The court has upheld a property owner's judicial review challenge of an order that required her to paint her striped townhouse white, on the basis that the local planning authority (LPA) did not use the correct route to control the appearance of the property.
The decision reminds LPAs of the circumstances in which it is appropriate to serve a section 215 notice. It also highlights the other options available to local planning authorities who want to restrict the rights of property owners.
Section 215 enables a local planning authority (LPA) to serve a notice if it appears to it that the amenity of the area is adversely affected by the condition of the land. The LPA can specify the action that must be taken to remedy the situation.
In 2015, the Royal Borough of Kensington and Chelsea (RBKC) issued a notice under section 215 of the Town and Country Planning Act 1990, requiring Zipporah Lisle-Mainwaring to repaint her red and white striped townhouse with white paint. Ms Lisle-Mainwaring appealed to the magistrates' court against the section 215 notice. This failed, and the matter was taken to the Crown Court.
The Crown Court decided that, although painting the front of the building with red and white stripes was a lawful development that did not require planning permission, this did not preclude a section 215 notice from being served. The court stated that the painting of the front of the house in red and white stripes did have an adverse effect on amenity, and harmed the uniformity of the buildings on the street and in the conservation area. Therefore, the use of a section 215 notice to remedy this was appropriate.
The painting of the exterior of any building is permitted under permitted development rights (PDR). PDR effectively grant planning permission without the need to apply for it. In many cases, where a property is located in a conservation area, additional controls are imposed on the use of PDR. This is not so in the case of exterior painting.
Ms Lisle-Mainwaring's argued in the Crown Court that, had RBKC wanted to restrict the colour of paint used on the exterior of buildings, this ought to have been addressed by an Article 4 direction. An Article 4 direction removes or restricts PDR.
However, the Crown court rejected this argument, saying that "no other property owner has seen fit to paint their property in a manner even approaching the vulgarity of these stripes. It was not therefore something that could be foreseen."
The High Court took a different stance, and found that section 215 was not the appropriate way of dealing with pure aesthetics. Mr Justice Gilbart stated that "Parliament has not sought to prevent landowners, including those in Conservation Areas, from painting their houses in any colour or colours they wish, save and except if an Article 4 direction has been made. Parliament has determined, as part of the Planning Code, that compensation should be available if losses are caused by the making of an Article 4 direction."
The message is clear. If an LPA wants to restrict the rights granted to landowners, it must do so in accordance with planning legislation. This may require the payment of compensation. Whilst the appearance of land may merit the service of a section 215 notice if a building is, for example, dilapidated or unkempt, it is not appropriate to try to regulate the colour scheme of an area. That should be dealt with by an Article 4 direction.
Contributor: Alexandra Holsgrove Jones
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions