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Owner of red and white striped house wins High Court appeal over s.215 notice

A woman who painted her townhouse in red and white stripes in a conservation area in London has won her appeal over a s.215 notice issued by The Royal Borough of Kensington and Chelsea.

In Lisle-Mainwaring, R (On the Application Of) v Isleworth Crown Court & Anor [2017] EWHC 904 (Admin) Mr Justice Gilbart concluded that it was an improper use of s 215 [of the Town and Country Planning Act 1990] to use it to alter a lawful painting scheme, when there was no suggestion that there was any want of maintenance or repair in the land.

Brentford Magistrates’ Court and Isleworth Crown Court had previously found that the painting scheme was harmful to amenity.

In issuing the notice The Royal Borough of Kensington and Chelsea had said: “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 the 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 neighbouring residents.

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“In the circumstances, the appearance of the property is not considered to comply with CS policies, particularly the aims of Policies CL3, CL11 and the Kensington Square Conservation Area proposal Statement."

In his ruling Mr Justice Gilbart said what affected the amenity of the area, and was found to do so by the Court, was the choice of colour scheme.

“That is, and is only, a matter of aesthetics. 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,” he said.

The judge added: “In my judgement to allow a local planning authority to use s 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation (as in Berg) falls outside the intention and spirit of the Planning Code.

“An LPA has the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. But that is not to impose a great burden on an LPA, as can be seen from the facts of this case. Here, the RBKC had ample steps available to it under the Planning Code which would have protected amenity, and would have exposed it to minimal cost. Under section 102 it could have issued a notice requiring the repainting of the building. Were it upheld, the level of compensation would be the diminution of the interest in land (s 115 TCPA 1990). On the basis of its own case, that diminution in value must have been effectively nil. There would at worst be a claim for the cost of the repainting (s 115(3)).”

Mr Justice Gilbart also said: “The problems which this s 215 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 in another colour pursuant to Class C2.”

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