Oval Estates (St Peter's) Ltd, R (On the Application Of) v Bath & North East Somerset Council

Where a person has assumed liability for Community Infrastructure Levy, liability arises when the chargeable development commences. It is assessed by reference to the planning permission then in force. A later non-material amendment does not retrospectively alter accrued liability.

A phased planning permission must expressly provide for development to be carried out in phases. A proposed phasing plan or section 106 agreement will not suffice without operative provision in the permission. Judicial review is ordinarily a remedy of last resort where statutory review and appeal rights exist, although exceptional circumstances may justify proceeding directly to judicial review.

Oval challenged liability and demand notices issued by Bath and North East Somerset Council under the Community Infrastructure Levy Regulations 2010. The notices required payment of £874,283.78 concerning a development at Radstock.

Oval argued that its planning permission was phased, so that liability arose only for commenced phases. It also argued that the relevant permission was the permission as amended under section 96A of the Town and Country Planning Act 1990, or alternatively that liability was determined when the Liability Notice was issued. The court also considered whether statutory review and appeal procedures provided an alternative remedy.

1. The claim was dismissed on the merits. Oval had assumed liability under regulation 31 of the Community Infrastructure Levy Regulations 2010. Its liability arose when development commenced, no later than 15 October 2018. At that date the operative planning permission was the March 2016 permission, which was not a phased planning permission.
2. A phased planning permission is one which expressly provides for development to be carried out in phases. The March 2016 permission did not incorporate the section 106 agreement as part of the permission, and the agreement contained no operative requirement that development proceed in phases. The phasing plan included in the later Reserved Matters Decision was described as proposed and did not establish that the permission was phased from the outset.
3. The section 96A amendment made in February 2019 changed the planning permission by adding a phasing plan. The fact that the amendment was non-material for the purposes of the Town and Country Planning Act 1990 did not mean that no change had occurred, or that the amendment retrospectively altered liability which had already arisen.
4. Regulation 9 made special provision for permissions granted under section 73 of the Town and Country Planning Act 1990. It contained no equivalent rule for section 96A amendments. No special rule therefore displaced the ordinary effect of regulation 31.
5. The Liability Notice did not trigger liability. Its function was to identify the liability that would arise. The operative event was commencement under regulation 31(3). The sequence of Liability, Commencement and Demand Notices confirmed that conclusion.
6. The statutory review and appeal procedures under regulations 113 and 114 would ordinarily be the appropriate route for challenging a calculation of CIL, and judicial review should generally follow their exhaustion. In this case, however, the Council’s substantial delay in issuing the Liability Notice, together with Oval’s financial circumstances and the resulting loss of its appeal right on commencement, justified allowing the judicial review claim to proceed. That procedural conclusion did not affect the dismissal on the merits.