The Court of Appeal has provided some helpful CIL clarity (and upheld a hefty CIL charge of over £900k) in the case of R (Braithwaite) v East Suffolk Council [2022] EWCA Civ 1716. The case confirms the importance of the strict timeframes for filing a judicial review challenge, and the need to challenge any CIL notice promptly.
The Judgment is about CIL, but applies and restates some fundamental principles of wider relevance to planning:
- That public law decisions generally remain ‘alive’ until overturned in the Courts;
- That procedural failings usually need to be accompanied by prejudice (and be considered with the wider public interest in the outcome)
- That not taking legal advice at the right time is rarely an excuse for delay.
Background
The Appellant (Braithwaite and Melton Meadows Properties Limited) was refused permission to apply for judicial review in respect of a CIL liability notice, and appealed the refusal to the Court of Appeal. The facts were:
- The Council granted a s.73 permission in February 2019 but did not issue an updated CIL Liability Notice until June 2020 (“the 2020 liability notice”). The Appellant accepted the Council’s offer of an instalment plan, but failed to pay the first instalment, resulting in the Council issuing a revised demand notice with a late payment surcharge.
- The Appellant appealed the surcharge; the Inspector allowed the appeal as the 2020 liability notice had been incorrectly addressed and therefore not served on the ‘relevant person’ in accordance with Regulation 65(3)(a), and was not served ‘as soon as practicable’.
- The Council issued a new liability notice in September 2021 (“the 2021 liability notice”) requiring immediate payment of the balance of the CIL due.
- The Appellant brought a claim for judicial review on the grounds that the 2021 notice could not be a valid ‘revised’ liability notice because (a) the 2020 notice was served too late and so (applying [Trent]) was unlawful, so providing no base liability notice on which the revised notice could sit (b) the Inspectors surcharge Council had not lawfully served the 2021 liability notice, as regulation 65(1) required the Council to issue a liability notice “as soon as practicable after the day on which a planning permission first permits development.”
- The Appellant lodged the claim in relation to the 2021 notice but following the 2021 notice nearly 18 months after the 2020 liability notice was issued. The High Court held there was no good reason to extend the 3-month time frame as the Appellant had accepted the instalment plan and thus waived any claim they had in relation to the delay.
Impact of delay
JR claims must be made promptly and no less than 3 months after the ‘grounds first arose’. The Appellant filed its claim within 3 months of the 2021 notice, but the Court held that:
- the clear target of the case was the 2020 liability notice;
- there would be detriment to good administration if permission to bring the claim out of time were granted (for the purposes of s.31(6) Senior Courts Act 1981, which applies where there has been ‘undue delay’). As a commercial developer, that had assumed liability in 2018, it knew it would be liable for a large amount of CIL. There would be detriment to good administration if the 2020 liability notice were to be held to be void from the outset so long after it was issued (resulting in no further notice being able to be served) as inhabitants in the council’s area were entitled to expect the Levy would be paid.
Revised Liability Notices – extinguishment or suspension?
The Appellant argued the grounds for claim arose when the 2021 liability notice was issued, and the 2020 liability notice was a nullity (void from the outset) or superseded by the 2021 notice. The Court held that:
- breaches of procedural requirements for service of the notice (promptly and on the right people) did not mean the 2020 liability notice was void (despite the Inspector’s conclusions on the procedural flaws and the Trent decision);
- the issue of the 2021 liability notice superseded and suspended the legal effect of the 2020 liability notice; however, the 2020 liability notice would have become effective again if the 2021 liability notice had been quashed, as a revised liability notice does not operate retrospectively to nullify the legal effect of an earlier liability notice;
- that the Inspector’s quashing of the surcharge on the grounds of the procedural flaws of the 2020 liability notice could not affect its lawfulness.
Void or Voidable?
The Judgment points out that public law decisions (such as the 2020 notice) remain in existence until quashed by the courts, even where (as here) another decision-maker has acknowledged its flaws. No formal challenge was ever made to the 2020 liability notice and the purpose of the claim was held to be to attack it through the back door. Breaches of the CIL regime will not necessarily relieve the developer of its liability for CIL; the court has a discretionary decision to quash notices when a timely legal challenge is brought and the judgment makes clear that prejudice needs to be shown.
The Court drew a distinction with the case of Trent; in Trent, the liability notice was attached to an email that was never dispatched, where-as in this case the liability notice was served on the company, rather than the individual.
Balance of risk
The position in Trent (that a liability notice may be quashed where served too late) remains unimpeached but narrowed back to its facts – prejudice will need to be shown; it is not a route for a windfall. The judgment is absolutely clear that there is no excuse for refusing to produce a Liability Notice but developers who do not receive timely notice will need to be careful about letting sleeping dogs lie – they will risk losing the ability to challenge errors and stack up late payment charges.
