Herod Property Ltd, R (on the application of) v Westminster County Council [2026] EWHC 2122 (Admin)

[2026] EWHC 2122 (Admin)Case No AC-2025-LON-004282
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/08/2026
Before
SIR TIM KERR(sitting as a judge of the High Court)
Between
THE KING on the application of HEROD PROPERTY LIMITEDClaimantWESTMINSTER CITY COUNCILDefendantMAYOR OF LONDONInterested Party
Ms Celina Colquhoun and Mr Christopher Moss (instructed by Mishcon de Reya LLP) for ClaimantMr Armin Solimani (instructed by Bi-Borough Legal Services, Westminster City Council) for Defendant for The Interested Party did not appear and was not representedHearing Hearing date: 8 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 11 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Sir Tim Kerr:

Introduction

[1]The claimant property developer asks the court to quash decisions of the defendant tax collecting authority requiring payment of just under £295,000 in community infrastructure levy (CIL), and other consequential relief. The dispute arises from the claimant in the early 2020s purchasing part of an office building in Bayswater, London W2, and converting it into five residential flats for sale. The defendant is the collecting authority for itself, i.e. for the City of Westminster, and on behalf of the interested party, the Mayor of London.[2]The Mayor has taken no part in the proceedings. On 11 February 2026, Mould J granted permission for the claim to proceed on all grounds. In the claimant’s skeleton argument they are characterised as follows: 1- Unreasonableness: Failure to include retained parts of in-use buildings when calculating CIL 2- Failure to comply with the CIL Regulations – material interests and apportionment 3- Unreasonable decision to issue the notices 4- Error on face of [Liability Notice] and [Demand Notice].[3]The defendant submitted at the permission stage and submits now that the claim is out of time and that judicial review is not available because the claimant had suitable alternative remedies of statutory review and appeal, which were not used but could have been. In his observations that followed his order and directions, Mould J stated that he had “not been persuaded that the Defendant’s arguments on delay and alternative remedy justify the refusal of permission.”[4]The defendant also opposes the claim on its merits, saying that the claimant is the author of its own misfortune; that the defendant correctly applied the statutory provisions for collecting CIL; that the claimant took the risk of commencing development without first serving a notice to establish an exemption from liability; and that the defendant’s enquiries and actions during the process of collecting the CIL were adequate and reasonable.[5]On the fourth ground, the defendant accepts that the relevant liability notice and demand notice did contain an error: part of the CIL was said to be collected for the benefit of Transport for London rather than, as is the case, the Mayor of London. The parties disagree over whether that error is material and invalidates the notices, as the claimant says, or whether it is inconsequential and does not affect the validity of the notices, as the defendant says.

The Facts

[6]From 2016 to early 2021 a commercial enterprise, Eastern and Oriental (E&O) owned the freehold of 32 and 34 Palace Court. For about a year up to January 2021 they were used as E&O’s UK headquarters. On 19 January 2021, E&O exchanged contracts to sell 32 Palace Court to the claimant. E&O undertook physically to separate the two properties internally.[7]On 25 February 2021, a Mr Hamraj Sandher, an associate of the claimant, emailed Ms Katharine Woods of the claimant’s planning agents, a firm called DP9, asking whether there would be “any s.106 or CIL payments for either the 5 or 6 flat scheme?” Ms Woods answered the same day that no section 106 or CIL would be payable “given there is no uplift in floorspace”.[8]From 18 May 2021, 32 Palace Court was removed from the rating list due to cessation of business use. The next day, 19 May 2021, the claimant completed the purchase and soon became the registered proprietor.[9]From about 12 October 2021 to about August 2022, the claimant used 32 Palace Court as a design office for its staff and planning consultants, while deciding what to do with the property. By March 2022, the claimant had decided to convert it into five residential flats for sale to private buyers.[10]On 9 March 2022, DP9 submitted a “prior approval application” (reference no. 22/02746/P3JPA) to the defendant, for change of use of 32 Palace Court from office use to five self-contained flats. The defendant granted the application on 19 May 2022, subject to four conditions. I need only mention the first: that the development had to be not merely commenced but completed within three years from 19 May 2022, i.e. by 18 May 2025.[11]The letter continued with a passage headed “Informative(s)”. The recipient (Ms Woods of DP9), was informed that the property had been identified as potentially liable for CIL. Further details could be found on the relevant website, she was told. The informative text then continued:
“Responsibility to pay the levy runs with the ownership of the land, unless another party has assumed liability. If you have not already you must submit an Assumption of Liability Form immediately. On receipt of this notice a CIL Liability Notice setting out the estimated CIL charges will be issued by the council as soon as practicable, to the landowner or the party that has assumed liability, with a copy to the planning applicant. You must also notify the Council before commencing development using a Commencement Form. CIL forms are available from the planning on the planning portal: www.planningportal.gov.uk/planning/applications/howtoapply/whattosubmit/cil Forms can be submitted to CIL@Westminster.gov.uk Payment of the CIL charge is mandatory and there are strong enforcement powers and penalties for failure to pay, including Stop Notices, surcharges, late payment interest and prison terms.”

