Braithwaite and Melton Meadows Properties Limited, R (on the application of) v East Suffolk Council

The Court of Appeal held that a liability notice issued late in breach of regulation 65(1) and served on the wrong person under regulation 65(3) is not automatically a nullity; it remains an extant notice until quashed by a court or superseded by a revised liability notice under regulation 65(5). The court construed regulation 65(8) as suspending and superseding the effect of an earlier liability notice when a revised notice is issued, but not operating retrospectively to erase the earlier notice from the time it was originally issued.

Applying the statutory scheme (including regulations 65, 66, 67, 68, 69 and 117 of the Community Infrastructure Levy Regulations 2010) and the ordinary public law rule that administrative decisions remain valid until set aside, the court concluded that the true target for challenge was the earlier (2020) liability notice. Because the appellants did not bring a timely judicial review challenge to that notice, permission was rightly refused below and the appeal was dismissed.

Background and parties: The appellants (Mr Braithwaite and a company of which he is a director) proposed housing and office development and had been notified that Community Infrastructure Levy (CIL) would be payable. Two liability notices were relevant: one issued on 30 June 2020 (the 2020 liability notice) and a later notice issued on 17 September 2021 (the 2021 liability notice). The collecting authority was East Suffolk Council. The appellants sought permission for judicial review of the 2021 liability notice.

Procedural posture: The claim challenged the 2021 notices before the High Court (Mrs Justice Lang), which refused renewed permission for judicial review on the grounds of delay and on substantive grounds. The appellants appealed to the Court of Appeal. Permission to appeal had been granted below by Lewison LJ.

Nature of the application and relief sought: The application was for permission to apply for judicial review of the council's decision to issue a liability notice and demand notice dated 17 September 2021. The appellants contended that the 2021 notice was not a valid revised liability notice under regulation 65(5) because the 2020 notice was invalid and/or that regulation 65(8) had the effect of rendering the 2020 notice ineffective only when the 2021 notice was issued.

Issues framed: The principal issues were (i) whether permission should be refused because of undue delay in challenging the 2020 liability notice, (ii) the proper construction and practical effect of regulation 65 of the CIL Regulations (in particular paragraphs (1), (3), (5) and (8)), (iii) whether the 2020 liability notice was a nullity, and (iv) the status of the 2021 liability notice.

Court’s reasoning: The court reiterated the public law principle that administrative decisions are presumed valid until quashed. It held that regulation 65(1) and (3) are mandatory but that non-compliance does not in every case render a notice a nullity. A revised liability notice may be issued “at any time” under regulation 65(5) to correct or supersede an earlier extant notice, and regulation 65(8) causes any earlier notice to "cease to have effect" when a later notice is issued; this does not retrospectively erase the earlier notice from the moment of its original issue. The inspector’s decision under regulation 117 quashing a surcharge could not substitute for judicial review to quash a liability notice. The court concluded the grounds for challenge arose when the 2020 notice was issued (30 June 2020) and that the appellants had not brought timely judicial review of that notice; consequently permission to challenge the 2021 notice was rightly refused for undue delay. The appeal was dismissed.

Wider context: The court noted the importance of the liability notice in the sequential CIL scheme and that, while the statutory time requirement to issue a liability notice is mandatory, the legislative scheme presumes finality unless and until a competent court invalidates an administrative act. The decision emphasises the need to bring prompt challenges to alleged defects in CIL liability notices.

Appeal dismissed. The Court of Appeal held that the 2020 liability notice was not a nullity but remained an extant notice liable to be quashed by timely judicial review or to be superseded by a revised liability notice under regulation 65(5). Regulation 65(8) suspends and supersedes, but does not retrospectively erase, the legal effect of an earlier liability notice. Because the grounds to challenge the 2020 notice arose on issue of that notice and no timely judicial review was brought, permission was correctly refused below and the appeal was dismissed.

Appeal from the High Court of Justice, King's Bench Division, Planning Court (Mrs Justice Lang) [2022] EWHC 691 (Admin). Permission to appeal was granted by Lewison LJ. The Court of Appeal (Lindblom SP, Singh LJ and Males LJ) heard the appeal and dismissed it on 21 December 2022 ([2022] EWCA Civ 1716).