Stephen Luck, R (on the application of) v Bracknell Forest Borough Council [2025] EWHC 2984 (Admin)

[2025] EWHC 2984 (Admin)Case No AC-2025-LON000257
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/11/2025
Before
MRS JUSTICE LIEVEN
Between
MR STEPHEN LUCK)ClaimantBRACKNELL FOREST BOROUGH COUNCILDefendant
Paul Stinchcombe KC and Ned Helme (instructed by Dexter Montague LLP) for ClaimantRichard Honey KC and Alexander Greaves (instructed by Borough Solicitor) for DefendantHearing Hearing dates: 15 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MRS JUSTICE LIEVEN
[1]This is a judicial review of decisions of Bracknell Forest Borough Council (“the Council” or “CA”) in respect of Community Infrastructure Levy (“CIL”) payable by Mr Stephen Luck, the Claimant (“C”), referable to land at Pine Acres, Birch Lane, Ascot (“the site”).[2]The Claimant was represented by Paul Stinchcombe KC and Ned Helme and the Defendant was represented by Richard Honey KC and Alexander Greaves.[3]The decisions under challengeare the decisions to issue the Liability and Demand Notices in respect of Permission 16/00800/FUL (dated 6th December 2024); and the decisions to refuse to withdraw them and to refuse to agree not to collect CIL (dated 20th December 2024 and 4th September 2025, respectively). The original claim has been amended pursuant to Orders of Choudhury J dated 20th March 2025 and Sir Peter Lane dated 25th September 2025. Permission to proceed was given by Mrs Justice Lang on 6th May 2025 (save on the challenge to the 4th September 2025 decision which, by paragraph 7 of Sir Peter Lane’s Order, he ordered to be dealt with on a rolled-up basis).

Factual Background

[4]On 30th January 2017 the Council granted Permission 16/00800/FUL for one dwelling on the site. The planning permission was for a 5-bedroom dwelling and change of use and extension of an existing outbuilding to form an annex providing residential accommodation ancillary to the use of the main dwelling house.[5]The next day, on 31st January 2017, the Claimant was issued with a nil CIL Liability Notice, having been given 100% “self-build relief” following submission of the necessary CIL Form 7: Self Build Exemption Claim Form Part 1 (“the Self Build Part 1 Form”). The relief was of £334,478.27.[6]The Claimant’s Self Build Part 1 Form was received by the Council on 8th August 2016. Section B of that form included a declaration, signed by the Claimant, that “this is a “self build project” for the purposes of the exemption set out within the regulations”. A self-build is defined in the form as “all homes built or commissioned by individuals or groups of individuals for their own use, either by building the home on their own or by working with builders”. A further declaration on the form confirmed that: “I understand…The meaning of a ‘disqualifying event’ for CIL self build exemption and that where a disqualifying event occurs before or after commencement of development I must inform the collecting authority within 14 days”. (emphasis added)[7]A Commencement Notice was submitted by the Claimant, dated 27th July 2017, with a commencement date of 11th August 2017. Work commenced on that date, with works to the outbuilding on site for occupation by the Claimant during the self-build, which the Claimant proceeded to occupy.[8]A trench was subsequently dug in January 2020. However, the development authorised by Permission 16/00800/FUL never progressed beyond occupation of the outbuilding and the trench. Accordingly, a Compliance Certificate was never issued for the development, and no CIL Form 7: Self-Build Exemption Claim Form Part 2 was ever submitted.[9]On 24th January 2023 SPL Investment Holdings Ltd applied for planning permission 23/00046/FUL on the site. The Claimant is a director of this company.[10]On 19th January 2024 the Council granted Permission 23/00046/FUL for the development of two dwellings on the Pine Acres site. On 24th January 2024 the local planning authority (“LPA”) issued CIL Liability Notices for Permission 23/00046/FUL.[11]In October 2024 the Claimant sold the site to Pineacres LTD. He did not notify the Council of the sale, nor did he take any steps to transfer liability for CIL in relation to the 2016 permission. He moved onto land to the north of that site, where he currently lives (“the adjacent site”).[12]On 21st November 2024 the Council granted Permission 23/00047/FUL for the development of one self-build house on the adjacent site.[13]The original CIL Liability Notice in respect of Permission 23/00046/FUL, dated 24th January 2024, was in the Claimant’s name as the (then) landowner of the Pine Acres site.[14]On 28th May 2025 an Assumption of Liability Form was submitted to the Council in respectofPermission 23/00046/FUL by Mr Andrew Szymanski of Pineacres Ltd., and on 29th May 2025 and 17th June 2025 the Council issued revised CIL Liability Notices in Mr Szymanski’s name.[15]The pre-commencement conditions for Permission 23/00046/FUL were discharged by the Council on 23rd June 2025 and 17th July 2025, enabling the development lawfully to be commenced.[16]CIL Form 6: Commencement Notices were submitted by the third parties (the above-named Mr Andrew Szymanski of Pineacres Ltd. and a Dr Ashwin Soni) on 24th July 2025, and these were acknowledged by the Council in Acknowledgement Notices dated 28th July 2025.[17]The development authorised by Permission 23/00046/FUL commenced on or around 12th August 2025, and the outbuilding building on site had been demolished by this point. It is accepted by the Defendant that Permission 23/00046/FUL was now inconsistent with the single dwelling scheme authorised by Permission 16/00800/FUL, as the 2016 permission intended to retain and incorporate the outbuilding into the development, so it was now physically impossible to build the development permitted.[18]The Council issued a CIL Demand Notice, dated 12th August 2025, to Mr Andrew Szymanski for one half of the CIL liability referable to Permission 23/00046/FUL, naming Dr Ashwin Soni as the Liable Party for the other half.[19]The Claimant was progressing the development of the single dwelling authorised by Permission 23/00047/FUL on the adjacent site, although this had not yet been commenced. He was doing so as a self-build. On 2nd December 2024 the agent acting on behalf of the Claimant (Mr Christian Leigh) returned “Assumption of Liability” and “Self-Build Exemption” Forms to the Council referable to Permission 23/00047/FUL. I note that throughout the history set out above Mr Leigh was acting as the Claimant’s agent, not merely in respect of the obtaining of planning permissions but also in respect of CIL.[20]The claim for exemption was dealt with as follows:a. By an email to Mr Leigh dated 2nd December 2024 the LPA initially refused the Self-Build Exemption for Permission 23/00047/FUL on the basis that the Claimant already had a Self-Build Exemption for Permission 16/00800/FUL;b. An emailed reply from Mr Leigh to Mr Moore, dated 3rd December 2024, explained that whilst the development pursuant to Permission 16/00800/FUL had commenced, it was never proceeded with (let alone completed or occupied by the Claimant) and would not now be built;c. Pursuant to this correspondence, and by a fresh Liability Notice dated 4th December 2024, the Council changed their earlier position and confirmed the Claimant’s self-build exemption from CIL in respect of the development authorised by Permission 23/00047/FUL.[21]On 16th December 2024 the LPA sent two Demand Notices, dated 6th December 2024, in the sum of £334,478.27and £2,500,referable to Permission 16/00800/FUL.[22]On 18th December 2024 Mr Leigh sent an emailto Mr Moore at the Council asking that the Demand Notices be withdrawn. However, by an email dated 20th December 2024, the Council refused. This is one of the decisions under challenge.[23]It is accepted by the Claimant that until the 2023 permission had reached a position which meant that development pursuant to the 2016 permission was no longer possible, the Council could not have been certain that the single dwelling for the 16/00800/FUL scheme would not be built. The outbuilding was demolished in August 2025 and therefore it was at that date that it was clear that the 2016 permission would not be completed.[24]Solicitors acting for the Claimant sent a further letter to the Council, dated 27th August 2025, again requesting the Council to withdraw all Liability and Demand Notices in respect of Permission 16/00800/FUL. By a letter dated 4th September 2025, the Council again refused. This is the second decision under challenge and is the subject of the order of Sir Peter Lane.[25]The key parts of the letter of 4th September 2025 stated: Bracknell Forest Borough Council (“the Council”) has carefully considered your request that it withdraw all Community Infrastructure Levy (CIL) Liability and Demand Notices in respect of permission ref: 16/00800/FUL and does not seek to recover CIL from Mr Luck on that permission, following the change in circumstances outlined in your letter. However, it declines to do so for the reasons set out below. First […] on the correct interpretation of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”) Mr Luck remains liable to pay CIL in respect of the development that was commenced under permission reference 16/00800/FUL. Liability arises following commencement of a chargeable development, irrespective of whether the development is actually completed. […] Second, the Council, as collecting authority for CIL, cannot simply determine not to collect CIL which is otherwise due because the operation of the CIL Regulations might potentially be considered by some to be unfair on the facts of a particular case. […] Furthermore, the CIL Regulations contain specific provisions dealing with relief from CIL that would otherwise be due, including discretionary relief for exceptional circumstances under Regulation 55 […] Therefore, in the circumstances of this case, the Council does not consider that it has the power to decide not to collect the CIL that is due. Third, even if the Council does have a general discretion not to collect CIL that is otherwise due under the CIL Regulations, it will not be exercising any discretion to do so in this case. In reaching that conclusion, it has had regard to Mr Luck’s circumstances, as set out in his witness statement dated 1 July 2025 and your letter. However, it has also had regard to the following factors: (a). There were alternative options available to Mr Luck to avoid or reduce his liability to pay CIL […] (b). As a result of the implementation of the development permitted under 16/00800/FUL and the subsequent occupation of the outbuilding by Mr Luck pursuant to that permission, the subsequent development permitted under 23/00046/FUL benefitted from a deduction in CIL liability […] (c). The Council has to adopt a consistent and fair approach to its administration of the CIL Regulations.

