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Court orders borough council to refund £16k CIL payment to resident

Errors by Hertsmere Borough Council mean a local resident should have a community infrastructure levy (CIL) payment refunded, the High Court has found.

InTrent, R (On the Application Of) v Hertsmere Borough Council [2021] EWHC 907 Mrs Justice Lang said the council should repay Alison Trent the £16,389.75 she had paid it to prevent threatened enforcement proceedings.

Ms Trent applied for judicial review of Hertsmere’s decision to issue a CIL demand notice arising from her building a house on a site adjacent to her home in Radlett.

She had earlier successfully appealed against surcharges, where a planning inspector found liability notices were served late and incorrectly by Hertsmere.

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When she sought planning permission a Hertsmere planner stated she was required to complete an Additional Information Form but that the Assumption of Liability form was only “highly recommended”.

Hertsmere said it did not respond to Ms Trent’s application for a self-build CIL exemption because the Assumption of Liability Form was not completed.

Ms Trent said that since the form was only recommended she had not completed it as she believed she had supplied the information concerned to Hertsmere in other correspondence.

Lang J said: “Given that the council communicated frequently with [Ms Trent] about all other aspects of her planning application, advising her on the steps which were required, I find it surprising that it did not advise her that…a formal assumption of liability to pay CIL was a pre-condition to a valid claim for exemption, and so her claim for exemption was incomplete. In my view, [the planner's] letter did not make the position clear.”

The council then sent an electronic CIL liability notice, which omitted Ms Trent’s name and address and the liability notice number, the latter omission meaning she could not serve a valid commencement notice.

Another liability notice was sent to Ms Trent’s company at an address in London rather than to her personally at her Radlett home.

Lang J said: “I consider that the only plausible explanation for this error was incompetence on the part of the [council]. As the liability notice was not addressed and issued to the correct person, it is invalid.”

She said Hertsmere was required to issue and serve statutory notices which complied with CIL regulations in the prescribed sequence. Having not done so, Ms Trent was not under an obligation to pay the CIL.

“As the liability notice is a formal legal document, which imposes a tax liability on the recipient, and places a land charge on the owner's property, it is of fundamental importance that the recipient is correctly identified by their name,” the judge said.

“In this case, the liability notice should have been addressed and issued to 'Alison Trent’. She should have been identified as the owner of the relevant land. Instead, the [council] addressed and issued the liability notice to 'C/O Alison Trent & Co’, [Ms Trent’s] business. It has no legal or beneficial interest in [the house] and does not fall within any of the categories of recipients. The regulations do not contain any provisions to save a non-compliant notice.”

Lang J also upheld Ms Trent’s challenge under Article 1 of Protocol 1 to the ECHR since the liability notices were not valid and so the article would be breached were she required to pay the CIL.

Mark Smulian

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