Many people will remember the house painted in garish red and white stripes in a conservation area in the Royal Borough of Kensington and Chelsea which caused consternation in the local planning authority offices (not to mention the neighbourhood).
Since the painting was permitted development not requiring an express grant of planning permission, no doubt there was much head scratching in the planning office on what to do – until someone came up with the bright idea of serving a Section 215 notice. Section 215 of the Town and Country Planning Act 1990 contains a power to require proper maintenance of land. It enables a local planning authority, if it appears to them that the that the amenity of a part of their area is adversely affected by the condition of land in their area, to serve a notice requiring the condition of the land to be remedied. It is often used where buildings have become derelict. The Council served such a notice requiring the property to be repainted in white. Appeals were made by the owner to the Magistrates Court and to the Crown Court but they were rejected and the notice upheld, it being found that as a matter of law that the painting of the property is a matter that affects the condition of the land, and further that as a matter of fact, and in the Crown Court’s judgment, the painting of the property in this way had adversely affected amenity.
However a further appeal to the High Court has been successful. The judge Andrew Gilbart J. cautioned against a wide interpretation of “condition of the land” and he limited its meaning to the usual sense of that word, so as not to include questions of aesthetics or taste. He decided that a Section 215 notice cannot be used, where the complaint is not of lack of maintenance or repair, but of aesthetics. He also decided that the Section 215 notice could not be used to remove permitted development rights – painting in this case. He concluded that it is an improper use of Section 215 to use it to alter a lawful painting scheme, when there is no suggestion that there is any want of maintenance or repair in the land.
The decision may be applauded by libertarians but will not be welcome by local authorities. It is likely to significantly reduce the scope of the section and opens the way for legal challenges. The decision may well be appealed but subject to that, Banksys (or any form of graffiti) no longer need fear a Section 215 Notice being slapped on them.
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