Herod Property Ltd, R (on the application of) v Westminster County Council

In a Community Infrastructure Levy case arising from permitted development under a general consent, a developer may decide that the zero-charge exception applies and may omit a notice of chargeable development or commencement notice. That decision does not bind the collecting authority. The authority may issue its own notice, use statutory deeming powers where information is insufficient, and assess liability on commencement. A developer proceeding without a determination risks losing review and appeal rights. The Community Infrastructure Levy Regulations 2010 define the authority’s obligations; a free-standing Tameside duty does not require extensive investigation to rescue a silent developer. Liability crystallises on commencement and is not transferred to later owners. Misidentifying the Mayor of London as Transport for London did not invalidate notices where there was no prejudice and the charge was unchanged. Judicial review was also barred by an adequate alternative remedy.

Herod Property Ltd purchased part of an office building and converted it into five residential flats under permitted development authorised by prior approval. It did not submit notices of chargeable development or commencement. Westminster City Council later issued a liability notice and demand for approximately £295,000 in CIL, together with surcharges and interest, naming Transport for London instead of the Mayor of London as recipient of part of the levy.

The claimant sought judicial review on grounds concerning the zero-CIL calculation for retained in-use floorspace, the authority’s enquiries and apportionment of liability, the decision to issue the notices, and the naming error. The court also considered delay and the availability of statutory review and appeal remedies. Permission had been granted by Mould J on 11 February 2026.

The claim was dismissed. The court also refused the defendant’s late application to rely on further evidence.

1. Interpretation of the CIL scheme. Regulation 64(1A)(b) places responsibility on the developer to decide whether the zero-CIL exception applies. A developer may therefore omit a notice of chargeable development on that basis without first obtaining the collecting authority’s agreement. The authority is not bound by that assessment. Under regulation 64A, it must prepare and serve its own notice where the development has commenced and the specified statutory exceptions do not apply. Reliance on retained in-use floorspace is not an additional exception. The same analysis applies to the commencement-notice duty under regulation 67, but a developer proceeding without such notice risks a deemed commencement date under regulation 68 and the loss of review and appeal rights.
2. Enquiries and rationality. The developer had to establish the relevant period of actual lawful use for the in-use deduction. The collecting authority’s obligations were defined by the Regulations, and the common-law Tameside duty did not impose a separate investigative duty outside that scheme. Even if measured by that duty, the authority’s enquiries were sufficient. The authority was not required to undertake extensive investigations to rescue a developer which had failed to provide the necessary evidence.
3. Apportionment. CIL liability crystallised when development commenced, not when a notice was issued. Where no person had assumed liability, the owner or owners of the land at commencement were liable. The Regulations provided no mechanism for transferring that crystallised liability to persons acquiring material interests later.
4. Defective notices. Naming Transport for London instead of the Mayor of London did not cause prejudice, alter the amount due, or affect the merits of the claimant’s case. Parliament could not be taken to have intended total invalidity in those circumstances. The error was distinguished from the materially prejudicial defects considered in LB Hillingdon v Secretary of State for Communities and Local Government [2018] EWHC 845 (Admin). The court additionally observed that relief would have been refused under section 31(2A) of the Senior Courts Act 1981 if necessary.
5. Alternative remedy. Judicial review was a remedy of last resort. The claimant had an adequate statutory review and appeal route before commencement, but chose to proceed without obtaining a CIL determination. The unclear drafting of the Regulations did not create the exceptional circumstances required to bypass that route. The claim would therefore have been dismissed on this additional ground. A short extension of time would have been granted if necessary, but no formal determination was required.

This was a first-instance judicial review. Permission was granted by Mould J on 11 February 2026. His observations at the permission stage did not determine the merits, the alternative-remedy issue, or the claimant’s application for an extension of time.