The Planning Act 2008

[26]CIL is a levy provided for by s.205 of the Planning Act 2008 ("the 2008 Act"). In s.205(2) the overall statutory purpose of CIL is “to ensure that 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 of the area economically unviable.” This purpose was reiterated by Thornton J in Lambeth LBC v SSHCLG [2021] PTSR 1606 at [1].[27]By s.206 the local authority, described as the “charging authority”, has a discretion on whether to introduce CIL in its area. The scheme is therefore clear that the decision to introduce CIL is discretionary, but if it is introduced then there are detailed provisions to follow set out in the Regulations.[28]S.208 deals with liability for CIL, and states that liability arises on the commencement of development: (3) A person who assumes liability for CIL before the commencement of development becomes liable when development is commenced in reliance on planning permission. (4) CIL regulations must make provision for an owner or developer of land to be liable for CIL where development is commenced in reliance on planning permission if—(a) nobody has assumed liability in accordance with the regulations, or(b) other specified circumstances arise (such as the insolvency or withdrawal of a person who has assumed liability).[29]S. 222 provides for the making of Regulations, subject to the negative resolution procedure. S.222(1)(d) provides that Regulations “may confer, or allow a charging schedule to confer, a discretionary power on the Secretary of State, a local authority or another specified person”.[30]The Claimant commenced judicial review proceedings on 25 February 2025.

