Fibreglass Sharks, Common Sense and Planning Permission
February 15, 2018
A property-owner’s rights to use their property as they choose are qualified by common law obligations and by statutory schemes such as the planning, public health and environmental protection acts. Where a breach is alleged the onus will typically be on the decision-maker to identify an appropriate standard of amenity as the basis for an objective assessment of the effects and any necessary remedial steps. An enforcement officer considering whether as a matter of discretion to exercise statutory powers will likely be faced with a similar duty. Where the issue is primarily one of aesthetic judgment, a truly objective assessment which permits architectural innovation and artistic self-expression whilst maintaining a satisfactory standard of amenity in the public interest can be more easily said than done.
In the 1980s there was a heated controversy over what was to become of a site known as No 1 Poultry which at the time was occupied by a Victorian building which had been used for many years by Mappin and Webb. In the 1960s the notable modernist architect Mies van der Rohe had designed a new building for the site which had not been taken forward at the time. When a would-be developer attempted to revive the project permission was given to demolish the Mappin and Webb building following a public inquiry on the grounds that the replacement by van der Rohe “might” be a masterpiece. That view was not universally held: others compared it to a carbuncle. New architects were appointed and a different scheme was ultimately implemented. It is now a Grade II* listed building.
At around the same time a different controversy was underway in Oxford, where on Saturday 9 August 1986 what has come to be known as the ‘Headington Shark’ landed on (or perhaps more accurately in) the roof of a modest terraced house at 2 New High Street. ‘Untitled 1986’ (its proper name) was apparently intended to “express someone feeling totally impotent and ripping a hole in their roof out of a sense of impotence and anger and desperation…. It is saying something about CND, nuclear power, Chernobyl and Nagasaki.” Be that as it may, it was immediately clear to the local planning authority that the erection of a life-sized fibreglass model of a shark on a building was development for the purposes of the Town and Country Planning Act 1971 and that planning permission was therefore required. In due course enforcement action was taken and it fell to a planning inspector to make recommendations to the Secretary of State (one Michael Heseltine) on whether or not planning permission ought to be granted.
From the inspector’s report it would seem that opinion was divided on the merits of the Shark as public art and on the effects on the amenity of the surrounding neighbourhood. Evidently the local planning authority was also concerned that there should be no precedent set by granting planning permission for such a distinctive development, since there was a surprising number of proposals for novel building projects and art installations being promoted elsewhere in the city at the time.
The inspector grappled with how to identify the public interest in such circumstances: he was presented with the evidence of conflicting opinion polls for example, before concluding:
“It is not in dispute that this is a large and prominent feature. That was the intention, but the intention of the appellant and the artist is not an issue as far as planning permission is concerned. The case should be decided on its planning merits, not by resorting to “utilitarianism”, in the sense of the greatest good to the greatest number. And it is necessary to consider the relationship between the shark and its setting…. In this case it is not in dispute that the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them. The basic facts are there for almost all to see. Into this archetypal urban setting crashes (almost literally) the shark. The contrast is deliberate … and, in this sense, the work is quite specific to its setting. As a “work of art” the sculpture (“Untitled 1986”) would be “read” quite differently in, say, an art gallery or on another site. An incongruous object can become accepted as a landmark after a time, becoming well known, even well loved in the process. Something of this sort seems to have happened, for many people, to the so-called “Oxford shark”. The Council is understandably concerned about precedent here. The first concern is simple: proliferation with sharks (and Heaven knows what else) crashing through roofs all over the City. This fear is exaggerated. In the five years since the shark was erected, no other examples have occurred. Only very recently has there been a proposal for twin baby sharks in the Iffley Road. But any system of control must make some small place for the dynamic, the unexpected, the downright quirky. I therefore recommend that the Headington shark be allowed to remain.”
The Secretary of State took a slightly different view:
“It is not in dispute that the shark is a large and prominent feature in the street scene. That was the intention of the appellant and the artist, but their intention to shock people is irrelevant as far as planning issues are concerned. The issue for consideration in this appeal is whether this incongruity and lack of harmony amount to demonstrable harm to an interest of acknowledged importance, namely the visual amenity of the house and the street scene generally…In the Secretary of State’s view, even though the shark is large, prominent and out of character with both the appeal building and its surroundings, it is not gravely detrimental to visual amenity in this particular location.”
“…the greater public acceptance of the shark that has occurred over time should not, in itself, be a reason to allow the shark to remain. While relevant views expressed by third parties, by local residents and other neighbouring occupiers of land should be taken into account, the case must be decided on its planning merits, not by resorting to “utilitarianism” in the sense of the greatest good to the greatest number as suggested by the inspector.”
