High Court Decision - R oao (Segrue Investments Ltd) v Swindon Borough Council

ALUN OLIVER FRICS, Managing Director of Property Taxation Specialists, E³ Consulting, comments upon the recent High Court decision in R oao Segrue Investments Ltd v Swindon Borough Council [2026] EWHC 2080 (Admin).  This ruling has reinforced that a Judicial Review (JR) must be issued promptly and within the three-month time limit,  that the Community Infrastructure Levy (CIL) Regulations 2010 (as amended) should only be challenged within the formal processes set out in the Regulations – primarily Reg.113 and Reg.114 – and whilst JRs can be sought against any decision, they cannot supplant the processes incorporated in the Regulations.

This case dealt with two planning permissions being undertaken in respect of two chargeable developments at The Forum, Marlborough Road, Swindon, SN3 1QN by developer Segrue Investment Limited (Segrue and claimant).  They received two liability notices in the total of £125,274.64 and had sought a JR to reduce the CIL to zero.

The first liability notice (LN) (ref. CIL-2022-0105-LN1) dated 08 December 2022 (LN1) related to planning permission granted under Class R permitted development rights following prior approval for change of use to 15 apartments on 11 November 2022 (P1). 

The second liability notice (ref. CIL-2023-0005-LN1) dated 17 February 2023 (LN2) related to planning permission granted for “Change of use from office (class E(g) and E(c) to 3 apartments and 1 dwellinghouse (class C3), external alterations and associated works” on 26 January 2023 (P2).

The site was a former bank, operated by HSBC, which  Segrue intended to develop for residential use.  Swindon Borough Council (SBC), as defendant, contended that what Segrue characterises as the impugned decision, an email dated 04 July 2025 is not susceptible to judicial review; and that the claimant is out of time to challenge the actual decision making of the defendant and had not sought an extension of time.  SBC separately submitted that the challenge should fail because the Claimant had a suitable alternative remedy.

The challenge by Segrue lies in their contention that SBC was under a duty, pursuant to Reg.65(4) of the Community Infrastructure Levy Regulations 2010 (“the 2010 Regulations”), to consider the substance of new evidence, in circumstances where the Claimant says the new evidence indicates that the liability for CIL, in respect of the chargeable developments, should be reduced from £125,274.64 to zero.  Alternatively, Segrue submitted that SBC had unlawfully failed to exercise its discretion under regulation 65(5) to reduce the liability by the same amount.

Section 205 of the Planning Act 2008 (PA2008) provides for the Secretary of State with the consent of the Treasury to make regulations for the imposition of a charge to be known as CIL, the overall purpose of which is to ensure that the costs incurred in supporting the development of an area can be funded (wholly or partly) by owners or developers of land in a way that does not make development economically unviable.  Additionally, s.215 PA2008 states that the 2010 Regulations must provide for a right of appeal on a question of fact in relation to the application of methods for calculating CIL, which may include the period within which that right of appeal must be exercised. Hence the Reg.113 review process.

CIL is calculated by reference to Reg.40 and Schedule 1.  Paragraph 1(4) of that Schedule provides a formula that is calculated using the deemed net chargeable area, which is calculated in accordance with Paragraph 1(6).  This calculation allows for deductions for retained parts of “in-use buildings”.  Paragraph 1(8) and (10) provide:

“(8) Where the collecting authority does not have sufficient information, or information of sufficient quality, to enable it to establish that a relevant building is an in-use building, it may deem it not to be an in-use building.

 (10) In this paragraph-

[...]

“in-use building” means a building which-

(i)   is a relevant building: and

(ii)  contains a part that has been in lawful use for a continuous period of at least six months within the period of three years ending on the day planning permission first permits the chargeable development; [emphasis added]

[...]

“relevant building” means a building which is situated on the relevant land on the day planning permission first permits the chargeable development”.

Part 8 of the 2010 Regulations is concerned with the administration of CIL, which includes the issue of a “liability notice” under Reg.65 as soon as reasonably practicable after the day on which a planning permission first permits development.  But additionally includes scope to vary the liability notice under Reg.65(4):

 Reg.65

(4) The collecting authority must issue a revised liability notice in respect of a chargeable development if—

(a) the chargeable amount or any of the particulars mentioned in paragraph 2(e) or (f) change (whether on appeal or otherwise); or

(b) the charging authority issue a new instalment policy which changes the instalment arrangements which relate to the chargeable development [emphasis added].

(5) A collecting authority may at any time issue a revised liability notice in respect of a chargeable development.

Regulations 113 and 114 make provision for a statutory review and appeal process regarding the calculation of the chargeable amount.  Reg.113 provides that the Collecting Authority (CA) must undertake a review of the liability notice by a person senior to the person making the original calculation and who had no involvement in the original calculation.  Importantly, the review MUST be requested within 28days of the liability notice being issued.  The CA must also respond, comprehensively, within 14days clearly providing the reasons for the decision.  Whilst our experience is that some reviews result in a changed CIL amount, they are often held in favour of the CA and without adjustment.  Hence the Reg.114 permits an appeal of the matter to an independence overseer – the Valuation Office (VO).  Again, the appeal must be requested within 60days of the LN to be validated.  After an exchange of project data, whereby both parties have 14days to present their evidence, the VO then reviews the data and opines on the matter. 

Crucially, Segrue failed to submit their evidence to SBC within the 28days to commence the Reg.113 review, despite SBC setting out the process and highlighting the relevant date being 04 January 2023 – being 28days from LN1.  The claimant submitted a series of replies – but the first was 13 January 2023 – too late for the review requirement at Reg.113(2)(b) “before the end of the period of 28days…”. 

