court of appeal judgment on asylum accommodation centre planning challenge

23 June 2023: The Court of Appeal today dismissed Braintree District Council’s appeal against the refusal of their application for an injunction to prevent the development of an asylum seeker accommodation centre at Wethersfield airfield. The Court considered: 1. Whether the Council has jurisdiction to enforce planning control bring the planning case against the government (Home Secretary) and 2. Whether the government could bypass planning permission on the ground that the situation was an emergency under the “permitted development” rules.

The intervention was funded by the Strategic Legal Fund, managed by ILPA, to make an application to intervene because of the importance of the outcome to the treatment of asylum-seekers around the UK. West Lindsey DC and Rother District Council were also granted permission to intervene in respect of similar plans in their respective areas. All three interveners were granted permission to intervene by written submissions.

The Court of Appeal agreed with the High Court that the law does not give Local Authorities jurisdiction to bring proceedings for an injunction in respect of Crown land without consent.

The Court of Appeal however followed the approach proposed by our client, that the court should not determine the emergency point. Gabriel’s submission in the appeal was that the planning court was the wrong venue for this case and that it would be better decided by the High Court in the judicial review in the context of the full facts. Gabriel has separately applied for a judicial review of the Home Secretary’s decision and filed evidence concerning whether the circumstances constituted an emergency. This evidence includes an expert report highlighting Home Office delays in processing asylum claims and pointing to similar numbers of asylum-seekers being accommodated 20 years ago. Braintree District Council has filed a similar claim highlighting a lack of consultation. West Lindsey DC has also brought a judicial review in relation to the proposed centres at Scampton in Lincolnshire.

At a hearing on 12 and 13 July, the Administrative Court will consider whether the three judicial review claims should be granted permission. This Court of Appeal’s judgment has left the door fully open to the High Court to hear the full arguments and decide whether the Home Secretary is acting lawfully in using emergency powers to avoid usual planning processes for accommodation centres.

The cases are highly significant for any local council in the UK because it will consider whether the government can simply bypass planning law by declaring an emergency.

Sue Willman of Deighton Pierce Glynn solicitors said:

“The Court of Appeal’s decision is a small win for our client. The Home Secretary failed in her efforts to press the Court of Appeal to decide that the lack of adequate accommodation for asylum-seekers is an emergency justifying accommodation centres with no consultation. The judicial review on 12 July is a chance for our client to present the full picture of asylum processing delays and a failure to contract proper housing. He will also ask why the Home Secretary used an impact assessment for 12 months, when they were planning a long-term centre at Wethersfield.”

Gabriel was  represented by Sue Willman, Emily Soothill and Ahmed Ali from Deighton Pierce Glynn Solicitors instructing Alex Goodman KC and Charles Bishop from Landmark Chambers.

Gabriel is crowdfunding the costs of his judicial review case here:

The intervention was funded by the Strategic Litigation Fund, managed by ILPA.

A copy of the Court of Appeal judgment is available here.

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