The High Court has handed down judgment in favour of a landowner who painted the exterior of her Kensington townhouse in red and white stripes in the case of Lisle-Mainwaring R (oao) V Isleworth Crown Court & Anor [2017] EWHC 904 (Admin).
The case concerned a notice issued by the Royal Borough of Kensington and Chelsea (RBKC) pursuant to S.215 of the Town and Country Planning Act 1990. The notice required a landowner who had painted her property in red and white stripes (allegedly to aggravate neighbours who were challenging her planning permission to redevelop the property by way of judicial review) to repaint the property white.
The Claimant landowner had appealed against the Notice to the Magistrates’ Court which found in favour of RBKC and then subsequently appealed to the Crown Court, which also dismissed the landowner’s appeal. This case was an application for judicial review by the landowner of the Crown Court’s decisions.
The law
S.215 of the Town and Country Planning Act 1990 provides that:
(1) If it appears to the local planning authority that the amenity of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section.
The painting of the exterior of any building or work is permitted development granted pursuant to the Town and Country Planning (General Permitted Development) (England) Order 2015. This includes the application of any colour.
The Notice
RBKC’s reason for issuing the Notice was:
“The property is located in a prominent location in the Kensington Square Conservation Area. The condition and appearance of the property, particularly the red and white painted stripes on the front elevation, is incongruous with the streetscape of South End and the local area. The resulting condition and appearance of the land is considered detrimental to the character and appearance of this part of Kensington Square Conservation Area, does not achieve a high level of amenity or protect views within the conservation area to the detriment of the amenities of Policies CL3, CL11 and Kensington Square Conservation Area Proposal Statement.”
The decision
The Claimant argued that as a matter of law, the fresh application of paint was not a matter which affected ‘the condition of the land’. In reviewing the Court’s decision agreeing with the Council’s rationale for issuing the Notice, Justice Gilbert held that the Council had improperly used S.215 in an attempt to alter a lawful painting scheme where there was no want of maintenance or repair in the land and quashed the decision of the Crown Court.
“The analysis of the law set out above shows that RBKC could have used alternative powers it was given under the Planning Code, which protected the Claimant’s rights to compensation, albeit that it would be modest, without imposing a criminal liability if she fails to remove that which she had been permitted by law to apply. The problem that this S.216 Notice raises can be gauged from its requirements. It compels the landowner to have a white frontage, even though on the day after the building had been painted, the landowner could paint it another colour pursuant to Class 2.” (Para 116 of judgment)
The full judgment can be accessed here.
Comment
This case helpfully clarifies the use of S.215 Notices and particularly the issues they are designed to address. It also provides a helpful reminder of other powers available to local authorities such as Article 4 Directions, Revocation Orders and Discontinuance Notices.
Many local planning authorities issue Article 4 Directions preventing works to properties in Conservation Area that could ordinarily be undertaken without planning consent. If you are unsure as to whether you can undertake works to your property or have been served with a S.215 Notice or any other form of planning notice we would recommend that you seek prompt legal advice.
For more information on any planning matters, please contact us on 0800 024 1976 or on our contact form.