The Community Infrastructure Levy Regulations 2010

[31]The CIL Regulations 2010 set out the overall CIL scheme. In Lambeth at [8] to [28] Thornton J gives an extensive explanation of the structure and scheme of the 2010 Regulations. I refer below to the key parts for the purposes of this case.[32]CIL is payable by the person who has assumed liability to pay or, if no one has assumed liability, by either the owner or developer of the land, see s.208 and Regulations 31 and 33.[33]By Regulation 31, a person who wishes to assume liability to pay CIL in respect of a chargeable development must submit an “Assumption of Liability Notice” to the collecting authority. By Regulation 31(3), a person who assumes liability will be liable to pay an amount of CIL equal to the chargeable amount, less any relief granted, upon commencement of the chargeable development.[34]Importantly, Regulation 32 allows a person who has assumed liability to transfer the assumption of liability to another person, by submitting a liability transfer notice. By Regulation 32(3): (3) A liability transfer notice must be received by the collecting authority no later than the day on which the final payment of CIL is due in respect of the chargeable development.[35]In the present case the Claimant did not submit a liability transfer notice in respect of liability on the 2016 permission.[36]Part 6 of the Regulations deals with “Exemptions and Relief”. The provisions creating an exemption from CIL for self-build housing were introduced in the Community Infrastructure Levy (Amendment) Regulations 2014 by Regulations 54A-D of the 2010 Regulations.[37]Regulation 54A (as relevant) states: 54A.— Exemption for self-build housing(1) [A] person (P) is eligible for an exemption from liability to pay CIL in respect of a chargeable development, or part of a chargeable development, if it comprises self-build housing or self-build communal development.(2) Self-build housing is a dwelling built by P (including where built following a commission by P) and occupied by P as P's sole or main residence[38]Regulation 54B sets out a detailed procedure for the operation of the exemption: 54B.— Exemption for self-build housing: procedure(1) A person who wishes to benefit from the exemption for self-build housing must submit a claim to the collecting authority in accordance with this regulation.(2) The claim must— (a) be made by a person who— i. intends to build, or commission the building of, a new dwelling, and intends to occupy the dwelling as their sole or main residence for the duration of the clawback period, and ii. has assumed liability to pay CIL in respect of the new dwelling, whether or not they have also assumed liability to pay CIL in respect of other development; (b) subject to paragraph (3A), be received by the collecting authority before commencement of the chargeable development; (c) be submitted to the collecting authority in writing on a form published by the Secretary of State (or a form substantially to the same effect); (d) include the particulars specified or referred to in the form; and (e) where more than one person has assumed liability to pay CIL in respect of the chargeable development, clearly identify the part of the development that the claim relates to.(3) [Subject to paragraph (3A), a] claim under this regulation will lapse where the chargeable development to which it relates is commenced before the collecting authority has notified the claimant of its decision on the claim. (3A) Paragraphs (2)(b) and (3) do not apply where an exemption for self-build housing has been granted in relation to a chargeable development and the provision of self-build housing or self-build communal development changes after the commencement of that development.(4) As soon as practicable after receiving a valid claim [...] the collecting authority must grant the exemption and notify the claimant in writing of the exemption granted (or the amount of relief granted, as the case may be) [ and provide an explanation of the requirements of regulation 67(1)](5) A claim for an exemption for self-build housing is valid if it complies with the requirements of paragraph (2).[39]It can be seen from Regulation 54B that there is a very detailed procedure for the exemption and that Regulation 54B(5) requires compliance with the procedure in (2). The Regulations give the charging authority no discretion on the decision whether or not to grant the exemption.[40]Regulation 54C provides for the position at the completion of the self-build housing: 54C.— Exemption for self-build housing: completion of development(1) A person (P) granted an exemption for self-build housing in respect of development (D) must comply with this regulation.(2) Within six months of the date of the compliance certificate for D, P must submit a form to the collecting authority confirming that D is self-build housing or self-build communal development (as the case may be).(3) The form referred to in paragraph (2) must— (a) be submitted in writing on a form published by the Secretary of State; (b) (or a form to substantially the same effect); (c) include the particulars specified or referred to in the form; and (d) be accompanied by the documents specified or referred to in the form.[41]Regulation 54D of the CIL Regulations makes provision for the withdrawal of the exemption for self-build housing, inter alia, as follows:(1) This regulation applies if an exemption for self-build housing is granted and a disqualifying event occurs before the end of the clawback period.(2) For the purposes of this regulation, a disqualifying event is—a. any change in relation to the self-build housing or self-build communal development which is the subject of the exemption such that it ceases to be self build housing or self-build communal development;b. a failure to comply with regulation 54C;c. the letting out of a whole dwelling or building that is self-build housing or self-build communal development;d. the sale of the self-build housing; ore. the sale of the self-build communal development.[42]The phrase “clawback period” is used for a number of the exemptions/reliefs (see: Regulations42C(1), 48(1), 53, and 54D(1)) and definitions for each are provided in Regulation 2, which states that, for the self-build exemption, “clawback period” means: (b) in relation to the exemption for self-build housing, the period of three years beginning with the date of the compliance certificate relating to the relevant dwelling…[43]Regulation 2 defines “compliance certificate” as meaning a certificate given under:(a) regulation 17 (completion certificates) of the Building Regulations 2010; (aa) regulation 44 (completion certificate applications: decisions) of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, or(b) section 51 (final certificates) of the Building Act 1984.[44]The clawback period for the self-build exemption does not therefore begin until after the building work has been completed and inspected.[45]Regulation 57 and 58 make provision for relief to be granted in exceptional circumstances. Although there is no suggestion that that applies in the present case it is in my view important because it shows that this was a detailed scheme where, if exceptional circumstances were claimed they were expressly dealt with in the Regulations.[46]Regulation 65 deals with the making of a liability notice. Regulation65(1) states: (1) The collecting authority must issue a liability notice as soon as practicable after the day on which a planning permission first permits development.[47]Regulation65 then makes provision for the issuing of revised liability notices in specified circumstances. It is important to note that Regulations65(1) to (4) are in mandatory terms, setting out what the collecting authority “must” do. Then Regulation 65(7), which is central to the Claimant’s Ground Two, states: (7) A collecting authority may withdraw a liability notice issued by it by giving notice to that effect in writing to the persons on whom it was served.[48]A Commencement Notice must be submitted to the collecting authority no later than the day before chargeable development is commenced – see: Regulation 67.[49]The collecting authority must serve a Demand Notice on each person liable to pay CIL on a chargeable development, stating the date(s) on which payment is due – see: Regulation 69. By Regulation 69(2)(c) a Demand Notice must identify the Liability Notice to which it relates. There is nothing in Regulation 69 which gives the collecting authority the power to withdraw a demand notice.[50]Regulation 74B allows for CIL paid under a first planning permission to be credited against that due under a second in certain circumstances. Its first three paragraphs provide:(1) This regulation applies where— (a) a chargeable development has been commenced under a planning permission (A); (b) a different planning permission (B) has been granted for development on all or part of the land on which the chargeable development under A is authorised to be carried out; and (c) the charging authority receives notice from a person who has assumed liability to pay CIL in relation to B that the chargeable development under A will cease to be carried out and that the chargeable development under B will commence.(2) Where this regulation applies a person who has assumed liability to pay CIL in relation to B may request that the charging authority credits any CIL paid in relation to A against the amount due in relation to B.(3) To be valid a request under paragraph (2) must be— (a) made before the chargeable development under B is commenced; and (b) accompanied by proof of the amount of CIL that has already been paid…[51]Regulation 74B was introduced to avoid a risk of double charging in circumstances where one development commences, is not completed, and another takes its place – see: Paragraph 138 of the CIL Guidance:
“…This levy credit is known as abatement (regulation 74B as inserted by the 2014 Regulations and amended by the 2019 Regulations). This provision is to ensure that the charge is not inappropriately levied twice (or more) as schemes change during the course of development of a site…”
[52]The enforcement of CIL by collecting authorities is discretionary – see, for example: the use of the word “may” in Regulations 89(2), 90(2), 91(1), 94(1), 97(1), 98, 100(1), 103(1), 107(4) and 108(7). The Court’s enforcement powers also involve the exercise of discretion – see, for example: Regulations 104(1) and 107(5), both of which require consideration of all the circumstances of the case, including the personal circumstances of the debtor.

