Planning & Environment

A stone’s throw away from a red and white striped house in the sumptuous environs of the Royal Borough of Kensington and Chelsea (“RBKC”), there is a blue plaque is dedicated to the philosopher John Stuart Mill.

Mill, in ‘On Liberty’, opined that the individual ought to be free to pursue tastes (unless they harm others). The publication of Mill’s treatise may have pre-dated the first Planning Act by some 89 years; however his argument has some relevance to a much-publicised planning case concerning the colourfully adorned terraced townhouse close to his former home.

What Happened?

In March 2015, RBKC served a notice on Ms Lisle-Mainwaring requiring her to re-paint her red and white striped property on account of its condition and appearance being “incongruous with the streetscape of South End and the local area” and “detrimental to the character and appearance of the Conservation Area”.

Section 215 of the 1990 Act (section 179 in Scotland) allows for a local planning authority (“LPA”) to serve a notice requiring the proper maintenance of land, if it appears to the LPA that the amenity of an area is adversely affected by the condition of land in its area. The effect of such a notice is to compel the recipient to remedy the condition of the land as specified in the notice within 28 days.

The section 215 notice was duly appealed and, over a two-year period, the case navigated its way through the Magistrates’ Court, the Crown Court and finally the High Court where, last month it was held that the painting of the property in red and white stripes was “entirely lawful” and the section 215 notice was duly quashed. The stripes were there to stay.

Analysis

Mr Justice Gilbart ruled that what had, in fact, affected the amenity of the area was the choice of colour scheme as the property was not otherwise in disrepair to the extent that a section 215 notice was an appropriate means of remedy.

Accordingly, the use of a section 215 notice to deal with aesthetics rather than issues of disrepair or dilapidation was found to “fall outside the intention and spirit of the Planning Code” and the notice was quashed.

In summary, the High Court judgment finds that section 215 of the 1990 Act ‘does exactly what it says on the tin’ (ahem) and simply deals with issues of disrepair or dilapidation relating to the condition of the land, not its appearance.

Why is this significant?

It was noted by Mr Justice Gilbart that the RBKC had “ample other steps available to it under the Planning Code” to remove the red and white stripes “for minimal costs” but failed to use them. There was an option for RBKC to make an order under section 102 of the 1990 Act (the equivalent of a section 71 discontinuance order in Scotland) that would have required alteration of the property. This option would require compensation relative to the diminution of the interest in the land, which at worst would have been “a claim for the cost of re-painting”.

Interestingly, in Scotland painting the exterior of a building within a conservation area is not permitted development, whereas in England it is (unless the scope of permitted development is otherwise restricted by an Article 4 direction). Had RBKC been successful in its section 215 notice compelling Ms Lisle-Mainwaring to re-paint her property, it would have been competent for her to re-paint the stripes again immediately afterwards.

Case Reference: Lisle-Mainwaring, R (On the Application Of) v Isleworth Crown Court & Anor [2017] EWHC 904 (Admin)

Geraint Hughes

Geraint Hughes

Solicitor at Brodies LLP
Geraint is a solicitor in our Planning Team andChartered Town Planner based in Glasgow. He has experience of advising developers, land owners and local authorities on all planning law matters across a broad range of sectors including retail, residential, urban regeneration and renewable energy.
Geraint Hughes

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