EXPLAINED: Challenge to Eight Acres asylum hotel by Moray Council overturned
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A MORAY Council challenge to the Eight Acres' use as an asylum hotel has been overturned by a Scottish Government Reporter.
In this article we explain the case: how it began; why the council's verdict was reversed; both sides of the argument; and what the latest decision means in practice.
The issue: 'Lawful use' and 'significant care'
In February last year the company which owns the Eight Acres Hotel, LM Elgin 1, applied for a Certificate of Lawful Use from Moray Council.
Glasgow law firm Montagu Evans, acting for LM Elgin 1, sought the document as prove that planning permission was not needed for The Eight Acres Hotels' to be used as an asylum hotel.
Hotels, like hostels and boarding houses, fall into Class 7 of the Scottish planning rules.
However, the rules state that if "significant care" is delivered at a site it cannot be considered a hotel.
This would become the central point of debate in the Eight Acres dispute.
Councils are responsible for deciding whether to issue a Certificate of Lawful Use, based on whether use rules are being met.
And in August, Moray Council refused to grant the Eight Acres' request.
It argued that the asylum hotel scheme did not meet Class 7 rules, so LM Elgin 1 would need planning permission to officially change its use.
Speaking to The Northern Scot this week, a council spokesperson said this would have given the council the chance to consider "the economic impact of having a hotel indefinitely taken out of use for tourism related purposes".
Overturned
However, following an appeal by Montagu Evans, Scottish Government Reporter Paul Cackette decided to reverse Moray Council's decision.
Mr Cackette awarded LM Elgin 1 a certificate of lawful use, meaning that the firm does have to apply for planning permission to change the site's use and giving it a strengthened legal position.
His verdict, released Monday, March 4, found that some services delivered at the Eight Acres were forms of care – beyond what a normal hotel would provide.
Examples included "almost daily" visits from NHS staff, English classes, and resettlement aid in the face of Home Office rules which stop asylum seekers from working.
Montagu Evans, in their appeal, had argued that no forms of care were being delivered other than those typical in a hotel.
However, for Mr Cackette, the care on offer fell short of being "significant care", and the site's use was lawful.
Why did the council refuse the application?
Moray Council argued that asylum seekers at the Eight Acres receive "significant care" which was cnealoser to a residential institution – like hospitals, nursing homes and residential schools – than to the building's traditional use.
Principal planning officer Neal MacPherson, in the initial verdict, argued that services including healthcare and resettlement support were delivered at the site.
Therefore, Moray Council claimed that the housing asylum seekers did not fit any specific use category – and would therefore require planning permission.
Within case documents, the council argued that it had meetings about the hotel plan "prior to the hotel being closed and asylum seekers being placed in the accommodation".
It added that: "The need for prior planning permission on the basis of a change of use was identified at that time."
Documents also show that Moray Council's head of economic growth and development Jim Grant asked Scottish Government advice on whether to grant the certificate.
In response, Scottish Government chief planner Fiona Simpson said that hotels "use for asylum seekers is not comparable to their use for other groups".
She adds: "As a result, this is not something I feel that the Scottish Government would seek to be involved in or actively encourage".
Also included in the council's verdict were details of the increased density at the hotel since the scheme's launch.
Documents also show that the initial figure of 50 asylum seekers at the hotel has been increased to up to 80, with rooms needing to be shared to enable this capacity.
The council also highlighted that, as of August last year, they were providing resettlement support because the company tasked by the home office to provide security and support – Mears – could not recruit a Welfare Support Officer.
The appeal
Montagu Evans filed an appeal on behalf of LM Elgin 1, controlled by Thai hotel chain the Lake Merritt Group, in November.
The firm's letter argued that the building, purchased in 2020, was providing no services besides those available in a normal hotel.
It added that the only thing to have changed at the Eight Acres was "the circumstance of the guests that are using the hotel’s facilities".
Moray Council's initial verdict argued that Mears had a "duty of care" for the residents.
However, the Montagu Evans appeal said: "It is strongly denied that Mears 'supervises' the asylum seekers.
"They are entirely free to come and go as they please, and similarly are free to eat or not eat in the hotel."
It adds: "The Council’s assertion that asylum seekers 'are effectively held at this hotel address until their asylum application has been processed' is inaccurate.
"The asylum seekers can come and go from the hotel as they please, just like all guests of a hotel can.
"The hotel is used to ensure on arrival in the country Mears and Home Office are able to provide safe accommodation and food/support.
"Mears seeks to move people from hotels into a home in the community as soon as possible."
The law firm also argued that providing English lessons was one of several "recreational" activities and not a form of care.
It concludes: "In essence, there is no change of use proposed at the premises – simply a change of the circumstance of the guests that are using the hotel’s facilities.
"We are not aware of any planning conditions which restrict the demographic of occupant who can utilise the hotel."
The law firm also denied that Moray Council had been forced to take on any responsibilities that should have been undertaken by Mears.
Council: Asylum backlog meant 'a blind eye being turned toward due process'
One particular flashpoint between Moray Council and Montagu Evans stemmed from council claims that the Home Office's asylum scheme had seen hotels used "without due process".
Published in response to the appeal, a council statement had argued that the UK's lack of asylum processing centres "has led to a blind eye being turned toward due process in other parts of the country".
It added that there has "undeniably been a wider political urgency to accommodate asylum seekers which has led to many hotels being used, without due process in respect of the planning system."
The letter also described Montagu Evans' claim that there was no relevant care provided at the Eight Acres as "intentionally misleading".
"For much of the period the Eight Acres has been occupied by asylum seekers required an almost continual presence on site by Moray Council, NHS staff and other agencies to provide the necessary level of care," the report said.
"The appellants state that all that has changed is the ‘guests’ circumstances, but the current use clearly does not fit within the parameters of Class 7 Hotels and Hostels of The Town and Country Planning (Use Classes) (Scotland) Order 1997 as Amended.
"The hotel is being used as a holding centre for asylum seekers while their applications are being processed."
However, the law firm responded by saying: "These statements are, with respect, bare assertions unsupported by any evidence.
It also described the council's claims that "varying degrees of care" are provided in asylum hotels throughout the country as "the council’s assertion in this appeal dressed up as fact".
It adds: "As to the assertion of a 'blind eye being turned toward due process in other parts of the country', this disregards the fact that there have been several challenges by local authorities, both through planning systems and in the Courts, to hotels being used for asylum seekers in recent years.
"In the vast majority of cases the local authorities have been unsuccessful and no material change of use has been found."
What is currently happening at the Eight Acres?
The Scottish Government Reporter made a site visit on January 18, 2024.
Moray Council sent an update on January 29 afterwards, which claimed that the rising number of asylum seekers at the hotel meant that "the level of activity in terms of support has diminished".
However, it added that "the care still needs to be provided and still considered to be significant".
The update also detailed that the NHS was visiting the hotel four to five days a week, arranging GP, dental and optician appointments and pharmaceutical help.
New asylum seekers undergo "thorough health assessment", including immediate needs such as innoculations being met.
And Moray Council have a dedicated Resettlement Project Officer based at the hotel for 18 hours a week over three to five days.
The update also confirmed that hotel leisure facilities are "not currently in use".
It adds: "The distinct caveat within Class 7 regarding no significant level of care makes it very clear, that the current level of support provided at the Eight Acres Hotel goes beyond the level of care permissible within Class 7.
"Class 7 certainly does not encompass medical care and treatment, more appropriately occurring within Class 8 institutions under the above definition.
"While the majority of any medical treatment may occur offsite, the NHS presence at the Eight Acres Hotel can certain be defined as ‘medical care’."
Council response
A Moray Council spokesperson said: “We determined that the level of involvement and care provided on site up to five days a week by council staff, NHS staff and volunteers at the Eight Acres Hotel is significant enough to change its use in planning terms.
“However, the Scottish Government Reporter has deemed this level of care not to be significant, classing it as 'limited'.
"The Reporter has found in favour of the appellants and therefore upheld the appeal and accepted the Certificate of Lawful Use submitted by LM Elgin 1 Ltd.
“Had the need for planning permission for a change of use been established, a range of matters would have been considered, including the economic impact of having a hotel indefinitely taken out of use for tourism related purposes.”
