Quarterly In Advance Winter 2018 – Do You Need Permission To Paint Your Property?

10 / 01 / 2018

The recent Court of Appeal judgment in the case of Lisle-Mainwaring and the Secretary of State for Communities and Local Government v. Carroll brought to a close a lengthy planning dispute between two Kensington residents. At the heart of the saga was Ms. Lisle-Mainwaring’s desire to demolish a terrace property and build a more modern house with a basement in its place.

However, it was the sideshow to that main event that attracted the media interest, namely the painting of Ms. Lisle-Mainwaring’s house in red and white stripes. Whether motivated by revenge or a passion for Sunderland Football Club we can only guess, but it raised some very interesting legal points in itself, culminating in the High Court case of R (Lisle-Mainwaring) v. Isleworth Crown Court and Royal Borough of Kensington and Chelsea (“the stripy house case”).

If you’ve ever wondered what consents you need to paint the outside of your property, and the degree to which a local planning authority (“LPA”) can curtail the painting on amenity grounds, then the stripy house case provides useful guidance.

Whilst painting the exterior of a building is a ‘building operation’ for the purposes of section 55 of the Town and Country Planning Act 1990 (‘TCPA’), no application for planning permission is required because permitted development rights (under Schedule 2 Part 2 Class C of the Town and Country Planning (General Permitted Development) (England) Order 2015) automatically grant permission. That’s the case even if the building is in a conservation area.

For listed buildings, although planning permission would not be required, listed-building consent would be needed if the painting would affect the property’s character as a building of special architectural or historic interest, even if you only intend to paint your front door.

So would you have free rein to paint a building’s exterior if the building isn’t listed? In the stripy house case, the LPA’s view was that you wouldn’t, and the courts initially agreed. The LPA couldn’t take planning enforcement action as the painting was permitted development, so they instead sought to use lesser-known powers to force Ms. Lisle-Mainwaring to restore the paint scheme to one more in keeping with the area.

Section 215 of the Town and Country Planning Act 1990 empowers local planning authorities to serve notices requiring owners or occupiers to remedy the condition of their property if the authority thinks it adversely affects the amenity of the area. Even though they are most often used to require untidy or derelict sites to be cleaned up, the LPA decided that it would be appropriate to serve a section 215 notice in this case.

The scope of planning authorities’ discretion to serve section 215 notices was tested after Ms. Lisle Mainwaring appealed against the LPA’s decision to serve one. The High Court ruled that section 215 notices cannot be used to try to deal with issues of aesthetic judgement rather than disrepair or dilapidation. The painting of the exterior of a building is authorised by statute and it was not permissible for the LPA to go beyond the statutory provision by serving a section 215 notice to try to arrive at what it perceived to be a fairer outcome. The Court emphasised the statutory powers available to LPAs to limit permitted development rights by the use of ‘Article 4 Directions’ or to require discontinuance of a lawful use, but in such cases the owner would be entitled to compensation. It would be inconsistent with the ‘Planning Code’ to allow the LPA to limit a lawful use without the payment of compensation.

The Court sent a clear message that property owners are free to paint the exterior of their properties in their chosen colour scheme unless the LPA has followed the correct statutory procedure to remove those rights.