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R (on the application of Lisle-Mainwaring) v RBKC

DATE: 14 Mar 2017

In R (Lisle-Mainwaring) v. Isleworth Crown Court and Royal Borough of Kensington and Chelsea the High Court today quashed the section 215 Notice which required the owner of the widely-publicised red and white “stripey house” in Kensington and Chelsea to repaint it in white. 

Overruling the decisions of the Brentford Magistrates Court and the Isleworth Crown Court, Gilbart J held that it was not a proper use of section 215 to issue a notice which was directed at a matter of aesthetic judgment, rather than maintenance or repair.  Using section 215 to deal with questions of aesthetics fell “outside the spirit and intention of the Planning Code”, where the powers of a local planning authority to limit permitted development rights or discontinue lawful uses was subject to the requirement to pay compensation.

In that context, Gilbart J held that it was impermissible for a Magistrates’ or Crown Court to take account of the terms of planning policies or the reasons for the designation of a Conservation Area. 

Gillbart J also concluded that the Claimant was entitled to invoke the defence under section 217(b), that “the condition of the land to which the notice relates is attributable to, and such as results in the ordinary course of events from, the carrying on of operations or a use of land which is not in contravention of Part III” of the Town and Country Planning Act 1990.  In so doing, he rejected the suggestion that the test was whether the exercise of permitted development rights ordinarily resulted in amenity harm, observing that “it is the condition that is the result one must consider, not whether it harms amenity.”  The “ordinary course of events” was not an exercise in expectation, anticipation or prediction, but a “concept derived from factual causation”.  Given that the GPDO permitted the painting of a building in any colour, it was “very hard to see how a choice of colour other than white, or a colour scheme involving more than one colour, [could] fall outside the ordinary course of events”.

In conclusion, he observed that the problems to which the section 215 Notice in this case gave rise could be gauged from the fact that it compelled the owner to repaint the building white, even though on the day after this had been done it could be repainted in any other colour pursuant to the GPDO.

Paul Brown QC acted for the Claimant, Zipporah Lisle-Mainwaring. Andrew Parkinson acted for the Royal Borough of Kensington and Chelsea.

A copy of the judgment can be found here.