Stephen Luck, R (on the application of) v Bracknell Forest Borough Council

A disqualifying event under regulation 54D of the Community Infrastructure Levy Regulations 2010 need not occur during the clawback period. It is sufficient that it occurs before the end of that period. For self-build relief, a sale which ends the claimant’s intention to build and occupy the dwelling may constitute a disqualifying change before completion.

Regulation 65(7), which permits withdrawal of a liability notice, does not confer a broad power to waive an underlying CIL liability. The Regulations form a detailed and self-contained scheme, including specific mechanisms for relief, transfer of liability and abatement. Enforcement discretion does not make the underlying liability discretionary.

The claimant challenged the Council’s liability and demand notices for CIL arising from a 2016 planning permission for a dwelling and ancillary accommodation. He had obtained self-build relief, commenced the development and occupied the outbuilding, but never completed the permitted dwelling. He later sold the site, and a different development was commenced under a 2023 permission which made the 2016 scheme impossible to complete.

The claimant argued that no disqualifying event had occurred because the clawback period had not begun, and that the Council had power to withdraw the notices or waive the liability. The central issues were the construction of regulation 54D and the scope of regulation 65(7) of the Community Infrastructure Levy Regulations 2010.

1. Ground One failed. Regulation 54D(1) provides that a disqualifying event must occur before the end of the clawback period. It does not require the event to occur during that period. The court should be slow to read additional temporal limitations into a detailed statutory scheme.
2. The self-build exemption is based on the claimant’s intention to build and occupy the dwelling. Regulation 54B necessarily operates before completion, by reference to that intention. The sale of the site to a developer was clear evidence that the intention had ceased and constituted a change under regulation 54D(2)(a). The exemption therefore ceased to apply and the full CIL became payable.
3. Ground Two failed. Regulation 65(7) permits withdrawal of a liability notice, but does not create an unrestricted power to waive the underlying liability. Liability arises on commencement of development; the liability notice records that liability. The Regulations contain specific provisions for exceptional relief, transfer of liability and abatement. Those provisions are inconsistent with an implied general power to waive CIL.
4. The possibility that the result involved some element of double recovery did not require a different construction. The claimant could have used the mechanisms in regulations 32 and 74B, but did not do so.
5. Alternatively, if a discretion to waive liability existed, the Council had lawfully considered the claimant’s circumstances, the statutory scheme and the alleged double recovery. It had not unlawfully fettered its discretion.

Permission was granted to challenge the September 2025 decision, but both challenges were dismissed.