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

A liability notice issued in breach of mandatory CIL timing or service requirements is not automatically a nullity. It remains legally effective unless quashed by a competent court, and any challenge must be brought promptly by judicial review. A collecting authority may issue a revised notice at any time under regulation 65(5), superseding an earlier extant notice. That power does not cure the original breach, but regulation 65(8) operates prospectively and does not retrospectively erase the earlier notice. A later notice may be treated as revised by its purpose and effect even if it is not labelled as such. Where the true challenge is to the earlier notice, time runs from its issue. Delay and the absence of a realistic remedy justified refusal of permission.

The appellants challenged East Suffolk Council’s 2021 CIL liability and demand notices concerning development authorised by a section 73 planning permission. An earlier 2020 liability notice had been issued about 16 months after the relevant permission and served on the company rather than Mr Braithwaite, the applicant. The appellants did not bring judicial review proceedings against that notice in time. After an inspector quashed a surcharge, the Council issued the 2021 notice to both appellants, treating it as a revised notice under the Community Infrastructure Levy Regulations 2010.

Mrs Justice Lang refused renewed permission for judicial review in [2022] EWHC 691 (Admin), principally because the challenge was directed at the 2021 notice rather than the earlier notice and was out of time. The appeal concerned the effect of the defects, regulation 65(8), the status of the 2021 notice and delay.

1. Appeal dismissed. The claim was in substance a challenge to the 2020 liability notice. The grounds first arose when that notice was issued on 30 June 2020, not when the revised notice was issued on 17 September 2021.
2. Judicial review claims must be brought promptly and, subject to any justified extension, within three months of the legally operative decision. Awareness of a possible legal ground does not determine when the grounds first arise: [2002] UKHL 23. Even where an extension might be justified, the court retains its discretion under section 31(6) of the Senior Courts Act 1981 to refuse permission or relief where delay would prejudice good administration: [1990] 2 AC 738. No adequate explanation or realistic remedy existed here.
3. The breaches of regulation 65(1) and (3) did not make the 2020 notice a nullity. A public authority’s decision is generally valid until quashed by a competent court: [1956] A.C. 736 and [2021] UKSC 46. The notice was issued and served, albeit on the wrong person and late. It therefore remained extant, capable of challenge and capable of revision.
4. Regulation 65(8) operates prospectively. An earlier notice remains effective until superseded by a later notice, then ceases to have effect without retrospective erasure. If the revised notice is quashed, the earlier notice may become effective again. Regulation 65(5) permitted the Council to issue a revised notice at any time and to correct the service error. The notice did not need to describe itself as revised if its purpose and effect were obvious.
5. The inspector’s regulation 117 jurisdiction extended to the surcharge only. It did not include power to determine the lawfulness or validity of the liability notice. The court left the question of waiver moot and did not need to decide whether the acknowledged breaches would themselves have justified quashing on a timely challenge.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1716, the appeal was dismissed and the refusal of permission for judicial review was upheld.
• High Court of Justice, King’s Bench Division, Planning Court: In [2022] EWHC 691 (Admin), Mrs Justice Lang refused renewed permission because the challenge was substantially out of time and ill-founded.
• High Court of Justice: Mr Justice Jay initially refused permission on the papers.