Business Law: Luke Cain highlights a Conservation Area pitfall

Luke Cain, a solicitor in the property departmentat Barker Gotelee.

Luke Cain, a solicitor in the property departmentat Barker Gotelee. - Credit: Archant

Many areas are designated as “conservation areas”, meaning that there are additional planning controls which need to be observed if one wishes to make external alterations to a property.

The local authority will pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. A recent case shows the potential consequences of failing to observe these rules. In the case of Hargrave House Ltd and Chaim Reiner v Highbury Corner Magistrates Court and another, a company and its managing director purchased a terraced residential property in the St John’s Grove conservation area in North London, intending to renovate and resell it.

As part of the work, render was applied to the exterior of the building and then painted. Planning permission was not sought ahead of the work and an application for retrospective planning permission was refused on the basis that the “proposed” works would have a detrimental impact on the visual appearance of the building and cause unacceptable harm to the character and appearance of the conservation area. An appeal against this refusal was also refused.

The local authority then issued an enforcement notice which required the developer to remove the render and repair any damage to the facing fabric of the building with materials to match the existing.

The developer’s own expert witness noted that “the application of the bright white paint to render is extremely regrettable on the front elevation” and it was agreed at the trial that the only suitable way to make good would be to require the removal of the render, demolish the walls and rebuilding in new/second-hand bricks.

There is a defence available to an enforcement notice which provides that it can be treated as complied with if the developer has done everything he could be expected to do to secure compliance. In this case, the notice required “repair” and the developers argued that what was required (demolition and rebuilding) went beyond repair and as such they had done everything they could reasonably be expected to do to secure compliance.

However, the court gave short shrift to this arguments and had no hesitation in dismissing the claim: the enforcement notice was valid and had to be complied with.

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•Luke Cain is a solicitor in the property department at Barker Gotelee.

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