Shedding light in some of CIL’s dark corners

R (Braithwaite) v East Suffolk Council [2022] EWCA Civ 1716 (judgment 21/12/22)
22 Dec 2022

Planning and Environment

By Harriet Townsend, Cornerstone Barristers

On the darkest day of the year, the Court of Appeal has shed light in some of CIL’s darkest corners. Two of the several CIL questions raised by Braithwaite are

  1. What happens if a collecting authority fails to issue a regulation 65 liability notice “as soon as practicable” after the day on which planning permission first permits development – what is the status of a liability notice that is issued and served in breach of this requirement? The Appellant argued it was void and could be ignored; and
  2. Does this change at all if a surcharge for non payment is then imposed, and the subsequent regulation 117 appeal is allowed, the Inspector in that appeal expressing views about the validity of the underlying liability notice? The Appellant argued that the decision of the Inspector could not be ignored and reinforced the argument that the liability notice was void.

Of greater interest perhaps to practitioners more generally – and the first/most obvious reason the claim failed – is the court’s reminder that judicial review must be brought promptly and within three months of the date on which the grounds for the claim first arose [CPR 54.5(1)]. The court will look behind the notice or decision nominally the subject of the challenge to the substance of the claim, and I expect §§44-63 of the judgment to be useful not only as a reminder of the rule, but also of its decisive effect when it is not followed. Note too the relationship between the rule and s.31(6) of the Senior Courts Act 1981.

The Appellants’ case relied heavily on the outcome of the case R (Trent) v Hertsmere Borough Council [2021] EWHC 907 (Admin), but the different outcomes reflect only how fact dependent such challenges are. Indeed, the facts of Braithwaite are so involved, and so well summarised in the judgment, that I have not tried to summarise them here. I would also emphasise that the Court of Appeal has declined to give the Appellant permission for judicial review: it has held the several grounds / avenues of attack advanced by the Appellants to be unarguable. So, these are not difficult questions of law, but they have some importance given the key role played by the liability notice in the recovery of CIL.

In Braithwaite there’s about £900,000 at stake, and now several years overdue. The collecting authority East Suffolk Council, which I had the privilege of representing in these proceedings, will now be considering its options for enforcement action.

 

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