Planning Court judge rejects out of time bid to challenge Community Infrastructure Levy liability

A challenge to an East Suffolk Council community infrastructure levy (CIL) liability notice was made so long outside the time allowed for judicial review that there was no reason to vary this, the High Court has ruled.

Mrs Justice Lang said in Braithwaite & Anor, R (On the Application Of) v East Suffolk Council [2022] EWHC 691 (Admin) that the case brought by George Braithwaite and Melton Meadows Properties “has been made very late and without good reasons for the delay. In all the circumstances, an extension of time is not justified.”

East Suffolk granted planning permission for a mixed residential and office development at the claimants’ site in November 2017, and a liability notice was served in December that year.

The claimants made two successful applications to vary the conditions to the planning permission and works commenced in August 2019.

East Suffolk accepted it was required to serve a fresh liability notice in respect of the changed planning permission granted in February 2019 but did not do so until June 2020.

It offered the claimants a "bespoke discretionary instalment plan” for payment but they failed to pay the first instalment of £287,707.33 due on 30 September 2020.

By December that year East Suffolk imposed a surcharge of £43,592.02 for late payment, and interest. Mr Braithwaite paid the overdue first instalment in January 2021.

The claimants submitted the council did not and could not lawfully serve the 2021 liability notice in accordance with regulation 65(1) of the CIL Regulations which requires this to be done “as soon as practicable after the day on which a planning permission first permits development".

But the 2021 notice was served two years and seven months after the February 2019 permission.

East Suffolk said the grounds for the claim first arose on 30 June 2020, and since a claim for judicial review must be brought within three months the case was long out of time, and no application for an extension of time had been made.

Although an inspector had found for the claimants in a surcharge appeal “the inspector had no power to quash the 2020 liability notice; only the High Court could do that”, the judgment noted.

Lang J said: “The claimants in this case took no steps to challenge the [fresh] liability notice when it was served on 30 June 2020, and instead entered into an instalment plan for payment, which was on favourable terms because of the defendant's recognition of the delay in issuing [it].

“The defendant rightly relied upon this as evidence of the claimants' waiver of the delay in serving the 2020 liability notice.

“It was only when the claimants fell behind with payments, and surcharges were imposed, that they appealed against the surcharges under regulation 117 of the CIL Regulations, some seven months after the issue of the liability notice.”

The claim for judicial review was filed in December 2021, nearly 18 months after the liability notice was issued, Lang J noted.

Mark Smulian