Forms can be submitted to CIL@Westminster.gov.uk

[12]A little over a year later on 26 April 2023, Ms Belinda Boerkamp of the defendant emailed Ms Woods of DP9, attaching documents which she asked Ms Woods to pass on to her client. Ms Woods did not do so. The email stated that “development commenced under general consent is liable to pay CIL” and that if the claimant intended to commence development under general consent “you must submit a Notice of Chargeable Development … before you commence this development”. She identified only one exception to this obligation: “if the development … is less than 100 square metres of new floorspace and … does not comprise one or more new dwellings”.[13]An attached letter of the same date stated that the proposed development, the defendant had concluded, would lead to a CIL charge; and warned of surcharges if the Notice of Chargeable Development form were not completed and returned. The CIL would then be calculated, Ms Boerkamp explained. If the developer disagreed with the calculation, it could seek a review and thereafter it could appeal. She added that CIL is “due only on commencement of the development”. She added a few further procedural points.[14]From June to November 2023, there was correspondence between the claimant (or its agents) and the defendant on the subject of discharge of conditions for the prior approval. The defendant agreed to discharge three of the four conditions. It is unnecessary to refer to this correspondence in detail. The only remaining condition was that the development must be completed by 18 May 2025. The last of the other three conditions (concerning secure cycle parking) was discharged on 6 November 2023.[15]The claimant says – and the defendant does not dispute – that the development was commenced in the period from 6 November to 31 December 2023. The exact date of commencement is not in evidence. The claimant did not submit a commencement notice. The conversion works at 32 Palace Court were done and the five residential flats created internally within 32 Palace Court. In March 2024, the physical boundaries of each flat were defined and each was given a number. The numbers were 1, 2, 3, 5 and 6. There was no flat number 4.[16]After commencement of the development, on 14 March 2024, flat 6 was sold to a Ms Alison Lusher for residential occupation. She made attempts over about a year from July 2024 to gain the attention of the defendant’s council tax service and of the Valuation Office Agency (each referring her to the other) with a view to becoming registered for council tax.[17]Energy Performance Certificate (EPC) inspections were carried out, of flat 5 on 2 May 2024 and of flat 3 on 4 June 2024. Flat 3 was sold on 21 June and flat 5 on 28 June 2024, each to a company related to the claimant. On 12 August 2024 an EPC inspection of flat 1 took place. On 23 August, flat 1 was sold to a private individual.[18]On 1 October 2024, the corporate owner of flat 3 granted an assured shorthold tenancy to a private tenant, for a one year term from ending on 30 September 2025. Flat 2 received an EPC inspection visit on 23 October 2024.[19]From 1 April 2025 (perhaps because it was start date of the new council tax commenced), the defendant’s council tax records later recorded that there were five flats at 32 Palace Court appearing on the list of properties registered for council tax purposes. It appears from later emails in August and October 2025 that the council tax records were updated to include the five flats. I infer that the registration may have been later and may have been retrospective to the start of the council tax year. The evidence is not conclusive on this point.[20]On 18 May 2025, the deadline came for completing the development (under the first condition of the prior approval decision). On 15 August 2025, Ms Boerkamp received information that the four EPC inspections at 32 Palace Court had taken place and the dates of those inspections. Ms Carmel Huntley, the defendant’s CIL officer, uploaded the title register for 32 Palace Court, from the Land Registry the same day. The only registered proprietor was the claimant. The title register described itself as a view of the register obtained from HM Land Registry showing the entries subsisting on 20 June 2024.[21]From 18 August, officers sought information about occupation. An officer from the defendant’s building control department, Mr Malcolm Gaiger, emailed the CIL officer on 21 August stating that works on the flats had finished but that the liable parties and dates needed to be established. The defendant evidently then decided the time had come to raise a charge for CIL in respect of 32 Palace Court. It did not enquire further into who the liable parties might be and what were the dates of, duration of and nature of occupancy of the flats.[22]On 22 August 2025, Ms Carmel Huntley, the defendant’s CIL officer, signed a Notice of Chargeable Development in respect of the change of use from office use to residential use at 32 Palace Court. The notice recorded the conversion to five residential flats for residential occupation.[23]On 28 August, the defendant issued CIL Liability Notice no. LN00006048 to the claimant, determining that the claimant was liable for CIL in the total amount of £294,959.75, made up of £253,349.08 for the defendant and £41,610.67 for “TFL”. It is common ground that this is a mistake and that the recipient should have been identified as the Mayor of London.