Town and country planning – Harm to amenity – Proper maintenance of land – Claimant painting front of house in red and white stripes – Second defendant local planning authority issuing notice under section 215 of the Town and Country Planning Act 1990 – Magistrates Court dismissing in part appeal against notice – First defendant Crown Court dismissing appeal against decision – Claimant applying for judicial review – Whether section 215 notice appropriate for complaint that planning authority considering choice of painting scheme harming amenity – Appeal allowed
The claimant was the freehold owner of a house in the Royal Borough of Kensington and Chelsea which she had acquired in 2012 intending to convert it into a dwelling for her own use. At that time the building was in use as offices but in 2013 she changed the use to storage as permitted by part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (GPDO).
The claimant later had the premises painted in a colour scheme of red and white stripes which was lawful, having been carried out by Class C2 of the GPDO. The second defendant local authority served a notice under section 215 of the Town and Country Planning Act 1990 (power to require proper maintenance of land) on the basis that the resulting façade was harmful to the amenity of a conservation area and the appearance of the property did not comply with core strategy policies. The notice required the claimant to repaint the front elevation in white.
The magistrates court dismissed the claimant’s appeal against the notice in part. The Crown Court dismissed her appeal against that decision, concluding that the façade was harmful to amenity even though there had been no complaint of any want of repair. It found that the claimant had painted the house in stripes as a matter of pique. The claimant applied for judicial review of that decision. An issue arose for determination whether a section 215 notice might be used when the complaint was that the planning authority considered that the choice of painting scheme harmed amenity.
Held: The appeal was allowed.
(1) The context of section 215 was to deal with land or buildings whose condition, in the usual sense of that word, was such as to cause an adverse effect on amenity. In the present case, the complaint of the second defendants was not that the use of the land was unacceptable, nor that the fabric of the building was out of repair or in need of maintenance. To allow a local planning authority to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation, fell outside the intention and spirit of the planning code. A local planning authority had the power to limit permitted development rights or to discontinue lawful uses, but not without payment of compensation. But that was not to impose a great burden on a local authority. In this case, under section 102, the second defendants 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 (section 115). On the basis of their own case, that diminution in value must have been effectively nil. There would at worst be a claim for the cost of repainting (section 115(3)): Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183 and R v Montila [2004] 1 WLR 3141 applied. Britt v Buckinghamshire County Council [1964] 1 QB 77, R (on the application of Allsop) v Derbyshire Dales District Council [2012] EWHC 3562 (Admin) and Berg v Salford City Council [2013] EWHC 2599 considered.
(2) Section 215 did not entitle one to address the motive of a landowner. A garish colour scheme might have come about because of an owner’s eccentricity or because of his/her pique. The section did not apply any differently to the latter than it did to the former. The effect of upholding the notice would be to give a local planning authority power to cause buildings to be removed, altered or repainted because the authority (and Magistrates’ or Crown Court on appeal) disliked the appearance thus created, on grounds that related only to aesthetics. It was an improper use of section 215 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. Therefore, the notice and the decision of the Crown Court would be quashed.
Paul Brown QC (instructed by Richard Max & Co) appeared for the claimant; the first defendant did not appear and was not represented; Andrew Parkinson (instructed by the Royal Borough of Kensington and Chelsea Director of Legal Services) appeared for the second defendants.
Eileen O’Grady, barrister
