Town and country planning – Community infrastructure levy – Phased planning permission – Claimant developer applying for judicial review of liability notices issued by defendant local authority in respect of community infrastructure levy (CIL) on claimant’s development – Whether notices wrongly charging levy on whole development rather than first phase – Whether development carried out pursuant to phased planning permission – Whether claimant failing to pursue suitable alternative remedy – Application dismissed
In 2016, the defendant local authority granted the claimant outline planning permission for a development at Parcel 6781 Cobblers Way, Westfield, Radstock, Somerset, reserving various matters for subsequent approval. The development was to be carried out in accordance with a list of plans, none of which referred to any proposed phasing of the development. The permission was accompanied by a planning agreement under section 106 of the Town and Country Planning Act 1990.
When the reserved matters were approved in April 2017, the plans list included a “proposed” plan with three phases of development. The claimant then completed an assumption of liability notice, pursuant to regulation 31 of the Community Infrastructure Levy Regulations 2010, in respect of its liability to pay community infrastructure levy (CIL) on the development. The claimant subsequently applied under section 96A of the 1990 Act for a non-material change to the March 2016 planning permission showing phased development.
Responding to a request for further information, the claimant asserted that the development was a phased development, under regulation 2(1) of the 2010 Regulations, for the purposes of CIL. The defendant disputed that assertion and issued a liability notice under regulation 65 of the 2010 Regulations and a demand notice pursuant to regulation 69. Both notices were dated 28 May 2019. The notices were to the effect that the claimant was liable to pay £874,283.78 by way of CIL.
The claimant applied for judicial review challenging the lawfulness of the notices. The issue was whether the claimant’s liability to pay CIL was to be assessed on the basis that the development was taking place pursuant to a phased planning permission. If the development was phased, the claimant was not yet liable to pay all the CIL claimed by the defendant but only that part relating to the phases of the development that had been commenced.
Held: The application was dismissed.
(1) By the assumption of liability form completed in April 2017, the claimant had assumed liability for payment of CIL. Having assumed liability, the effect of regulation 31 was that when works commenced on 15 October 2018 the claimant became liable to pay CIL in respect of the whole development. At that date, the chargeable development was the development permitted by the March 2016 planning permission, which was not a phased planning permission. A non-material change to the planning permission, subsequently authorised by the defendant in February 2019, months after the commencement of work, did not alter the position. The section 106 agreement did not alter that position since the planning permission stated only that it was “accompanied by” such an agreement; not that it was part of the planning permission. In any event, the section 106 agreement did not require the development to be carried out in phases and did not provide that the planning permission was a phased planning permission.
The fact that the proposed plan appeared in the plans list in the reserved matters decision was not evidence that the planning permission was by then phased planning permission, let alone that it had been a phased planning permission since 2016. Furthermore, the non-material change to the planning permission to add a plan showing phased development did not change the nature of the development for CIL purposes.
There was no special rule for identifying the chargeable development in cases where a change had been made under section 96A of the 1990 Act. Where liability to CIL had already arisen when the development commenced, as a result of regulation 31(3), the liability neither ceased to exist nor was modified by the defendant’s decision to allow the non-material change. Since the liability to CIL was triggered by the commencement of development, that was the date on which liability to pay the chargeable amount of CIL arose; at that date, the planning permission pursuant to which the development was undertaken was not a phased planning permission.
(2) Pursuant to regulation 114(3) of the 2010 Regulations, the claimant’s right of appeal was lost when the claimant commenced development on 15 October 2018. However, that did not necessarily mean the claimant was free to pursue a claim for judicial review that would otherwise have not been available to him; it would depend on the facts of the case.
The general position was that applications for judicial review would only be made after the statutory routes of challenge had been exhausted. The bespoke rights of action in the 2010 Regulations ought to be the first port of call. In the overwhelming majority of cases any attempt to pursue applications for judicial review without first following those routes ought to fail.
However, in the present case, the circumstances excused the claimant’s failure to pursue its statutory rights of appeal. The defendant had failed to serve a liability notice at the time anticipated by regulation 65(1), which required a collecting authority to issue a liability notice as soon as practicable after the day on which a planning permission first permitted development. In this case, the relevant date was 7 April 2017, the date of the reserved matters decision. The claimant had not completed the assumption of liability form until August 2017 but, after that date, there was no reason why the defendant could not issue a liability notice. It failed to do so until April 2019.
By October 2018, the claimant had no option but to commence work if it was to retain funding for the development and the rights of review and appeal under the 2010 Regulations were lost. The scheme of the 2010 Regulations assumed that the collecting authority would take control when it came to deciding what was payable as CIL and by whom. The responsibility for issuing liability notices was a significant part of the collection process. In this case, there was no reason that prevented the defendant from issuing a liability notice. Given that failure, it was not appropriate to bar the claimant from pursuing its claim for judicial review.
Timothy Leader (instructed by Temple Bright Solicitors of Bristol) appeared for the claimant; Daniel Stedman Jones (instructed by Bath & North East Somerset Council) appeared for the defendant.
Eileen O’Grady, barrister