[24]The same day, the defendant served on the claimant a Demand Notice (reference MAY0006717-LP016368), demanding payment of £380,326.30, comprising the unpaid £294,959.75, surcharges totalling £49,387.10 and late payment interest of £35,979.45, calculated from 7 March 2024, on the basis that the development was deemed to have commenced on 6 March 2024. In fact, it had commenced earlier, in late 2023, as we have seen. The Demand Notice contained the same error as the Liability Notice: “Transport for London” was wrongly named instead of the Mayor of London.[25]The surcharges (totalling £49,387.10) were supported by a separate Surcharge Notice also dated 28 August 2025, stating that the surcharges were for(i) failure to submit a notice of chargeable development (£2,500);(ii) late payment (30 days, £14,872.99)(iii) late payment (6 months, £15,616.64) and(iv) failure to assume liability (£16,397.47).[26]I pause to observe that in the claim form, the decision challenged is identified as the decision to issue the Liability Notice and the Demand Notice. In the statement of facts and grounds, the claimant states that it also challenges the decision to issue Notice of Chargeable Development and the Surcharge Notice.[27]On 24 September 2025, the claimant’s solicitors appealed against the surcharges, disputing the legal basis on which each of the four elements had been determined and disputing the calculations in respect of surcharge. The solicitors contended that “[e]ach of these surcharges is wrongly imposed” and gave detailed reasons why, in their submission, that was so. I do not need to rehearse those reasons here as they overlap substantially with the grounds of challenge in these proceedings.[28]On 9 October 2025, the defendant responded to the appeal in writing, in detail. Again, it is not necessary to set out the reasoning of the defendant in its response since it resembles its submissions in this judicial review, which I am to consider shortly. I understand the appeal has yet to be determined.[29]On 20 November 2025, in a delayed response to a query from the claimant, a Mr Ian Rennie of E&O, emailed the claimant, stating that E&O had been the owners of 32 and 34 Palace Court and had agreed in January 2021 to sell 32 Palace Court and separate the two buildings internally; and that from January 2021 “32 Palace Court became a separate building / planning unit with E&O continuing to occupy 34 Palace Court.”[30]On 24 November 2025, the claimant’s solicitor, Mr Daniel Farrand, sent the defendant a pre-action protocol letter seeking withdrawal of the Liability Notice and the Demand Notice. The solicitors signed the statement of facts and grounds (subsequently attached to the claim form) on 25 November 2025. The claim documents were lodged on 28 November and the claim form was sealed by this court on 1 December 2025.[31]The claim was supported by a witness statement from Mr Pantazis Therianos, the claimant’s director and shareholder, dated 28 November 2025. On 9 December 2025, Ms Woods left DP9. On 22 December 2025, the defendant filed its acknowledgment of service and summary grounds of defence, contesting the merits, asserting that the claim was out of time and that the claimant had suitable alternative remedies.[32]On 29 December 2025, the claimant filed an application for permission to serve a longer than normal reply to the summary grounds, supported by the (then draft) reply itself. At paragraph 44, the claimant (through Ms Colquhoun) stated:
“. It is a matter of agreed fact that the C did not receive the NCD until 28 August 2025 along with the other Notices. The C therefore did not know of the D’s decision despite it being dated 22 August 2025. Despite the D’s submissions, this is clearly relevant to any decision where it is argued that a challenge to such a decision is out of time. The C now that it is on notice of the D’s position will seek permission to issue the claim in respect of the NCD out of time. The C can clearly justify its actions.”
[33]I need not refer further to the procedural history, save to say that on 2 February 2026 the claimant did file an application for an extension of time if, which it disputed, one was necessary. It is unlikely that this application reached Mould J before he decided, on 11 February 2026, to grant permission. His preamble refers to having considered the application to file an extended reply but not to having considered the more recent and detailed application to extend time.[34]I should mention, lastly, that the defendant made a very late application on 6 July 2026, to rely on additional evidence in the form of a further witness statement from Ms Boerkamp, the defendant’s CIL officer, providing internal notes made by Ms Huntley at the time she made her decision to raise a charge for CIL. I looked at this evidence de bene esse, since the application to adduce it was strongly opposed. Having considered the issue, I am satisfied that this application should be refused. I disregard it for the following brief reasons.[35]First, the application is made very late, outside Mould J’s case management directions. It could and should have been made much earlier. The claimant has had no proper opportunity to respond to it. Second, it is second hand; it produces notes from Ms Huntley and in part speaks to her reasoning. Ms Huntley makes no statement herself. Third, the evidence adds to the defendant’s account of enquiries about 32 Palace Court. The sufficiency of those enquiries is in dispute and the claimant could be prejudiced by its lateness.

