GEORGE BRAITHWAITE & ANOR. (R on the application of) v EAST SUFFOLK COUNCIL

A liability notice under the Community Infrastructure Levy Regulations 2010 is treated as valid unless and until quashed by a competent court. A later notice may replace or amend an earlier notice under regulation 65(5) only where the earlier notice was valid. A challenge to the earlier notice must be brought promptly; participation in an instalment arrangement may evidence waiver of defects. The court may refuse permission or relief where delay is unjustified, or where the statutory no-difference test is satisfied. The approach in R (Trent) v Hertsmere BC [2021] EWHC 907 (Admin) was applied on validity but distinguished on delay.

The claimants challenged liability and demand notices issued by East Suffolk Council under the Community Infrastructure Levy Regulations 2010 for development following a section 73 planning permission. A liability notice and demand notice were issued in June 2020, followed by an instalment arrangement. After a surcharge appeal, an Inspector found that the liability notice had not been correctly served and that it had been issued too late. The Council then issued fresh notices in September 2021.

Permission for judicial review was refused on the papers by Jay J because the challenge was late. The claimants renewed that application, arguing that the 2021 notices were invalid because the 2020 liability notice was invalid or had ceased to have effect.

1. Permission refused. The challenge to the 2020 liability notice was brought nearly 18 months after its issue, without an application for an extension of time or good reasons for delay.
2. Following R (Trent) v Hertsmere BC [2021] EWHC 907 (Admin), a liability notice is treated as valid until quashed by a competent court. The Inspector deciding a regulation 117 surcharge appeal had no jurisdiction to quash the 2020 liability notice.
3. Regulation 65(8) did not cause the 2020 liability notice to cease to exist when the 2021 notice was issued. It merely provided that the earlier notice ceased to have effect.
4. Because the 2020 notice remained in force unless quashed, regulation 65(5) permitted the Council to issue a revised liability notice at any time. That power is confined to amending or replacing an earlier valid notice and cannot validate a replacement where no valid earlier notice exists.
5. The decision in Trent was distinguishable on delay. There, the claimant had pursued an alternative statutory remedy and acted promptly after the Inspector’s decision. Here, the claimants accepted favourable instalment terms and did not challenge the 2020 notice until payment difficulties and surcharges arose.
6. In any event, section 31(3D) of the Senior Courts Act 1981 applied. The amount payable would have been the same had the liability notice been issued and served correctly, so the permission application was refused.

• High Court (Planning Court): Jay J refused permission on the papers on 7 February 2022 because the claim was late. Mrs Justice Lang refused the renewed application.