Community infrastructure levy – Liability notice – Validity – Appellants seeking permission to apply for judicial review of decision of defendant local authority to issue two notices pursuant to Community Infrastructure Levy Regulations 2010 – Planning court dismissing application – Appellant appealing – Whether liability notice validly served – Whether planning inspector having jurisdiction to quash earlier notice – Whether earlier notice automatically ceasing to exist – Appeal dismissed
On 17 September 2021, the respondent local authority issued the appellants with a liability notice pursuant to the Community Infrastructure Levy Regulations 2010 (the CIL regulations) in respect of their proposed development of housing and offices on land previously used as a factory warehouse at Melton Road in Melton. The first appellant was a director of the second appellant company and owned the site before ownership passed to the second appellant.
Planning permission had been granted for the development on 7 February 2019. An appeal against an earlier liability notice issued in 2020 had been allowed and a surcharge quashed by a planning inspector.
The appellants alleged that the respondent could not lawfully serve the 2021 liability notice in accordance with regulation 65(1) of the CIL Regulations which required that a “collecting authority should issue a liability notice as soon as practicable after the day on which a planning permission first permits development”.
The Planning Court subsequently refused the appellants’ application for permission to apply for judicial review of that decision as the 2021 notice had been served some two years and seven months after the February 2019 permission and the lengthy delay did not comply with the requirement of “as soon as practicable”.
The 2020 notice was to be treated as valid until quashed by a competent court. The inspector had no jurisdiction to quash that notice which could only be quashed by a senior court. The alternative submission that the 2020 notice automatically ceased to exist by virtue of reg 65(8), when the 2021 notice was issued, was incorrect in law: [2022] EWHC 691 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) Section 31(6) of the Senior Courts Act 1981 provided that where there had been undue delay in making an application for judicial review, the court might refuse to grant leave to make the application.
CPR 54.5(1) provided that the claim form had to be filed promptly; and in any event not later than three months after the grounds to make the claim first arose. Paragraph (2) made it clear that the time limits might not be extended by agreement between the parties. The court had the power to grant an extension of time under CPR 3.1(2)(a) but it would require a good reason to do so.
In the present case, the 2020 liability notice remained in existence until it was superseded by the 2021 notice. If it was to be quashed or declared to be invalid and a nullity, that had to be done in judicial review proceedings properly brought within the relevant time limit.
Accordingly, the grounds for making the application first arose on 30 June 2020 when the 2020 liability notice was issued: R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell [1990] 2 AC 738 and R v Hammersmith and Fulham London Borough Council, ex parte Burkett [2002] UKHL 23; [2002] PLSCS 130; [2002] 1 WLR 1593 considered.
(2) Regulation 65 of the CIL Regulations provided for the issuing, revision and discharge of liability notices. The appellants sought to establish that the grounds for their claim for judicial review arose when the 2021 liability notice was issued, not the 2020 liability notice. Thus, the dispute ultimately concerned the legal status of each of those two notices and the effect they had on each other. Therefore, the court had to consider the legal status of a liability notice issued without compliance with regulation 65(1) and (3), and the meaning and effect of the expression “ceases to have effect” in regulation 65(8).
The provisions in regulation 65(1) and (3) were plainly expressed and unambiguous. The requirements they contained had in this case been breached. What mattered, however, was the legal consequence of such breach. It was trite law that, generally, a decision issued by a public authority was legally valid until quashed by the court.
(3) All official decisions were presumed to be valid until set aside or otherwise held to be invalid by a court of competent jurisdiction. Decisions were thus presumed lawful unless and until a court of competent jurisdiction declared them unlawful because the public had to be entitled to rely upon the validity of official decisions and individuals should not take the law into their own hands. Those reasons were built into the procedures of judicial review, which required an application to quash a decision to be brought within a limited time. A decision not challenged within that time, whether or not it would have been declared unlawful if challenged, and whether or not unlawful for jurisdictional error, retained legal effect: see “De Smith’s Judicial Review”, at paragraph 4-063.
On the basis of that statement of the law, it would not be right to assert that those affected by decisions made by public authorities exercising their statutory functions were generally entitled to disregard the legal consequences of such decisions, and to refrain from challenging them by the appropriate means, including, where appropriate, a timely claim for judicial review, merely because they considered the decision-making procedure to have been unlawful.
(4) The true effect of regulation 65(8) was that a revised liability notice suspended the legal effect of any earlier liability notice for the same chargeable development which had not been quashed by the court, and in doing so, superseded that earlier notice. However, the earlier notice would become effective again if the revised notice was itself quashed. A revised liability notice served under regulation 65(8) did not operate retrospectively to nullify the previous legal effect of an earlier liability notice.
The application for permission to bring a claim for judicial review was rightly refused by the judge on the grounds of delay. The claim was in substance misdirected because it challenged the 2021 liability notice and not, as should have been done at a much earlier stage, the 2020 liability notice itself. Ultimately, it was fatal to the appellants’ case that the 2020 liability notice was never the subject of a timely and successful challenge before the court, and therefore subsisted until superseded by the 2021 liability notice, which was a lawful revised liability notice under regulation 65(5).
Celina Colquhoun (instructed by Briketts LLP) appeared for the appellants; Harriet Townsend (instructed by East Suffolk Council) appeared for the respondent.
Eileen O’Grady, barrister
