Judge rejects legal challenge over £125k Community Infrastructure Levy liability and new evidence

The case came before Sir Peter Lane in the High Court in which Segrue Investments challenged Swindon’s decision to refuse to issue, and/or exercise its discretion to issue, revised liability notices concerning CIL liability for two chargeable developments in the town.

A lengthy dispute took place between Segrue and Swindon over CIL liability in which the company argued the council was under a duty, pursuant to regulation 65(4) of the Community Infrastructure Levy Regulations 2010 to consider the substance of new evidence, which it said showed its CIL liability should be reduced from £125, 274.64 to zero.

Part of this turned on whether one of the buildings had been in ‘continuous use’ after the departure of an HSBC bank branch but during the continued presence of various banking equipment.

Sir Peter said: “Judicial review is a remedy of last resort. It should not be deployed so as to sidestep and thus undermine appeal procedures, which the legislature has created for the purpose of ensuring that disputes (particularly those of a factual nature), are resolved by decision-makers whom the legislature considers to be best-suited to the task.

“In this case, there is nothing in the substance of the issue in dispute that renders pursuit of this alternative remedy inappropriate.”

He said there was a claimed miscalculation of the amount payable because the council wrongly thought a planning permission award was not a phased one, but this “is a situation that falls squarely within the statutory right of appeal; if not, it is difficult to see what is meant to be within the scope of that right.

“The error alleged…could have been considered on appeal and subject to the view taken on the merits, corrected on appeal.”

Dismissing all the grounds argued, Sir Peter said CIL regulation 65(4) “does not require a CIL authority to treat new evidence, whenever submitted, as constituting a 'change' within the ambit of regulation 65(4)(a).

“Nor does the provision require a CIL authority to substantively consider such evidence, in order to decide whether it constitutes a ‘change’ within that ambit.”

A second ground on failure to have regard to material considerations failed for similar reasons, as did one on irrationality.

Segrue’s fourth ground was that Swindon failed to provide adequate reasons for why the ‘new evidence’ did not meet the ‘in-use’ building test for CIL purposes.

Sir Peter said: “In light of my findings, the defendant did not err. It was not required on the facts of the case to engage substantively with the belatedly proffered material.

“Its explanation was that the time for review and appeal had passed. That was a lawfully adequate reason.”

Mark Smulian