Legal Framework

[36]I refer to the statutory provisions as amended, unless otherwise indicated. As is well known, section 59 of the Town and Country Planning Act 1990 (the 1990 Act) empowers the Secretary of State to grant planning permission for specified classes of development. The Town and Country Planning (General Permitted Development) (England) Order 2015 (commonly known as the GPDO) grants planning permission for permitted development as set out in Schedule 2, subject to exceptions, limitations or conditions.[37]Many classes of permitted development require prior approval from the local planning authority. It is common ground that the development in this case was permitted development (under Class MA Part 3) as a change of use from office to residential accommodation; that prior approval was required; and that under the GPDO, permitted development in this class (by condition MA.2(5)) must be completed within three years of the prior approval date.[38]CIL was first introduced by Part 11 of the Planning Act 2008 (the 2008 Act). The Secretary of State was empowered to make regulations for imposing CIL. In making the regulations (by section 205(2) of the 2008 Act):
“the Secretary of State shall aim to ensure that the overall 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.”
[39]The relevant regulations are the Community Infrastructure Levy Regulations 2010 (the Regulations). By section 209(6) of the 2008 Act, they:
“must include provision for determining the time at which planning permission is treated as first permitting development; and the regulations may, in particular, make provision— (a) … (b) for permission be treated as having been given at a particular time in the case of general consents.”
[40]The Regulations are not for the faint hearted. They comprise 12 parts, 169 regulations and two schedules, with separate provisions for England and Wales. They occupied 356 pages of the authorities bundle (including the provisions that apply in Wales). I was therefore grateful for the accounts and extracts provided by counsel in their skeleton arguments and in the cases cited. I draw from those accounts the following brief points, omitting as much detail as I can.[41]In this case, I have already identified the defendant, i.e. the local authority where the development takes place, as the collecting authority for itself and the Mayor of London. CIL is payable in respect of “chargeable development”, i.e. “the development for which planning permission is granted” (regulation 9(1)). Where planning permission is granted by “general consent”, e.g. under the GPDO, by regulation 9(3): “the chargeable development is the development identified in a notice of chargeable development submitted to the collecting authority in accordance with regulation 64, or prepared by the collecting authority in accordance with regulation 64A”.[42]Before looking at regulations 64 and 64A, I note that regulation 8 deals with the time at which a planning permission “first permits development”. In an ordinary case, it is the date of grant of planning permission (regulation 8(1)).

