mould J correctly applied the legislation and principles in the case law.

The Court of Appeal said a declaration from the courts in this case would not benefit local planning authorities in other parts of the country, contrary to Epping Forest's view.

"It is well-established that the distinction between a hotel and a hostel use is fine and depends upon the circumstances of each case, including the character of the building and surrounding area, the operation and its effects and relevant local policy considerations. The determination of such issues will depend upon the evidence and arguments in each case, although it may be more straightforward in some cases than others. Even in relation to the Bell Hotel, [counsel for Epping Forest] accepted that the determination of the material change of use issue would depend on the circumstances at the date when an enforcement appeal is being considered and on the evidence put before the Inspector."

Lady Justice Andrews and Lord Justice Holgate added: "There is no arguable basis for criticising the judge's reasons for refusing to exercise his discretion to grant a declaration, whether as a matter of general approach or in the circumstances of this case. Parliament has allocated the function of determining whether a breach of planning control has taken place to a LPA, for example when deciding to issue an enforcement notice, and to a Planning Inspector on an appeal against that notice (see South Bucks). It is inappropriate to invite the court to issue a declaration which would effectively usurp those functions, a fortiori where there are serious concerns about the process followed by the LPA in deciding to apply for an injunction and the authority fails to make out a case for the grant of an injunction."

Turning to ground two (the judge's exercise of discretion on the injunction), the Court of Appeal concluded that Mould J correctly evaluated the council's decision‑making, the lack of any flagrant breach, the limited planning and environmental harm, and the public interest in the use of the hotel to meet the continuing need for asylum‑seeker accommodation.

Under the second ground, Epping Forest criticised Mould J for giving paramountcy to a non-planning consideration, "namely the need to use hotels to accommodate asylum seekers in order to satisfy the SSHD's statutory duties".

This criticism was "hopeless", the Court of Appeal said, confirming that the need to provide accommodation for destitute asylum seekers is capable of being a relevant planning consideration and that the judge was entitled to give significant weight to that factor in the overall balance.

Ground two also included a complaint that Mould J failed to take adequate account of community tensions and protest activity. The Court of Appeal also rejected this point, finding the judge had analysed these issues carefully in the light of the Court of Appeal’s judgment on the appeal against the temporary injunction.

"The assessment of such issues was a matter for the judge and is not arguably open to challenge, whether viewed in planning terms or purely as an exercise of discretion as to whether to grant an injunction," Lady Justice Andrews and Lord Justice Holgate said.

"Given that the judge decided that the grant of a s.187B injunction would not be commensurate with the nature and degree of all the harm resulting from the use of the hotel to accommodate asylum seekers, it would not have been proper for him nonetheless to have granted that injunction under that statutory power in order to address 'community tensions' or protests. Instead, the judge rightly referred to other powers exercisable by, for example, the police to address such concerns."

The Court of Appeal meanwhile concluded that High Court judge was entitled to decide the Home Secretary had a distinct interest requiring separate representation, and to award her costs.

On ground four, the Court of Appeal concluded that there was no procedural unfairness and no error of law in the judge’s order for a payment of £95,000 to Somani Hotels on account of its costs.

The Court of Appeal went on to find that Epping Forest had "not shown any other compelling reason why permission to appeal should be granted".

Responding to the news, Cllr Chris Whitbread, Leader of Epping Forest District Council, said the council was "angry and hugely disappointed", adding that the decision "marks the end of a lengthy legal battle".

He said: "This decision represents the end of the court process for challenging the use of the Bell Hotel as asylum accommodation.

“Despite the disappointment our residents will feel, we will continue to monitor the situation closely. We will use all powers available to us, working with the police and partners, to support Epping, its residents, and protect community safety. I will continue to use every opportunity to call for what our residents want and once again appeal to the Home Office to do the right thing and close the Bell Hotel in Epping."

Adam Carey