Recent CIL Court Decisions

ALUN OLIVER FRICS, Managing Director, has commented upon two key Community Infrastructure Levy (CIL) Court decisions recently.  Both of which make clear the importance of timely and specialist property tax advice.  As well as limiting the scope under which CIL challenges can be made.

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 from Swindon Borough Council (SBC) in the total of £125,274.64 and had sought a JR to reduce the CIL to zero.

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.

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…”. 

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.

The Court dismissed the developer’s application for a Judicial Review (JR) whereby they were seeking to quash their CIL costs of £380,326.30.

This ruling is a salient lesson that ‘self-assessment’ can be expensive.  It shows the importance of timely and specialist property tax input to properly understand the CIL requirements, risks, and costs from the complex and convoluted CIL Regulations 2010 (as amended).  The judge, Sir Tim Kerr, attested that “the Regulations are not for the faint-hearted” as many of us grappling with CIL on a daily basis already knew!

This case dealt with the conversion of an office into five residential apartments under Class MA permitted development.

Herod challenged the CIL liability maintaining that the building had been in lawful use and thus the net chargeable area was nil and hence zero CIL to pay.  Fatally, Herod had commenced works before their challenge had been properly requested and decided, invalidating any review as detailed within the Regulations.  As well as failing to fulfil the correct CIL processes.  Leading to the challenge and disputed CIL, surcharges and interest on the amounts due.

The judge dismissed all four grounds, agreeing with the defendant’s ‘more persuasive’ arguments that WCC had no requirement under the regulations to do all the ‘leg-work’ and that the onus of proof lay squarely with the developer to evidence their position.  Herod had failed to submit this to WCC in advance of commencing works.

This decision, together with that of R (oao Segrue Investments) v Swindon BC [2026] EWHC 2080 AC-2025-LON-003039, have truly limited the scope for challenging CIL charges - if outside the regulatory processes.  If you have a Liability Notice or Demand Notice, then time is of the essence and any review or appeal must be actioned quickly to ensure you comply with this time-limited challenges – within the respective 28 or 60days.

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.

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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.