(b) ):

“the day on which the last person is served with a notice of chargeable development in accordance with regulation 64A(3).”
[43]Regulation 64 applies where planning permission is granted “by way of a general consent” (64(1)). In such a case, before the development is commenced, “a notice of chargeable development must be submitted to the collecting authority …” (64(2)). The defendant relies on that provision as creating an obligation on the claimant to submit a notice of chargeable development. However, subparagraph (2) “does not apply to a development” in three cases.[44]The first is where the development is one to which regulation 42 applies (regulation 64(1A)(a)). Regulation 42 provides that CIL does not arise if the gross internal area of new build will be less then 100 square metres, unless it will comprise one or more dwellings. Second, the subparagraph “does not apply to a development … (aa) in relation to which no CIL is payable because an exemption for residential extensions was granted” (64(1A)(aa)).[45]The third case in which subparagraph (2) “does not apply” is that relied on by the claimant: it “does not apply … to a development … (b) in relation to which the chargeable amount, calculated under regulation 40, is zero” (64(1A)(b)).[46]Where a person has submitted a notice of chargeable development, the collecting authority may request further information or documents or materials which the collecting authority “considers relevant to assist it in calculating the chargeable amount” (regulation 64(8)).[47]Regulation 64A applies where three conditions are met: first, that planning permission is granted “by way of a general consent” (64A(1)(a)); second (64(1A)(b)), that “no notice of chargeable development has been submitted … under regulation 64(2)”; and third, where the collecting authority (64(1A)(c)) is of the view that:
“(i) the development has been commenced; and (ii) in relation to the development— (aa) the exemption conferred by regulation 42 does not apply; or (bb) the exemption for residential extensions does not reduce the CIL liability to zero.” (aa) the exemption conferred by regulation 42 does not apply; or (bb) the exemption for residential extensions does not reduce the CIL liability to zero.”
[48]In such a case, the collecting authority “must prepare a notice of chargeable development” (64A(2)). Further, by regulation 64A(3):
“The collecting authority must serve the notice of chargeable development on each person known to the authority as an owner of the relevant land, together with the liability notice served under regulation 65(3).”
[49]I pause to interject that the defendant points to certain non-statutory guidance from the Secretary of State, stating that while the developer need not serve a notice of chargeable development where (among other things) “the chargeable amount for the development is zero”, the same guidance goes on to state that “[n]ot providing a notice before commencing development will result in the CIL amount having to be paid immediately in full … .”[50]Regulation 65 governs liability notices. The collecting authority “must issue a liability notice as soon as practicable after the day on which a planning permission first permits development.” (65(1)). The liability notice must state the amount of CIL liability the authority says is due and the basis of liability.[51]By regulation 65(3)(a) to (c) the notice must be served on “the relevant person”; on any person who “has assumed liability to pay CIL”; and on “each person known to the authority as an owner of the relevant land”. By regulation 65(12), “the relevant person” means:
“(a) in the case of a general consent, the person who has submitted a notice of chargeable development;”
[52]By regulation 67, the developer must submit a “commencement notice” no later than the day before the day on which the chargeable development is to be commenced. Commencement means (by regulation 7(2)) “the earliest date on which any material operation begins to be carried out on the relevant land”.[53]The obligation to submit a commencement notice is subject to the same three exceptions as apply in regulation 64 (the regulation 42 exception, the residential extensions exemption and where the chargeable amount “calculated under regulation 40, is zero”).[54]Regulation 67 also states what the commencement notice must contain, including the intended commencement date. By regulation 67(2)(b) the commencement notice must “identify the liability notice issued in respect of the chargeable development.”[55]By regulation 68, the collecting authority must determine the “deemed commencement date” if (materially for present purposes) it has not received a commencement notice and has reason to believe the development has been commenced.[56]By regulation 71, the amount of CIL payable is due in full on the date stated in a commencement notice submitted by the developer or, if none has been submitted, on the deemed commencement date. There is a right under regulation 118 (exercised in this case) to appeal against the collecting authority’s deemed commencement date decision; the developer may contend that it was wrongly determined and it can be altered on appeal.[57]Under regulation 79, a collecting authority may, in carrying out its functions under the Regulations, use information obtained under any other enactment except where it was obtained by a committee in its capacity as a police authority, or where it was obtained by the authority in its capacity as employer. This means that the authority may make use of information such as council tax banding, EPC inspections or, I infer, the electoral register.[58]I now need to mention regulation 40 because it is said to determine when CIL is zero, as the claimant says it is in this case. But all regulation 40 states is that the collecting authority “must calculate the amount of CIL payable (chargeable amount) …. in accordance with the provisions of Schedule 1”. It is that Schedule which contains the detailed and complex calculation and formulae provisions. It is very long. I gratefully adopt the claimant’s summary, from Ms Colquhoun’s skeleton argument:
