Lisle-Mainwaring, R (On the Application Of) v Isleworth Crown Court & Anor

A Town and Country Planning Act 1990 section 215 notice may address the condition and appearance of land, including a building’s external appearance. It cannot, however, be used merely to reverse a lawful choice of paint colour or other aesthetic finish where there is no disrepair, dilapidation or want of maintenance. Such use falls outside the purpose of the statutory planning code and may bypass compensation safeguards applicable to the withdrawal or discontinuance of lawful development rights. Under section 217(1)(b), the relevant question is whether the condition of the land, rather than the resulting amenity harm, is attributable to and results in the ordinary course of events from lawful operations or use. Painting in any colour permitted by the GPDO ordinarily falls within that protection.

The claimant owned a building in a conservation area and painted its façade in red and white stripes under permitted development rights. The local planning authority served a notice under section 215 of the Town and Country Planning Act 1990 requiring the building to be repainted white.

The District Judge allowed the claimant’s appeal in relation to joinery but upheld the repainting requirement. The Isleworth Crown Court dismissed the further appeal and refused to state a case. The claimant sought judicial review, arguing that section 215 did not apply to a lawful aesthetic choice and that section 217(1)(b) provided a defence. The central issues were the meaning of “condition of the land” and the proper application of the ordinary-course-of-events defence.

1. The claim was allowed. The section 215 notice and the Crown Court’s decision were quashed.

2. Section 215 must be interpreted within the comprehensive planning code. “Condition of the land” can include appearance, and Britt v Buckinghamshire County Council establishes that condition is not confined to the intrinsic state of land or to inactivity. But that does not give a local planning authority a general power to control aesthetic taste.

3. The notice was an improper use of section 215. The building was not alleged to be in disrepair or need of maintenance. The complaint concerned only the red and white colour scheme. The statutory heading, “Power to require proper maintenance of land”, assisted the interpretation, while the Best Practice Guidance could not be used to expand the statute. The reasoning in Berg v Salford City Council concerned a dilapidated property and did not authorise section 215 notices directed solely to an unattractive finish.

4. The planning code permits painting the exterior in any colour under Class C2 of the GPDO. A local planning authority has other powers, including under sections 102 and 115, to discontinue or alter lawful development with compensation. It cannot use section 215 to obtain the same result without the statutory compensation regime.

5. Section 217(1)(b) asks whether the condition of the land is attributable to, and results in the ordinary course of events from, lawful operations or use. It does not ask whether amenity harm ordinarily results from the operation. The Crown Court therefore applied the wrong test. Given that Class C2 permits painting in any colour, a non-white or multi-colour scheme could not generally be treated as outside the ordinary course of events.

6. The claimant’s motive was irrelevant. The notice could not lawfully require repainting merely because the authority regarded the appearance as aesthetically unacceptable.

• District Judge: allowed the statutory appeal in relation to the joinery but upheld the requirement that the building be painted white.
• Isleworth Crown Court: dismissed the claimant’s further appeal and issued written reasons on 12 July 2016.
• High Court (Administrative Court): granted judicial review, quashed the notice and quashed the Crown Court’s decision.