The Caselaw

[53]In R (Gardiner) v Hertsmere Borough Council [2022] EWCA Civ 1162 the Court of Appeal were considering the self-build exemption for CIL. A number of important points arise from the case:a. At [35] the Court cites with apparent approval Thornton J at first instance observing that CIL is “akin to a tax”, and that “the proper interpretation of tax legislation requires a close analysis of what, on a purposive construction, the statute actually requires”;b. At [45] “The statutory scheme forCIL is self-contained and carefully constructed.”c. At [57] the Court said: “An essential part of the regime for the self-build housing exemption in the CIL Regulations is the strict procedure in regulation 54B. Adherence to this procedure is not optional; it is obligatory. If it is not followed, the exemption will not be available. To be valid, a claim must be submitted to the collecting authority “in accordance with this regulation” (regulation 54B(1)). The claim must comply with the requirements of regulation 54B(2). An indispensable requirement is that it must be made by a person who “has assumed liability to pay CIL …” (regulation 54B(2)(a)(ii)). The exemption is only available to a person who has already assumed such liability.”d. At [63] they said: “Liability to CIL, as to any other tax, must be precisely and reliably calculated on an objectively certain basis”.[54]In R (Trent) v Hertsmere Borough Council [2021] EWHC 907 Lang J was also dealing with the self-build exemption, and she made clear at [60] and [69] the need for strict compliance with the procedure if the exemption was to be relied upon (in that case the procedural failures were by the collecting authority).[55]In R (Shropshire Council) v SSCLG [2019] EWHC 16 CMG Ockleton sitting as a Deputy High Court Judge was again dealing with procedural non-compliance in respect of the self-build exemption and whether the collecting authority’s imposition of interest was lawful. At [40] he said, “The Regulations make perfectly clear the consequence of failure to comply is loss of the exemption: and failure to comply means failure to submit a notice under regulation 67”. At [44] he said, “the fact that the penalties are discretionary does not mean that the imposition of CIL itself is discretionary: it is not”.[56]In R (Heronslea) v SSCLG [2022] EWHC 96 Lang J was dealing with the social housing exemption in Regulation 51. At [120] she said; “the purpose of the CIL Regulations is to give certainty to developers and the collecting authority as to when and how the liability for CIL will arise.”[57]Importantly, in respect of the effect of a liability notice, she said at [134]: In Lambeth v Secretary of State for Housing Communities and Local Government & Anor, Thornton J. rejected an argument similar to that relied upon by the Claimant before me. She correctly concluded, at [75]:
“The interested party falls into the same error of analysis as that rejected by Swift J. in Oval Estates [2020] PTSR 861, paras 32-34. Liability to pay CIL and the date and quantum of payments is not determined by the issue of liability or demand notices. Rather those notices record the liability and terms of payment.”
[58]The fact that liability for CIL is not determined by the Liability Notice, but merely recorded by it, is important for Ground Two.[59]A number of points in respect of the CIL regime can be drawn from this caselaw:a. CIL is akin to a tax, see Gardiner at [35];b. The purpose of CIL is to provide funding for necessary development and to provide certainty to developers and the collecting authority as to when and how such liability arises, see s.205 PA and Heronslea at [120];c. The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];d. The imposition of CIL is not discretionary, see Shropshire at [44];e. There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];f. Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].[60]This case turns on issues of statutory (including secondary legislation) interpretation. The Supreme Court considered the approach to statutory interpretation in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] 2 WLR 343. This is helpfully summarised by the Court of Appeal in Gardiner at [48]:
“In undertaking that process, the court is seeking the meaning of the words which Parliament has used. It should endeavour to identify the meaning of the language used in its particular statutory context. Other provisions in the statute and the statute as a whole may provide the relevant context. As Lord Hodge DPSC put it (in para 29), “[they] are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained”, and (in para 30) “[external] aids to interpretation therefore must play a secondary role”, capable though they may be of “assisting a purposive interpretation of a particular statutory provision”
. Ultimately, again as Lord Hodge DPSC put it (in para 31), “[statutory] interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered”.[61]The Court of Appeal in Gardiner then applied the principles of tax law to the interpretation of the provisions relating to CIL at [49]:
“In my view the provisions with which we are concerned ought to be understood as they are formulated in the legislation, and the words used should be given their natural and ordinary meaning, having regard to their particular context, and bearing in mind that statutory provisions for taxation ought, in general, to be strictly construed and effect given to the clear terms in which the Parliament may be expected to enact such provisions. As Rowlatt J said in Cape Brandy Syndicate v Inland Revenue Comrs [1921] 1 KB 64, 71: “… [In] a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”
[62]Given that the Court of Appeal have held that CIL is a form of taxation, it is relevant to consider the caselaw on the scope of HMRC’s powers to waive tax which would otherwise be liable. In R (Clamp) v HMRC [2022] 1 WLR 1067 Butcher J was considering a judicial review concerning HMRC’s powers to enter into assurances with taxpayers as to tax liability.[63]At [32] he referred to HMRC’s very wide powers of collection and management and said; “Inherent in those powers of collection and management is a discretion”. At [40] he referred to HMRC’s powers to make tax arrangements and assurances as part of their collection and management powers.[64]He then went on at [41] to say: HMRC cannot properly, however, make concessions that tax should not be payable, where this is done not to facilitate the overall task of tax collection, but because they consider that a tax which Parliament has clearly imposed should not as a matter of principle or policy, or by reasons of considerations of equity, be payable. In R (Wilkinson) v Inland Revenue Comrs [2003] 1 WLR 2683, in the decision of the Court of Appeal in that case, Lord Phillips of Worth Matravers MR said this (at para 46):
“No doubt, when interpreting tax legislation, it is open to the commissioners to be as purposive as the most proactive judge in attempting to ensure that effect is given to the intention of Parliament and that anomalies and injustices are avoided. But in the light of the authorities we have cited above and of fundamental constitutional principle we do not see how section 1 of the 1970 Act can authorise the commissioners to announce that they will deliberately refrain from collecting taxes that Parliament has unequivocally decreed shall be paid, not because this will facilitate the overall task of collecting taxes, but because the commissioners take the view that it is objectionable that the taxpayer should have to pay the taxes in question.” “This [managerial] discretion enables the commissioners to formulate policy in the interstices of the tax legislation, dealing pragmatically with minor or transitory anomalies, cases of hardship at the margin or cases in which a statutory rule is di–cult to formulate or its enactment would take up a disproportionate amount of parliamentary time. The commissioners publish extra-statutory concessions for the guidance of the public and Miss Rose drew attention to some which she said went beyond mere management of the efficient collection of the revenue. I express no view on whether she is right about this, but if she is, it means that the commissioners may have exceeded their powers under section 1 of TMA. It does not justify construing the power so widely as to enable the commissioners to concede, by extra-statutory concession, an allowance which Parliament could have granted but did not grant, and on grounds not of pragmatism in the collection of tax but of general equity between men and women.”

