Community Infrastructure Levy – Self-builder’s email to Council incapable of amounting to commencement notice

  • Posted

In the case of R (Shropshire Council) v Secretary of State for Communities and Local Government and another [2019] EWHC 16 (Admin), the High Court considered whether a self-builder’s email to the Council advising them of the commencement date for the site was capable of amounting to commencement notice required under the Community Infrastructure Levy Regulations 2010 (“CIL Regulations”).

Background

The claimant local authority applied for judicial review of the defendant secretary of state decision, made by the planning inspector, that the interested party had substantially complied with a notification requirement regarding the commencement date of a self-build home development. The interested party had obtained planning permission from Shropshire Council (the Council) to build a house with a garage. The Community Infrastructure Levy (CIL) liability was assessed at £36,861.43 and the interested party applied for and received a certificate entitling him to exemption from CIL as a self-builder under the CIL regulation 54A. Under regulation 54B(6), the interested party would cease to be eligible for the exemption if he did not submit a commencement notice before the development began. Under regulations 2(1) and 67, a commencement notice is required it to be in standard form.

Separately, under a section 106 agreement, £9,000 was due within two years of commencement of development or within three months of its completion, whichever was sooner. The interested party sent an email to the Council stating that “site clearance works will begin on site tomorrow”. The email heading referred to a s106 agreement and the email explained that the interested party understood the timing for the £9,000 payment. In response, the Council stated that “comments have been noted and our records updated”.

A month later, having not received the commencement notice, the Council issued a CIL demand notice which gave a deemed consent date of 13 August 2015. The interested party replied that he had given sufficient notice in his email of 10 July. The Council’s responded that the CIL process was a separate process from planning and controlled by CIL regulations which required commencement notice to be served. The interested party appealed against the imposition of surcharge.

The appeal was allowed and the planning inspector held that, although “on literal interpretation of the CIL Regulations, the 10 July email did not include the particulars required by the specified form and failed to identify the liability notice reference”, this “oversight” was not fatal. The 10 July email “in practice, substance, form and all intent and purpose” had the same effect as the statutory form. The purpose behind regulation 67 had been “satisfied in spirit at least” and failure to strictly comply with regulations 67(2) requirements should be put aside. The planning inspector further held that there had been no prejudice to the Council, who were aware of the commencement date.

The Council applied for the planning inspector’s decision to be quashed, stating:

  • The planning inspector had misunderstood or misconstrued regulation 67 and that if there was no commencement notice, the exemption for self-build housing was lost and the interested party had failed to comply with its mandatory requirements. Further, it was “plainly absurd” to regard the email in relation to s106 agreement as meeting the requirements of regulation 67(2)
  • The inspector’s approach would introduce uncertainty into CIL administration and discretion when applying the CIL Regulations
  • The 10 July email hadn’t been communicated to the Council’s CIL team and they had not been made aware of its content at the time

Decision

The High Court upheld the Council’s claim that the planning inspector’s conclusion that the breach commencement without the commencement notice, did not occur and therefore could not stand. The interested party relied on R v Secretary of State for the Homes Department ex parte Jeyeanthan [2002] 1 WLR 354, which set out a staged series of questions when dealing with procedural irregularities. The High Court’s view was that the Jeyeanthan ruling was only relevant where the party has “actually engaged in regulated conduct” and had attempted to comply or had partially complied with the statutory requirements. In this case, there was no compliance with the statutory requirements.

The High Court said the relevant authority here was R (Winchester College and another) v Hampshire County Council and another [2008] EWCA Civ. In this case, the Court of Appeal held that an application to upgrade two rural bridleways must comply strictly with the provisions relating to the form of the application. Where the application was required to include copies of documentary evidence, it was not sufficient to provide only a list of the documents.

Regulation 2 of the CIL Regulations defines “commencement notice” as “a notice submitted under regulation 67”. The High Court held that this provision placed the present case in the same frame as Winchester College. Given the provisions of regulation 67, a separate definition of “commencement notice” would not have been necessary unless to add something to regulation 67. This meant that a notice that did not comply with the requirements of regulation 67 (as to both content and timing) was not deemed a commencement notice at all for the purposes of CIL.

The High Court noted that there had to be a specific drafting choice to include definition at regulation 2, and that regulation 67(3) required a copy of the commencement notice to be served on owners of the land. This made it clear that the notice contains the material to enable the owner to be properly informed about the development, and not merely include new information.

The High Court went onto say that the planning inspector should have considered the Winchester line of authorities and the definition in regulation 2. It also stated that he should have concluded that the 10 July email was incapable of being commencement notice, as neither complied with the regulation 67 requirement nor was submitted under regulation 67.

The High Court agreed with the Council that the planning inspector had erred in his understanding of regulation 67. It found that it was “plainly absurd” to regard the email as a commencement notice within the meaning of CIL Regulations and that substantial reasons would be required for viewing the 10 July email as a commencement notice, despite the terms of the CIL Regulations as a whole. The High Court quashed the inspector’s decision under regulation 117.

Comment

This case demonstrates that, where Regulations specifically prescribes forms to be used and submitted (as was the case), then the procedure should be followed strictly in order to ensure compliance. The case also highlights the importance of providing information to the correct council department.