Trent, R (On the Application Of) v Hertsmere Borough Council

A Community Infrastructure Levy liability notice must be issued and served in the prescribed sequence and within the time required by regulation 65 of the Community Infrastructure Levy Regulations 2010. The requirement to issue it “as soon as practicable” is mandatory. A delay measured in years is not compliant. A later notice cannot retrospectively cure the absence of an earlier valid notice. A demand notice issued without a valid liability notice is invalid. Although incorrect service will ordinarily invalidate a liability notice, service at an address which successfully brings the notice to the claimant may be sufficient where the defect causes no material prejudice. Judicial review relief was granted because the notices were materially non-compliant.

The claimant developed a property as a self-build home and claimed exemption from CIL. The Council later issued a liability notice dated 5 August 2019 and a demand notice dated 21 April 2020 for £16,389.75. An Inspector had previously found that the Council had not established service of an earlier 2017 liability notice and that the 2019 notice was issued too late to satisfy regulation 65(1) of the Community Infrastructure Levy Regulations 2010.

The claimant sought judicial review, arguing that the 2019 liability notice was invalid because it was late, did not comply with the prescribed form and was not correctly addressed. She also relied on Article 1 of Protocol 1 to the ECHR. The central issue was whether the Council could rely on the 2019 liability notice to support the 2020 demand notice.

1. The claim was allowed. The 2019 liability notice and the 2020 demand notice were invalid and were quashed. The Council was required to repay the £16,389.75 paid by the claimant.
2. The CIL Regulations establish a sequential scheme of notices. The liability notice is followed by the commencement notice and then the demand notice. A demand notice must identify the liability notice to which it relates and therefore presupposes a valid liability notice: R (Oval Estates (St Peter’s) Ltd) v Bath & North East Somerset Council [2020] EWHC 457 (Admin).
3. Regulation 65(1) imposes a mandatory duty to issue a liability notice as soon as practicable after planning permission first permits development. The phrase permits reasonable administrative flexibility, but the expected delay is measured in weeks or months, not years. The notice issued approximately two and a half years after permission was granted therefore breached the regulation. The Council could issue a revised liability notice only where an earlier valid notice had been issued and served.
4. The requirements in regulation 65(2)(a) and (g) were also mandatory. The notice had to use the prescribed form or its substantial equivalent and contain the required information. It should have identified and addressed Alison Trent, the owner and relevant recipient. Addressing it to “C/O Alison Trent & Co.” and identifying the business as the liable party failed to comply with those requirements.
5. The court applied the substantial-compliance and consequences approach in R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 354. However, service at the London “care of” address did successfully bring the notice to the claimant. That service defect alone was not sufficiently significant to invalidate the notice. The delay and prescribed-form defects were independently fundamental and invalidated it.
6. The Inspector’s jurisdiction in the surcharge appeal was limited and did not itself quash the liability notice. Until quashed, the notice was treated as valid under Smith v East Elloe DC [1956] AC 736. Judicial review nevertheless enabled the court to declare it invalid from the date of issue. Requiring payment on the basis of the invalid notices would also breach Article 1 of Protocol 1.

First-instance judicial review. Permission was granted by David Elvin QC, sitting as a Deputy Judge of the High Court, on 7 September 2020. The court allowed the claim and quashed the liability and demand notices.