Comedy of errors goes to High Court

E³ Consulting comment on
Trent v Hertsmere Borough Council Decision
[2021] EWHC 907 (Admin)

CIL case review

Summary

A dispute over property ‘tax’ which led to a landmark ruling at the High Court has been branded ‘a warning shot’ over the bows of local planning authorities.

Mrs Justice Lang decided in favour of a planning applicant over her local council at the hearing into a £16,389 Community Infrastructure Levy (CIL) demand and surcharges of £2,550.

The case of Trent v Hertsmere Borough Council (HBC) revealed errors on both sides but delays and mistakes on the part of the local planning authority were the deciding factors.

Property tax specialist E3 Consulting said the ruling is a clear warning to ensure paperwork and procedures are correct – especially for councils.

Alun Oliver FRICS, who is managing director of E3 Consulting, said: “As is so often the case in such cases, when things go wrong the facts are messy and rather complicated.

“This decision provides a timely reminder to all Local Planning Authorities (LPAs) to follow, precisely, the correct procedures in any CIL matter – not least the requirement to act promptly – otherwise they could forfeit the levy payments otherwise due.”

The dispute arose following the issue of CIL demand notices by HBC on the construction of a new home by Alison Trent in Radlett following a planning permission granted in February 2017.

The case revolved Ms Trent’s submission of CIL forms – including a Form 7 (Part 1) self-build exemption claim – and the council’s belated response.

Ms Trent began work without following up on the self-build application and didn’t submit the necessary Notice of Intended Commencement. The issue only came to light after the development was finished in 2019.

HBC then issued their CIL Liability & Demand Notices but these were quashed by a planning inspector. A second CIL demand notice from the council in 2020 was successfully challenged again by Ms Trent by way of a judicial review at the High Court.

Alun added: “Unlike this landmark case, the vast majority of CIL appeals tend to find in favour of the local planning authorities.

“In this case there was quite a catalogue of errors on both sides but particularly from HBC in failing to respond and demonstrate that the relevant CIL processes had been correctly followed.

“Early advice is key to avoiding costly errors. Once work has started in the vast majority of cases it is usually too late and rarely results in a favourable outcome for the developer or homeowner.”

Full Article

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