Change of use issues – when is a change “material”?

The recent 2025 litigation of Epping Forest District Council v Somani Hotels Limited [2025] EQHC 2183 (KB), which related to injunctive relief sought by the council against the use of a hotel in Epping Forest to house asylum seekers, is an interesting example of the complexities associated with the “material change of use” assessment.

Hotels are use class C1, which means any hotel, boarding or guest house where no significant element of care is provided. Hostels are a sui generis use, meaning ‘in a class of its own’. There is no specific use class for asylum seeker accommodation and it is arguable whether it aligns more closely with a hotel use (i.e. the same use class as the hotel in Epping Forest) or a hostel use (i.e. a different use class). 

The change from hotel use to hostel use is typically considered material however, as observed by the High Court in the case of Ipswich Borough Council and East Riding of Yorkshire Council in 2022, the distinction between a hotel and a hostel is a fine one. The materiality of such a change depends on the planning consequences including local policy, environmental impacts, economic and tourism impacts, affects on character and amenity and the scale and nature of the activity proposed. The specific planning issue of whether the change from hotel to asylum seeker accommodation is material in the Epping Forest case was not determined as the proceedings related to an injunction and were not related to an enforcement notice or Certificate of Lawfulness in connection with the use.

In determining whether or not a change of use is material it is also relevant to consider if any change is de minimis. Proportion of land use can be relevant where the change involves a change of use of only part of the property.

The 2021 case of Sage, which provides a helpful summary and analysis of the relevant principles generally, related to whether the use of a timber out-building as a commercial gym was incidental or ancillary to the use of the primary dwellinghouse. The location of the dwellinghouse, its size and the extent of its curtilage, and the nature and scale of the activity said to be incidental were all relevant factors. The court agreed with the planning inspector that the scale of the business-related training sessions could not reasonably be considered immaterial or incidental to the enjoyment of the dwellinghouse (i.e. there had been a material change of use).  

In practice, whether or not there has been / will be a material change of use requires careful consideration of the facts, the legal framework and previous decisions of the planning inspectorate and the courts with factual similarities.

The Russell-Cooke planning team frequently advises clients on whether a development proposal will result in a material change of use and therefore whether planning permission is likely to be required. They also advise clients in the context of enforcement action taken, or proposed to be taken, by local planning authorities alleging that an unlawful material change of use has occurred.

Annabelle Lee is an associate in the real estate, planning and construction team, advising clients on a broad range of environmental and planning law issues.