Submissions

[65]The Claimant’s overarching submissions were made by Mr Stinchcombe, who also dealt with Ground Two. Mr Helme dealt with Ground One but also made some overarching submissions. To avoid confusion, I will refer to the “Claimant’s submissions”. I will refer similarly to the “Defendant’s submissions”.[66]The Claimant started by pointing to the statutory purpose of the self-build exemption being to encourage self-build housing and not place barriers in its way. This purpose is strongly reflected in the Consultation Document on the proposed self-build exemption, dated April 2013. He said to allow the Council to charge the Claimant £334,478.27 whilst the Council is also seeking to recover from the developer of the 2023 permission, in respect of an inconsistent development on the same land, was both unfair and absurd. It is now accepted that the two permissions cannot both proceed, and that the 2016 permission is impossible to complete. Therefore the Council is obliged to withdraw the liability for the Claimant to pay CIL in respect of that scheme.[67]He submitted that in effect the Council was seeking to double recover CIL in respect of the same land, although he accepted that it was not recovering off the same person twice and therefore, strictly speaking, it was not double recovery. He also accepted that the 2016 permission had been implemented, and the Claimant had had the benefit of living (lawfully) in the outbuilding for some 7 years pursuant to that permission. However, the Claimant’s submission was that he was effectively being penalised, with the effect that he could not now construct the self-build housing on the adjacent land. He therefore submitted that the Council’s decisions were contrary to the purpose of the self-build exemption scheme.

