Shropshire Council, R (On the Application Of) v The Secretary of State for Communities and Local Government

A notice is not a commencement notice for Community Infrastructure Levy purposes unless it complies with the requirements of the Community Infrastructure Levy Regulations 2010. Where the statutory scheme defines a commencement notice as a notice submitted under a specified regulation, an informal communication which omits mandatory particulars cannot qualify through substantial compliance or by fulfilling the apparent purpose of the notice.

The court must first interpret the legislation and determine the consequence of non-compliance. The more flexible approach to statutory requirements arises only where the regulated act has actually been undertaken. A successful appeal correcting a deemed commencement date does not remove liability for CIL or a surcharge arising from commencement without a valid notice.

Mr Lee Jones obtained permission to construct a dwelling and received a self-build CIL exemption. Before works began, he emailed a council officer about a payment due under a planning agreement and stated that site clearance would begin the following day. The email did not use the prescribed commencement-notice form and omitted required particulars.

The Council issued demand notices for CIL and a surcharge on the basis that development had commenced without a valid commencement notice. On appeal, the Inspector held that the email was, in substance, a commencement notice and allowed appeals under regulations 117 and 118 of the Community Infrastructure Levy Regulations 2010. The Secretary of State conceded the Council’s judicial review claim, but Mr Jones resisted it. The central issues were whether the email could qualify as a commencement notice and what followed from the corrected deemed commencement date.

1. The claim succeeded. The Inspector’s decision under regulation 117 was quashed. The decision under regulation 118 remained in force, requiring new demand notices based on 11 July 2015.
2. Regulation 2 defines a commencement notice as a notice submitted under regulation 67. Regulation 67 imposes requirements as to timing, form, identification of the liability notice, intended commencement date and other particulars. On the ordinary meaning of those provisions, a communication that does not comply with regulation 67 is not a commencement notice for the purposes of the Regulations. The definition and regulation 67(3), requiring service on known owners, confirmed that the notice must contain the prescribed material. R (Winchester College and another) v Hampshire County Council [2008] EWCA Civ 431 was binding and applied.
3. The flexible approach to non-compliance discussed in R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354 and London & Clydesdale Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 was logically anterior to the question whether a commencement notice had been submitted at all. It did not permit the court or Inspector simply to treat an act fulfilling the apparent purpose of the Regulations as compliance.
4. The email was incapable of being a commencement notice. The Inspector therefore erred in allowing the regulation 117 appeal. The loss of the self-build exemption followed from failure to submit a notice under regulation 67 before commencement.
5. The regulation 118 appeal concerned only the correct deemed commencement date. It did not extinguish CIL liability or the surcharge. If development began without a commencement notice, the amount was payable from 11 July 2015, and new demand notices were required.
6. Relief was not withheld. The requirements and forms were available, there was no waiver, and the discretionary nature of penalties did not make the imposition of CIL discretionary.

The proceedings were a judicial review of the Inspector’s decision dated 8 August 2017. The Secretary of State conceded the claim. The High Court nevertheless determined the legal issues and quashed the regulation 117 decision.