“54. CIL is measured principally by reference to an increase in floorspace as a consequence of development as reflected in the basis for the calculation set out in CIL Reg Sch 1 (by reference to CIL Reg 40). By s208(6) of the 2008 Act the amount of any liability for CIL is to be calculated by reference to the aforementioned first permits date . The CIL (the chargeable amount) is determined on the basis of charging rates set down in schedules issued by charging authorities (see s211 of the 2008 Act; CIL Reg 40 of the 2010 Regulations; and, generally, Part 3 of the 2010 Regulations). 55. The formulae in Part1 Sch 1 (4) and (6) allow for the deduction in the calculation of factor ‘KR’ (‘the aggregate of the gross internal areas’) of the sum representing the ‘retained parts of in-use buildings’ (see Sch1(7)) … The definition of an ‘in-use’ building is set out in Part 1 Sch1(10) ie ‘(i).. a relevant building’ which ‘(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.’ 56. It … need only be shown that the relevant building ‘contains a part’ which has been so used, it is not necessary for the whole building to be so used in order for the definition to apply.”
[59]Pausing there to return to this case, the claimant says the “first permits development” date is the date the Notice of Chargeable Development was served, i.e. 28 August 2025. The claimant says that at least part of 32 Palace Court was lawfully occupied for at least a continuous six months during the three year period from 28 August 2022 to 28 August 2025. The defendant cannot dispute this, on the evidence before the court.[60]This fact, says the claimant, leads to deduction from the “KR” calculation (“the aggregate of the gross internal areas”) of the sum representing the “retained parts of in-use buildings”. The claimant’s case is that the calculation produces a CIL liability of zero; essentially because, as it was put in Ms Woods’ email of 25 February 2021, “there is no uplift in floorspace.”[61]The defendant, for its part, accepts that (as stated in Mr Solimani’s skeleton argument):
“In cases where, as the developer claims here, the entire GIA [gross internal area] is retained in-use floorspace, the GIA value is zero, which means nil liability, given the applicable rate multiplied by zero yields zero.”
[62]The defendant then turns to the definition of deductible in-use floorspace. Retained or in-use floorspace is represented by the “KR” formula. In so far as relevant to this case, the definition is “retained parts of in-use buildings”. An “in-use building” means, as the parties agree, one containing at least a part that is in lawful use for a continuous six months during the three years ending on the “first permits” date.[63]I need to mention next paragraphs (8) and (9) in the Schedule 1 paragraph 1 provisions. They provide as follows: “(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. (9) Where the collecting authority does not have sufficient information, or information of sufficient quality, to enable it to establish—(a) whether part of a building falls within a description in the definitions of KR and E in sub-paragraph (6); or(b) the gross internal area of any part of a building falling within such a description, it may deem the gross internal area of the part in question to be zero.” (a) whether part of a building falls within a description in the definitions of KR and E in sub-paragraph (6); or (b) the gross internal area of any part of a building falling within such a description,[64]If no person has assumed liability to pay CIL (under regulation 31) and chargeable development has commenced, then by regulation 33(2) “[l]iability to pay CIL must be apportioned (using a formula in regulation 34 if there is more than one material interest) between each material interest in the relevant land”. A material interest is (by regulation 4(2)) either a freehold estate or a leasehold estate for a term expiring more than seven years after the “first permits” date.[65]Before apportioning liability, the authority may serve (regulation 35(1) and (2)) an information notice on an owner of relevant land, requiring the owner to provide information about his or her or its interest in the land or other information the authority considers relevant to apportioning liability.[66]By regulation 113, an interested person may, within 28 days from issue of a liability notice stating the chargeable amount, request a review of the chargeable amount by the collecting authority, done by a person more senior than the original decision maker. There is no restriction on providing evidence that was not before the original decision maker. But unless planning permission for the development is granted after the commencement of development (113(9A)), a review may not be sought once the development has commenced (113(9)(b)).[67]And by regulation 114, a person aggrieved in a review may appeal to the Planning Inspectorate on the ground that the chargeable amount, whether or not altered on review, has been calculated incorrectly. There is, again, no restriction on providing further evidence not previously considered. The appeal must be brought within 60 days from issue of a liability notice stating the chargeable amount. Again, unless planning permission for the development is granted after the commencement of development (114(3A)), a person may not appeal against a review decision once the development has commenced (114(3)). Issues, Reasoning and Conclusions Interpretation of the Regulations