Ground One

[68]Under Ground One the Claimant submits that there had been no disqualifying event (“DE”) under Regulation 54D and therefore the self-build exemption should not have been withdrawn, and the Council should have agreed to withdraw the CIL Liability Notice, whether in December 2024 or September 2025. The Council’s position is that the sale of the site to a developer was a DE that automatically led to the exemption being withdrawn and the liability for CIL arising. However, the Claimant submits that the DE, for the purposes of the self-build exemption in Regulation 54D, can only occur during the clawback period, i.e. three years from the compliance certificate under the Building Regulations. Here, the clawback period had not begun and thus there was no DE.[69]The Claimant had originally argued that the words “a disqualifying event before the end of the clawback period” (in Regulation 54D(1)) must necessarily mean that the event took place during the clawback period. However, he now accepts that those words are wide enough to embrace the possibility that for some reliefs/exemptions the DE might occur before the clawback period starts. The Claimant is forced into this concession because of the way other reliefs/exemptions arise, such as that for charitable relief in Regulation 48. However, for the purposes of the self-build exemption, he continues to submit that the DE must take place during the clawback period.[70]He submits that the different exemptions have different purposes and under Regulation 2 there are different clawback periods. Therefore, there is nothing inherently unlikely in the time for the DE to occur being different for the various exemptions.[71]The Claimant submits that for the self-build exemption the DE can only occur during the clawback period because there would be no self-build housing, within the meaning of the Regulations, which would be capable of ceasing to be self-build housing until the clawback period starts. The clawback period only begins on completion of the development. Under Regulation 9 the “chargeable development” is the entire development for which planning permission is granted. Therefore, he submits that the overarching scheme is that the development only can only cease to be “self-build” housing, within the meaning of the Regulations, when it reaches completion and is not then occupied as self-build housing. The trigger events in Regulation 54D(2) are not met until that stage.[72]There is no failure to comply with Regulation 54D(2)(b) until there is a failure to comply with Regulation 54C, i.e. the service of the notice under Regulation 54C(2). The dwelling is not capable of being let out, see Regulation 54D(2)(c). The self-build housing/communal development would not be capable of being sold, under Regulation 54D(2(d).[73]Further the Claimant submits that the mere sale of the land to a third party who did not evince an intention to occupy it is not itself a DE. There is nothing in the language of the Regulations to suggest that a subjective intention which could be changed is capable of being a DE.[74]The Claimant refers to three pieces of extrinsic material to support his interpretation of the Regulations.[75]Firstly, the Claimant relies on the CIL Guidance, set out in the Planning Practice Guidance at paragraph 094 (Revision 1 September 2019), which states:
“A self-build exemption is revoked if a disqualifying event occurs during the 3 year occupancy period…”
(emphasis added).”[76]Secondly, both parties referred to the Consultation Document on the creation of the self-build exemption, dated April 2013. At paragraph 83 that document says: “Should the applicant decide at any point that the development is not going to be a self-build project, they should inform the charging authority and pay the levy”.[77]Thirdly, I am referred to the CIL self-build exemption claim form. This is a form produced on behalf of the Secretary of State and therefore, although it is not approved under the Regulations, it does have some official support. There are two parts that are relevant. Under Section B it states:
“I declare that I will occupy the premises as my sole or main residence for a period of 3 years from completion.”
Under the declaration section it states:
“I understand… The meaning of a “disqualifying event” for CIL self build exemption and that where a disqualifying event occurs before or after commencement of development I must inform the collecting authority within 14 days.”
(emphasis added). The first statement might tend to support the Claimant’s argument; the second statement unequivocally supports that of the Defendant.[78]The Defendant relies on the caselaw set out above, and the need for strict procedural compliance in accordance with the Regulations if the exemption is to be relied upon.[79]They submit that under Regulation 54A self-build housing covers both housing under construction (i.e. post implementation but before completion) and housing that is occupied.[80]The self build housing has to be built and occupied by the same person. This is clear from Regulation 54A(2), which refers to “P” both in respect of the building and the occupation, and P is defined as the person who is eligible for the exemption. It therefore follows that if the Claimant, who was P for the purposes of Regulation 54A(1), then sells the property to a developer that is a DE. The terms of Regulation 54A(2) are no longer met.[81]Therefore, Regulation 54D(2)(a) was met when the sale occurred, as the development ceased to be self-build housing at that point. The exemption is then automatically withdrawn under Regulation 54D(3). The Claimant failed to serve a notice under Regulation 54D(4), but if this had been done there would have been a duty on the Council to serve a notice under Regulation54D(7) providing for the full amount of CIL to be payable.[82]The Defendant submits that the Claimant’s argument is contrary to the words of Regulation 54D(1), which do not restrict the timing of the DE to taking place during the clawback period but simply say that the DE must occur “before the end of the clawback period”. Further, they submit that it is conceptually wrong to find the exemption can only be withdrawn during the clawback period, because if an exemption can be claimed before the development commences (in this case in January 2017) then it must be capable of being lost before the development is completed. Otherwise, the Council is potentially in the position where completion is delayed, or indeed never takes place, where the development is plainly not self-build housing, but the Council cannot levy the CIL that is properly due, or any liability is subject to a long delay. The Claimant’s argument that the Defendant could serve a Completion Notice under the Town and Country Planning Act 1990 is wholly impractical.[83]In terms of the Claimant’s argument that it is unfair that the Council can levy the full sum for a development that will never be completed and effectively achieve double recovery, the Defendant firstly submits that the Claimant had the benefit of having commenced the development and occupied the outbuilding pursuant to the 2016 permission for some 7 years. This strongly mitigates any alleged unfairness arising from the Council’s interpretation.[84]Second, the Regulations provide mechanisms to avoid the Claimant having to pay the CIL due. Firstly, under Regulation 32 the Claimant could have transferred liability to another person up to 14 days after the sale of the site.[85]Third, under Regulation 74B the Claimant could have applied for abatement of the CIL on the 2016 permission, against the CIL due on the 2023 permission. There were two ways this could have been done. The Claimant could have sought abatement between January and October 2024, i.e. between the grant of the 2023 permission and the time when he sold the site. Alternatively, he could have contracted on the sale that the purchaser (developer) would apply for abatement before commencing the 2023 permission, and then refund the CIL paid on the 2016 permission. For whatever reason the Claimant has taken none of these courses. I note that neither the Claimant, nor Mr Leigh (his agent), have given any details of the terms of the sale of the land.[86]The statutory scheme is therefore comprehensive and deals with all the situations that arise. The situation the Claimant now finds himself in is one that he could have avoided if he acted in accordance with the Regulations.

