R (Braithwaite and Another) v East Suffolk Council
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lord Justice Singh,Lord Justice Males |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1716 |
| Docket Number | Case No: CA-2022-000622 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1716
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Singh
and
Lord Justice Males
Case No: CA-2022-000622
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Mrs Justice Lang DBE
[2022] EWHC 691 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Celina Colquhoun (instructed by Birketts LLP) for the Appellants
Harriet Townsend (instructed by East Suffolk Council) for the Respondent
Hearing date: 8 November 2022
Approved Judgment
This judgment was handed down remotely at not before 4pm on Wednesday 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Keith Lindblom (Senior President of Tribunals), Lord Justice Singh and
Introduction
In this appeal we must consider the effect of a “revised liability notice” for Community Infrastructure Levy (“CIL”) upon an earlier liability notice relating to a housing and office development for which planning permission had been granted under section 73 of the Town and Country Planning Act 1990. Liability for CIL had been formally assumed by the developer at an earlier stage of the planning history of the site before modest changes to the scheme, which required an application under section 73, were made. It is agreed that the earlier liability notice did not comply with the requirements in the CIL legislation, because it was not served “as soon as practicable after the day on which a planning permission first permits development”, as was required by regulation 65(1) of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”), and also because it was not served on the “relevant person” for the purposes of regulation 65(3)(a).
With permission to appeal granted by Lord Justice Lewison, the appellants, George Braithwaite and Melton Meadows Properties Ltd. (“the company”), appeal against the order of Mrs Justice Lang, dated 28 March 2022, by which she refused their renewed application for permission to apply for judicial review of the decision of the respondent, East Suffolk Council (“the council”), on 17 September 2021 to issue a liability notice (“the 2021 liability notice”) and a demand notice for CIL payable on the appellants' proposed development of housing and offices on land previously used as a factory warehouse at Melton Road in Melton. Mr Braithwaite is a director of the company, and was the owner of the site before ownership passed to the company.
Permission to apply for judicial review was initially refused on the papers by Mr Justice Jay. He concluded that the grounds for the claim had first arisen when an earlier liability notice had been issued and served, on 30 June 2020 (“the 2020 liability notice”), that the claim was therefore late, and that no proper grounds had been given for the delay. Mrs Justice Lang was of the same view, but also concluded that the claim was, in substance, ill-founded. She refused permission for both reasons.
The issues in the appeal
The appeal to this court was pursued on the same grounds as the claim itself, which were, in essence these: first, that the 2021 liability notice was not a revised liability notice under regulation 65(5), which it did not describe itself as being, but a liability notice served two years and seven months after the relevant planning permission was granted, and in breach of regulation 65(1) because the 2020 liability notice was not itself a valid foundation for it, being a “nullity” as a consequence of defects in its issuing; and second, that in any event the effect of regulation 65(8) was to render the 2020 liability notice ineffective when the 2021 liability notice was issued, so that the grounds for challenge arose only at that stage. Four main issues arise for us to determine: first, whether, as was held in the court below, permission to apply for judicial review ought to be refused because of the appellants' delay in challenging the 2020 liability notice; secondly, the practical effect in this case of the provisions for the service of a revised liability notice under regulation 65 of the CIL Regulations; thirdly, the status of the 2020 liability notice; and fourthly, the status of the 2021 liability notice.
As we shall go on to explain, although this is, in form, a claim for judicial review of the 2021 liability notice, it is the 2020 liability notice that ought to have been the real target of proceedings.
The legislative framework and relevant case law
CIL was introduced by the Planning Act 2008. Its purpose, set out in section 205(2) as amended by section 115(2) of the Localism Act 2011, “is to ensure that costs incurred in supporting the development of an area can be funded (wholly or partly) by owners or developers of land in a way that does not make development of the area economically unviable”. Section 205(1) authorises the Secretary of State to make regulations providing for its imposition.
Section 208 of the 2008 Act provides for a person to “assume liability to pay the levy” where liability would arise in respect of a proposed development. Such an assumption of liability may be made before development commences. When that occurs, the person who has assumed liability becomes liable to pay the levy when development is commenced in reliance on planning permission. Section 208(4) provides that regulations must make provision for an owner or developer of land to be liable where development is commenced in reliance on planning permission if nobody has assumed liability. Regulation 7 of the CIL Regulations provides that development is to be treated as commencing on the earliest date on which any material operation begins to be carried out on the relevant land.
Although there is no obligation on the owner of land for which planning permission has been granted to assume liability pursuant to section 208 of the 2008 Act, regulation 31 sets out the procedure to be followed when a person wishes to do so. Regulation 33 applies to determine who will be liable to pay CIL where development is commenced without anybody having assumed such liability.
Regulation 65 is the key provision so far as the present appeal is concerned. It provides for the issuing of liability notices to the person liable for CIL by the collecting authority. So far as relevant, it provides as follows:
“(1) The collecting authority must issue a liability notice as soon as practicable after the day on which a planning permission first permits development.
…
(3) The collecting authority must serve the liability notice on –
(a) the relevant person;
(b) if a person has assumed liability to pay CIL in respect of the chargeable development, that person; and
(c) each person known to the authority as an owner of the relevant land.
(4) The collecting authority must issue a revised liability notice in respect of a chargeable development if –
(a) the chargeable amount or any of the particulars mentioned in paragraph 2(e) or (f) change (whether on appeal or otherwise); or
(b) the charging authority issue a new instalment policy which changes the instalment arrangements which relate to the chargeable development.
(5) The collecting authority may at any time issue a revised liability notice in respect of a chargeable development.
(6) A liability notice issued in accordance with paragraph ( 4) or (5) must be served in accordance with paragraph (3).
(7) A collecting authority may withdraw a liability notice issued by it by giving notice to that effect in writing to the persons on whom it was served.
(8) Where a collecting authority issues a liability notice any earlier liability notice issued by it in respect of the same chargeable development ceases to have effect.
…
(12) In this regulation ‘relevant person’ means –
…
(c) in all other cases, the person who applied for planning permission.”
At this stage we draw attention to the fact that the issue of a liability notice “as soon as practicable” after the day on which a planning permission first permits development is mandatory, but regulation 65 does not indicate what the consequence is if a liability notice is only issued at some later time. Further, there is no time limit for the issue of a revised liability notice, which may be issued “at any time”.
Regulation 66 provides that the chargeable amount payable in respect of a chargeable development is a local land charge.
Regulation 67 provides for a commencement notice to be submitted to the collecting authority no later than the day before the day on which development is to be commenced. The commencement notice is required, among other things, to “identify the liability notice issued in respect of the chargeable development”. The regulation therefore assumes that a liability notice has been issued. Regulation 68, however, provides for the collecting authority to determine the date on which development was commenced (“the deemed commencement date”) if it has not received a commencement notice but has reason to believe that development has been commenced.
Regulation 69 provides for service of a demand notice on each person liable to pay CIL. The demand notice must, among other things, “identify the liability notice to which it relates” and “state the intended commencement date or, where the collecting authority has determined a deemed commencement date, the deemed commencement date”. Accordingly the CIL Regulations proceed on the basis that the making of a demand for payment requires a liability notice to have been issued.
The CIL Regulations also provide for the imposition of surcharges and for late payment interest if payment of CIL is not made when it is due....
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...or whether time should be extended to bring the claim: see R (Braithwaite and Melton Meadows Properties Ltd) v East Suffolk Council [2022] EWCA Civ 1716, at 136 The reasons why there are these strict time limits in judicial review proceedings are well known. The competing interests involve......