Planning saga continues for infamous candy-cane house

5th October 2017

Background

In March 2015, property developer Zipporah Lisle-Mainwaring (ZLW) painted the three-storey façade of her multi-million pound townhouse in red and white ‘candy cane’-style stripes. Prior to this, ZLW had applied to the Royal Borough of Kensington and Chelsea (the Council) for permission to demolish the terrace property in South End, Kensington, bringing to an end its existing use as a storage space and with the intention of replacing the building with a new home.  The development proposals raised numerous objections from neighbours and also failed to gain support from the Council as local planning authority, due to its contravention of their (then, newly-adopted) planning policy restricting basement conversions.  Hence it was later alleged that ZLW painted the property merely to spite those opposing the redevelopment plans – although this was strongly denied by ZLW.  Following completion of the ‘paint job’, the Council served ZLW with a notice under the Town & Country Planning Act 1990 (the 1990 Act) and required repainting of “all external paintwork located on the front elevation white” within 28 days.  And so the saga began….

Planning policy challenge

Following the above, ZLW’s first appearance before the courts occurred in July 2015. ZLW challenged the Council’s policy of restricting basement development to just one storey in depth.  Her counsel requested that judges quash the planning policy due to it being “fundamentally flawed”.  It was argued that the policy had been adopted without due regard to relevant planning issues and without due consideration as to whether there was “a reasonable alternative”.  (The matter reached the court during a period when the extent of subterranean developments was a ‘hot topic’ in the planning world more generally.  As detailed in a Walker Morris briefing note at the time, a number of local authorities sought to restrict extensive basement developments due to concerns surrounding disturbance from noise and dust; vibration; possible undermining of building’s structural integrity; displacement of conventional occupiers; and resulting undue distortion of density / square footage.) However, the High Court dismissed ZLW’s case, finding that the Council’s decision to adopt the policy had been reasonable.

Resisting planning enforcement action

During late 2015, ZLW appeared in court again – this time appealing against the Council’s enforcement notice and order that the stripes be painted over. Local planning authorities have the power to use a Section 215 Notice where the condition of land or buildings adversely affects the amenity of an area.  The Notice usually requires the owner or occupier of the land to clean-up the site and/or deal with the poor state of a building.  In this instance, the Council had issued the Notice stating: “It appears to the Council that the amenity of a part of the area is adversely affected by the condition of the land” and that the stripes were “incongruous with the streetscape of South End and the local area”.

ZLW argued that a Section 215 Notice could only be used to remedy a property’s state of repair, not control the colour or manner in which a property is painted. However, in a decision issued in January 2016, District Judge Susan Bayne ruled that the enforcement notice was “entirely appropriate”.  It was stated that painting the property with red and white stripes, in an area where other properties use only a limited and muted pattern of colours, was “garish” and had “an adverse effect on the amenity of the area”.  This was particularly in light of the house being located in the Kensington Square Conservation Area, where visual integrity was “fundamental”.  The judge dismissed as irrelevant claims that the painting was of no concern to some people, deeming it sufficient that the painting could ‘harm’ those living opposite and any passer-by.  ZLW was given 28 days to repaint the property.

The matter was again dismissed by the court in July 2016.  HHJ Johnson, sitting at Isleworth Crown Court, accepted the Council’s evidence that the paintwork was “unsightly” and gave considerable weight to the harm that the “garish stripes” caused to the conservation area’s appearance.  In addition, the court found that a Section 215 Notice: (1) does not only have to be used where there is a current maintenance issue; and (2) could be used to regulate land’s appearance. While accepting that painting a property is permitted development and does not require any planning permission, this finding of law seemed to usefully clarify the extent of a local authority’s powers under section 215 of the 1990 Act.

Judicial Review

Still being unwilling to repaint the property white, ZLW launched judicial review action at the High Court in London and finally achieved ‘success’. In April 2017, Mr Justice Gilbart ruled in her favour and quashed the Section 215 Notice, stating that whether or not the painting had been done out of pique, eccentricity etc. was irrelevant – “Section 215 does not entitle one to address the motive of a landowner”.

The High Court considered whether a Section 215 Notice could be used in a situation where the complaint is that a painting scheme harms amenity, so that it seeks to rectify a matter of aesthetics as opposed to a lack of maintenance or repair. On this point of law, Gilbart J ruled: “In my judgment, to allow a local planning authority to use section 215 to deal with questions of aesthetics, as opposed to disrepair or dilapidation, falls outside the intention and spirit of the Planning Code”.  It was felt that to uphold the Notice would give local authorities power to cause buildings to be repainted, altered or removed simply on the basis of disliking their appearance.  It was therefore unlawful to use section 215 of the 1990 Act in any situation where there was no need for maintenance or repair of the land.

Proceeding with the development

Following the Council’s rejection of the application to demolish and redevelop the building, ZLW had been granted permission to convert the building from storage to residential use by the Planning Inspectorate in February 2016. After a series of public inquiries and court hearings, ZLW also won consent to demolish the multi-million pound building entirely and replace it with a brand-new luxury dwelling.  The Inspector found:

• that the proposals would “result in a degree of enhancement to the character and appearance of the conservation area”‘;
• no policy objections to the project existed; and
• that the development would bring a material benefit, in terms of providing an additional family home in the area.

The Inspector’s decision has been upheld by the Court of Appeal, whose judgment published in September 2017 found:

• objectors’ suggestions that it was possible for the building to revert to office use – in accordance with local planning policy – would make “no sense, economically or commercially”;
• the Inspector had been entitled to conclude this prospect was just a theoretical one and not possible in reality;
• the development proposals therefore did not conflict with local planning policies; and
• the plans satisfied the prerequisite of being “sustainable development” in accordance with national planning requirements.

The end of the story?

It seems that the landowner’s tenacity has won the day. Having spent a reported £1 million in legal fees, ZLW is now free to proceed with redevelopment of the now infamous ‘candy cane’ striped house – including installing a luxury basement swimming pool as part of the proposal.  Presumably her victory tastes ‘sweet’!

However, objectors could still take the matter further. The case has featured on Channel 4’s ‘Posh Neighbours at War’ and one of the main opponents to date has been a businessman and neighbour who was outbid for the property when ZLW purchased it in 2012.  Whether or not a subsequent appeal is made to the Supreme Court remains to be seen, and Walker Morris will monitor and report on any key developments.