Ground Two

[87]Under Ground Two the Claimant argues firstly that the Defendant was wrong to consider that it had no discretion to waive the liability to CIL, and secondly that to the degree it did exercise a discretion it has done so unlawfully.[88]The factual position is that the Defendant initially asserted in December 2024 that it had no discretion to withdraw the liability notice and waive any CIL. However, in the subsequent decision of 4th September 2025 it said that, on the alternative basis, it had considered whether to exercise the discretion and declined to do so. It is the challenge to this latter decision which is subject to Sir Peter Lane’s order, and which I am considering on a rolled-up basis.[89]Ground Two appears to have four sub-grounds. Firstly, that the Defendant is wrong in law to assert that there is no discretion to withdraw the liability notice and waive the CIL levy. Secondly, that assuming there is a discretion, the Defendant acted contrary to the statutory purpose in failing to exercise it. Thirdly, again assuming the discretion, that the Defendant is seeking “double recovery” without statutory authority. Fourthly, that the exercise of the discretion was unlawful and contrary to general public law principles.[90]I start with the question of whether there is a discretion under the Regulations. The Claimant’s submission that there is a discretion rests on Regulation 65(7), which states that a collecting authority “may” withdraw a liability notice, and on the overall purpose of the Regulations. Therefore, it is said, there is necessarily an unrestricted discretion within the scheme to withdraw a liability notice and not levy CIL which would otherwise be due.[91]The fourth witness statement of Mr Leigh sets out examples of some other local planning authorities who do operate a form of discretionary scheme to allow the waiving of CIL in particular circumstances.[92]The Claimant relies on the overall statutory purpose, as referred to above, of the self-build exemption being intended to support self-builders and not to penalise them or make it difficult for them to construct the dwellings in question. Therefore, the Claimant submits that a construction of the Regulations which allows the Claimant to be effectively penalised for a development that he has not and now cannot build cannot be correct.[93]In relation to both the argument that there must be a discretion within the scheme, and that that discretion has been unlawfully exercised, the Claimant submits that the Council is in effect seeking to double recover CIL. The Claimant accepts, albeit somewhat belatedly, that the 2016 permission was not merely implemented but also that he had the advantage of living in the outbuilding pursuant to that permission for 7 years. However, he points out that the new built form of that development has not been constructed and now cannot be constructed. The 2023 permission has been implemented and the outbuilding, which formed part of the 2016 permission, has been demolished. Therefore, the Council is in effect seeking to collect CIL for two forms of built development on the same land, where only one can be constructed. Quite apart from the unfairness on the Claimant, such double recovery does not meet the statutory purpose in s.205 PA, whereby CIL is intended to cover the costs incurred by reason of the development.[94]Finally, the Claimant submits that the exercise of discretion in the letter of 4th September 2025 was unlawful. It is apparent from the letter that the Defendant has refused to exercise the discretion on the grounds of “consistency”, which in effect means that it has decided it will never waive CIL. This amounts to an unlawful fetter of discretion, because the Defendant is still in reality acting on the basis that there is no discretion.[95]The Defendant submits that there is no discretion to waive the liability and not collect CIL where it is payable under the Regulations. This is a comprehensive statutory scheme and once CIL is introduced (under s.206 Planning Act 2008) then it must be collected. It would be contrary to the statutory scheme for the Court to find an unfettered discretion to waive CIL.[96]In respect of the Claimant’s reliance on Regulation 65(7), the Defendant relies on the caselaw referred to by Lang J in R (Heronslea) v SSCLG [2022] EWHC 96 at [134]. The liability for CIL is not created by the liability notice but rather by the commencement of the development.[97]Regulation 65 sets out a very detailed procedure for the service and, if required, revision of liability notices. If the notice is revised under Regulation 65(4) then one consequence is that a notice may be withdrawn under Regulation 65(7). This deals with the situation where the first notice is fundamentally erroneous. The Court of Appeal in R (Braithwaite) v East Suffolk DC [2023] 832 held that a liability notice continued its legal existence even after a revised liability notice had been issued, see [74]. It therefore follows that for the earlier liability notice to cease to have legal effect it has to be withdrawn under Regulation 65(7).[98]The Defendant submits that to construe Regulation 65(7) to provide an overarching discretion to withdraw liability notices and therefore waive CIL liability is contrary to the scheme of the Regulations. It would make no sense to have a duty to issue a notice and a revised notice under Regulation 65(1) and (4) if there was an unrestricted discretion to withdraw a notice and waive liability under (7).[99]An obvious inconsistency would arise because there is a duty in Regulation 69(1) to issue a demand notice, but no power to withdraw such a notice. So, on the Claimant’s case, the liability notice would be withdrawn but the demand notice would remain extant. The Claimant’s only response to this is that the court should imply a power to also withdraw a demand notice.[100]Regulation 55 gives a discretion to grant discretionary relief in “exceptional circumstances” from liability for CIL, in very specific circumstances, see Regulation 55(3). This strongly indicates against a very broad and unfettered discretion in Regulation 65(7).[101]The Defendant now accepts that there is a degree of discretion as to what enforcement steps the Council takes on non-payment, but that does not impact on the lack of discretion on the liability itself. There had been some lack of clarity on the Defendant’s position on discretion in respect of the enforcement of CIL liability. At the hearing, the Defendant accepted that there are judgements to be made by the Council as to what enforcement steps are taken if there is a liability for CIL, but it has not been paid.[102]There is a detailed scheme of enforcement powers, and within those the Council can make choices as to what steps to take to enforce a liability. It is at that stage that issues around alleged hardship may become relevant. The Claimant submits that it asked the Defendant to have a meeting to discuss all issues concerning the Claimant’s circumstances, and the Defendant did not agree to such a meeting and has not been prepared to consider the Claimant’s personal circumstances at all.[103]The Defendant submits that even if there is, contrary to its principal position, a discretion to waive CIL liability, it has lawfully considered the exercise of that discretion. The letter of 4th September 2025 takes into account the Claimant’s circumstances. However, the Defendant’s main point is that the scheme of the Regulations, in particular Regulation 32 and 74B, provided a mechanism by which the Claimant could have relieved himself of liability to pay CIL in respect of the 2016 permission; however, he did not avail himself of these powers. It was therefore wholly reasonable for the Council to choose not to exercise a discretion, if it had one.

