Fox Strategic Land and Property Ltd, R (on the application of) v Chorley Borough Council & Ors

Judicial review of a Community Infrastructure Levy charging schedule is concerned with lawfulness, not the merits of the charge or the court’s preferred valuation assumptions. An examiner’s assessment involves judgment on imperfect and incomplete evidence. The court will interfere only on public-law grounds, including irrationality in the Wednesbury sense.

“Appropriate available evidence” need not be comprehensive or exhaustive. A charging authority may use a broad, area-based viability assessment with reasonable assumptions, provided the evidence informs the charge and an appropriate balance is struck between infrastructure funding and development viability. A charging schedule may lawfully remain in force while future policy costs are uncertain, where the statutory scheme permits revision and a timely review is reasonably intended.

Fox Strategic Land and Property Ltd sought judicial review of Chorley Borough Council’s residential Community Infrastructure Levy charging schedule. Preston City Council and South Ribble Borough Council were interested parties in related charging schedules, which were stayed pending this claim.

The councils had adopted a charge of £65 per square metre for dwelling-houses, excluding apartments, following an independent examination. Fox challenged the examiner’s treatment of land-value evidence, dwelling size, density and development costs. It also argued that the schedule could not lawfully extend beyond January 2016, when Policy 27 of the Central Lancashire Core Strategy required compliance with Level 6 of the Code for Sustainable Homes.

1. The claim was dismissed. The court was not hearing an appeal on the merits of the CIL charge. Its jurisdiction was confined to public-law error, and it could not substitute its own valuation or planning judgment for that of the examiner.
2. The examiner had to decide whether the charging schedules complied with the statutory scheme and whether the proposed charge struck the appropriate balance required by regulation 14 of the Community Infrastructure Levy Regulations 2010. The requirement in section 211(7A) of the Planning Act 2008 to use appropriate available evidence did not require comprehensive or exhaustive evidence. The examiner was entitled to assess imperfect evidence, weigh competing submissions and reach a broad judgment.
3. The examiner’s conclusions on land values were legally defensible. The Valuation Office Agency data and the limited evidence of local transactions provided a sufficient evidential basis when considered with the other material. The court could not resolve competing expert views or require the examiner to investigate every transaction.
4. The assumptions concerning dwelling size and density were relevant to a generic, area-based viability assessment. The examiner was entitled to conclude that, under the appraisal methodology, greater floorspace and greater CIL liability were proportionate factors. He did not treat costs on individual sites as invariably directly proportionate to dwelling size or density.
5. The current requirements of Policy 27 had been adequately reflected in the appraisals. There was no legal requirement to obtain evidence proving that the £65 charge would remain viable after the Level 6 requirement took effect. The councils’ intended review in 2015 was a reasonable response to the future uncertainty, particularly because the core strategy itself made policy requirements subject to viability. The charging schedules were therefore lawfully adopted.

This was a first-instance judicial review. The judgment records that permission was granted on three grounds by H.H.J. Pelling Q.C. on 9 October 2013. No appellate decision is stated.