Overall the Secretary of State concluded that:
“…the shark does not cause such demonstrable harm to visual amenity as to justify refusing consent for its retention.”
The shark was therefore granted permission to remain and at the end of 2017 it was nominated to be included in the local planning authority’s register of heritage assets – a first step, perhaps, to joining No 1 Poultry on the statutory list of buildings of architectural or historic interest in due course. We shall see.
The difficulties which the decision maker faced in deciding by what standard to judge the shark may be contrasted with the more recent case of the so-called ‘stripey house.’ In that case the owner of a modest mews property in Kensington, who at the time was locked in a planning dispute with the local planning authority and her neighbour over its redevelopment for residential purposes, decided to repaint the street façade in red and white vertical stripes. Her actions attracted considerable attention with calls from some quarters for some form of enforcement by the local planning authority. However, whilst painting a building is development for the purposes of planning legislation (or at least it is where it involves a material change in the external appearance) by virtue of Class C of Part Two of the Schedule to the Town and Country Planning (General Permitted Development)(England) Order 2015 painting the exterior of any building is permitted development, i.e. if planning permission is required it is granted by the Order. Furthermore “painting” extends to “any application of colour”. Whilst a local planning authority may withdraw permitted development rights by making an order under Article 4 of the Order, it had not done so in this case. Conventional planning enforcement action was therefore not an option.
The local planning authority elected instead to serve the owner with a notice under Section 215 of the Town and Country Planning Act 1990 requiring her to repaint the street façade in white paint (and also to carry out some minor repairs to the joinery). Section 215 appears in the part of the Act devoted to what are termed ‘special controls’ in the chapter entitled ‘land adversely affecting amenity of neighbourhood’ under the heading ‘power to require proper maintenance of land’ and empowers a local planning authority to serve notice under the section on the owner or occupier of any land where it appears to the authority that “the amenity of a part of their area…is adversely affected by the condition of [the land]” to require “such steps for remedying the condition of the land” as may be specified in the notice. By virtue of Section 216 an owner or occupier who fails to comply with a notice is guilty of a criminal office and liable on summary conviction to be fined. Section 217 permits an owner or occupier served with a notice to appeal against it to the magistrates (in England) on statutory grounds including that the condition of the land does not adversely affect the amenity of the area as alleged and/or that if it does it is as a result “in the ordinary course of events” of carrying out operations not in contravention of the Act and/or that the requirements of the notice are excessive. Section 218 permits a further appeal to the Crown Court.
The owner conceded that repainting the property affected its external appearance but argued that on an objective assessment it did not adversely affect the amenity of the area and, if it did, it was only because she had done what she was entitled to do by virtue of the general consent in Class C of the Order and that there was no breach of planning control as a result: the planning scheme was a comprehensive code and could not give with one hand but take away with the other.
Those arguments gained no traction in the magistrates court which held that whether or not there was an adverse effect on amenity was the important question, the answer to which was to be found by applying common sense in the surrounding circumstances. Much the same decision was reached in the Crown Court. It was only when the case came before the Administrative Court in a rolled up hearing of the owner’s application for permission for judicial review of the Crown Court’s decision to refuse to state a case to the High Court that the scope of Section 215 and its relationship to the remainder of the scheme of planning control was comprehensively examined.
In R(oao Zipporah Lisle-Mainwaring) v RB Kensington and Chelsea  EWHC 904 (Admin) Gilbart J held as follows:
“Given the fact that Class C2 permits painting in any colour, it is very hard to see
how a choice of colour other than white, or a colour scheme involving more than
one colour, can fall outside the ordinary course of events. That is to strain the
purport of s 217 (1)(b) to the ultimate. One of the reasons for that is that it is
contrary to a coherent application of the Planning Acts to be able to prevent by one
method that which is expressly permitted by another, save for those cases where
compensation is payable.”
The court noted that the local planning authority had powers under Article 4 of the Order to withdraw permitted development rights on payment of compensation but had not exercised them, adding:
“The problems which this s 215 Notice raises can be gauged from its requirements. It compels the landowner to have a white frontage, even though on the day after the building had been painted, the landowner could paint it in another colour pursuant to Class C2.”
In short the local planning authority’s attempt to impose its own aesthetic preferences upon the owner was not consistent with general permission in Class C of the Order which it had not taken any steps to withdraw or modify.
The notice was quashed.