Conclusions

[104]The Claimant seeks leave to challenge the decision of 4th September 2025 not to withdraw the liability notice and demand notices and refuse to agree not to collect CIL (plus surcharges and late payment interest). The arguments concerning this and the earlier decisions entirely overlap. On that basis I will grant permission for judicial review against the 4th September 2025 decision, although for the reasons set out below, I reject the challenge to both decisions on both grounds.[105]On Ground One I accept the Defendant’s submissions that a Disqualifying Event (DE) does not have to occur during the clawback period. That is the construction which best accords with the words of Regulation and the overall scheme.[106]The starting point in statutory interpretation is the words of the statute or regulation, see Lord Hodge in Project for Registration of British Children at [29]. Although that case concerned primary legislation, whereas the present case concerns secondary legislation, the same principle must apply, albeit with perhaps slightly less force.[107]Here Regulation 54D(1) says “a disqualifying event occurs before the end of the clawback period”. It does not say the DE has to occur during the clawback period. The alleged DE, the sale of the property, did occur “before the end” of the clawback period. Therefore, the actual words are strongly in the Defendant’s favour.[108]The Claimant now accepts that the words of Regulation 54D(1) can encompass a DE before the start of the clawback period, but seeks to argue that different periods should be required for different exemptions/reliefs. Although that might be theoretically possible as a matter of construction if any other interpretation were impossible to apply, in my view the Court should be slow to adopt an interpretation that gives different meaning to the same words depending on which other parts of the Regulations are in play.[109]Importantly, as the caselaw makes clear, this is a very detailed and comprehensive scheme for CIL as a whole, and the self-build exemption specifically. The court should therefore in my view be very cautious about reading words or conditions or limitations into the Regulations that do not appear on their face.[110]I agree with the Defendant that given that the exemption can be claimed, and thus the levy not paid, before the beginning of the clawback period, there is considerable logic in it being able to be withdrawn before the end of the period. The result of the Claimant’s argument is that an individual could gain the benefit of the exemption throughout the period that the dwelling was being constructed and right up to the service of the completion notice, even though the individual was well aware that the development was no longer eligible for the self-build exemption. This becomes even odder in cases where no compliance notice is served. The onus then falls on the Council to determine whether the development has been completed before it can require the full CIL to be paid.[111]In my view the much more obvious and logical construction is that as soon as a DE occurs under Regulation 54D(2) then the exemption ceases to apply and the full CIL becomes payable.[112]The Claimant submits that “self-build housing” means the housing that can be occupied by the self-builder, and therefore must have been completed. Regulation 54A is framed in the present tense as being a building built and occupied by P, which as a matter of language points to it only being such a building once constructed and occupied. However, in my view, that is not how the Regulations are framed. Regulation 54B is necessarily based on the intention to construct “self-build” housing, and the claim is made on the basis of that intention, see the wording of Regulation 54B(2)(a). Regulation 54D(2)(a) provides for withdrawal of the exemption if there is “any change relating to the self build housing… such that it ceases to be self-build housing”. If the intention necessary for the claim in Regulation 54A no longer exists, here by reason of the sale, then that is a “change relating to the self-build housing”, because the basis of the exemption has fallen away. In my view that is the interpretation which again best fits the words and the purpose of the Regulations.[113]The Claimant also argues that there was no DE here because the sale of the property to a developer did not amount to a DE. However, that sale is clear evidence that the intention that the development should meet the conditions for self-build housing no longer existed and the development cannot meet the relevant criteria. Therefore, the criteria in Regulation 54D(2)(a) for a “change” has been met.[114]For all these reasons I accept that there was a DE and therefore Ground One fails.[115]In respect of Ground Two the first issue is whether the Defendant has a discretion to not recover CIL even if there has been a disqualifying event. This turns on the submission that Regulation 65(7) creates a discretion not merely to withdraw a liability notice but to waive the underlying liability.[116]As I have set out above and as confirmed in the caselaw, the Regulations set out a very detailed statutory scheme. The purpose is to encourage self-build housing, but within the clear parameters of that detailed scheme.[117]Critically the Regulations make provision to allow someone with two inconsistent planning permissions to avoid paying CIL twice, and also for discretionary relief in carefully prescribed circumstances. The Claimant could have transferred liability for CIL under Regulation 31 from the 2016 permission to the 2023 permission during the period before the 2023 permission was commenced. Alternatively, the Claimant could have sought to rely on the abatement provisions in Regulation 74B, or alternatively make provision in the contract of sale of the site for the purchasers to apply under Regulation 74B and reimburse the Claimant. The Claimant took none of these steps. I note that the Claimant was professionally represented throughout.[118]Quite apart from the detail of the Regulations, there are two overarching reasons why it would be surprising if there was a broad discretion to waive CIL. Firstly, as is set out by the High Court in Clamp, one would not normally expect a tax collecting authority to have an unfettered discretion to waive the tax that Parliament had set. That point is even stronger here than in Clamp, because the local authority under the CIL regime is not in the same position as HMRC with broad management powers and a fairly wide discretion to reach “arrangements” with the taxpayer. So, it is even less likely that the local authority would have such a broad discretion to waive liability.[119]Secondly, to construe Regulation 65(7) as a broad discretion to waive CIL seems inconsistent with the rest of the Regulations. It would be a wholly unfettered discretion, with no criteria set out, in marked contrast to Regulation 55. There is no parallel power in relation to demand notices, so if the liability notice can simply be withdrawn, the court would have to imply into the Regulations a power for the demand notice to be withdrawn or to cease to have effect. The Claimant argues that by withdrawing the liability notice the underlying liability itself ceases. However, for Regulation 65(7) to have this effect would be inconsistent with the Court of Appeal decision in Braithwaite, which held that the liability continues to exist even where the liability notice is withdrawn.[120]In my view all these factors point to the Defendant’s construction being the better one. I accept that upholding the liability notice will result in some element of double recovery by the Council. Although credit is given in the CIL liability notice for the 2023 permission in respect of the outbuilding which has been demolished, there will remain a significant CIL payment in respect of a building that cannot be built. However, as I have said, this could have been avoided by the Claimant if he had taken the appropriate steps under the Regulations. Further, the Regulations contemplate that there can be an element of double recovery in certain situations. If the second development is smaller than the first, then the offsetting under Regulation 74B is only of the second amount, potentially leaving CIL payable above that which would be justified by the development that is going to be built. This is not a major point, but it does show that some element of double recovery is not inimical to the scheme. The mere fact that there is some double recovery does not lead to a conclusion that the Regulations have to be read in a different way. That is apparent from the decision in R (Hudson Contract Services) v SSBIS[2016] EWHC 844 (Admin) at [68]-[71], albeit in a different context.[121]The final issue is whether, if I am wrong above and there is a discretion to waive liability, the Defendant lawfully exercised that discretion. The Claimant submits that the Defendant has unlawfully fettered its discretion by relying on “consistency” to in effect decide that the discretion will not be exercised. However, the letter of 4th September 2025 does take into account the relevant considerations, namely what the Claimant had said about his personal circumstances (although he had given no verifiable financial information), the scheme of the Regulations, and the issue of “double recovery”. In my view, on the facts of the case, the Defendant was entitled to refuse to exercise the discretion, assuming it had one, having considered the relevant circumstances.[122]For those reasons I refuse Ground Two.

Cited in 1 later judgment