The in-use 36-month period was determined to be 08 December 2019 to 08 December 2022.  Which many will recognise as including a significant element of restricted access due to the Covid-19 pandemic.  SBC located a closure notice from HSBC that stated the branch “closed on 23 October 2020 and has been closed prior to this as a result of Covid-19.”

Segrue continued to press for an adjustment of the CIL under various guises but SBC rebuffing all claims as outside the Reg.113 timeframe.  Segrue referenced VO Appeal 1792686 that dealt with another bank, that was also in part closed during the pandemic, whereby that decision had held the bank was in lawful use and offset permitted (E³ Consulting had progressed that appeal, securing a significant CIL saving for the client).

 Via a Freedom of Information request, Segrue found that CIL authorities routinely issued revised LNs where the chargeable amount changes, citing London Borough of Tower Hamlets having changed 245 cases since 01 January 2020 and SBC itself had listed 58 revised LNs.  However, the case dialogue found that in all cases there  was clear guidance or ‘informative notices’ about the timeframes and processes required to challenge or correct the CIL amounts, referencing the regulations.

Segrue, via their counsel, Daniel Stedman Jones of 39 Essex Chambers, argued that the natural and ordinary meaning of the language used in Reg.65, read in its proper legislative context, does not qualify the exercise of the functions by reference to the separate review and appeal procedures, which occur later in the 2010 Regulations.  Those procedures were “no longer available once the new evidence had been discovered and, in the case of the second CBRE letter, obtained.”  This, said Segrue, is exactly the kind of situation for which the duty in regulation 65(4) and the discretion in regulation 65(5) exist.  Regulation 65(4) and (5) are there to address change when, in the words of the Planning Practice Guidance (PPG), it becomes “necessary” to do so.

 Sir Peter Lane, the Judge hearing the application in the High Court referenced the first sentence of paragraph 124 of the PPG does no more than précis part of regulation 65(4)(a).  The statement that “This way, collecting authorities may correct the details of a charge if it becomes necessary to do so” seems to me to be an uncontroversial observation on the overall effect of regulation 65(4) and (5).  Justice Lane continued that “Paragraph 124 of the PPG accordingly does not advance the Claimant’s case on the interpretation of these provisions”, rejecting the application for JR and determining (at paragraph 99 of the case transcript) that in his opinion “The provision 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”.

Lane J. continued at paragraph 101 to set out that “As a more general matter, one can also envisage that the power [under Reg.65(5)] might be invoked where the CIL authority is satisfied that, although the review/appeal process is no longer available, overtly cogent late evidence should be substantively considered because it was genuinely unavailable at the time and could not reasonably have been expected to be so available.  In so saying, I am not advancing an interpretation of the 2010 Regulations which incorporates the detailed principles that govern the circumstances in which fresh evidence may be adduced in the course of civil litigation.  My point is, rather, that regulation 65(5) can be seen as serving a number of functions, one of which is to enable the CIL authority to temper the effect of regulations 113 and 114 where the authority considers it is appropriate to do so.”  In effect, leaving Local Planning Authorities (LPAs) to take account and use their discretion in issuing a new LN under Reg.65(5) if they so decide.

It was held that the application was late and so out of time, being beyond the three-month period permitted in CIL cases to challenge the specific point of law.  Segrue had relied upon a later re-stating of SBC’s decision in an email of 04 July 2025 as the trigger to their action, when, in fact, that email merely restated a much earlier decision, and thus it was the first occurrence that would have been the impugned decision against which any JR application should have been made.

This is a complex area of CIL and one that many LPAs have accepted as reasonable in ‘correcting’ liability notices that are proven to be incorrect for whatever reason, not simply under Reg.113 or other appeal decision(s) whether Reg.114 or otherwise.  The fear is that some LPAs will now rely upon this decision to refuse any adjustment of the CIL amount payable after the fact, irrespective of how reasonable that may be, given the case circumstances.  Clearly, the case also reinforces the importance of timely advice and action to work within the relevant regulatory timeframes, or risk outright rejection by the LPA to any adjustment of the CIL.

Time is of the essence – so outside of any imminent changes to the Regulations (there are currently two consultations running on aspects of CIL and a third overdue from a promised further consultation to explore resolution of self-build cases, by Housing Minister, Matthew Pennycook MP) it will be even more important than before to ensure clients are fully aware of the intricacies of the CIL Regulations and how they and their advisers respond to the details, documents and liability notices, etc. from the LPA will be crucial to how the matter is to be resolved.  Afterall, as Lane J. stated in paragraph 109, “The Claimant had a case (or could with proper diligence have assembled a case), which the Claimant could have made the subject of the regulation 113/114 procedures” but failed to avail themselves of the remedies set out in the Regulations.

E³ Consulting had not acted in this matter, only seeking to provide commentary on what could become a pivotal case in the proper administration of CIL. 

It is unclear whether or not the claimant, Segrue, might seek to appeal this matter further. 

E³ Consulting has advised on CIL since 2014 and is one of the leading firms advising CIL-payers - be they homeowners or developers.  Additionally, we have supported a wide range of advisers including solicitors, planners, architects, funders and project managers on the complexities of CIL.

If you would like to discuss any property tax matters or specific queries relating to the above information, then please do contact the team on 0345 230 6450 or [email protected]. We look forward to speaking with you soon.