Issues, Reasoning and Conclusions

[68]None of the four grounds of challenge directly asserts that the defendant misinterpreted the Regulations. Despite that, both parties treated the correct interpretation of the Regulations as a preliminary matter requiring the court’s attention before determining the grounds of challenge. I agree that it is necessary to understand and correctly interpret the statutory provisions, in their context, in order to determine the grounds of challenge.[69]The parties’ focus was particularly, though not only, on regulation 64(2) and the obligation it creates, in a “general consent” planning permission case, to submit a notice of chargeable development to the collecting authority; and on the third exception to that obligation, which disapplies paragraph (2) where the development is one “in relation to which the chargeable amount, calculated under regulation 40, is zero” (regulation 64(1A)(b)).[70]For the claimant, Ms Colquhoun submitted that regulation 64A gives the collecting authority the power to take issue with the first and second exceptions if it is of the view that the development has commenced, but not the third exception. She submitted that the authority did not have power under the Regulations to differ from the developer’s view that the third exception (the zero CIL exception) applies.[71]There is nothing in the statutory scheme or in any guidance relating to it, to indicate that the developer must obtain the authority’s agreement that the zero CIL exception applies, said Ms Colquhoun. The authority could later review whether CIL was chargeable but it could not veto the developer’s determination that the zero CIL exception applies. It follows, the claimant submitted, that if the development has commenced and appeal rights have thereby been lost, and the authority wrongly disagrees with the developer’s zero CIL determination, the appropriate remedy must be that of last resort, judicial review.[72]Ms Colquhoun invited me to reject the proposition that the collecting authority alone could determine that the zero CIL exception applies. If that were so, the exception would be “circular and otiose”. The exception would apply but only where the developer had treated it as not applying, which would be nonsensical. As she put it:
“The in-use test in Schedule 1(10) is an objectively expressed legal standard: either part of a building was in continuous lawful use for at least six months within the three-year window, or it was not. A developer is perfectly capable of applying that test to established facts of occupation.”
[73]Any residual ambiguity, the claimant says, should be resolved in its favour by reason of the contra fiscum principle applicable to taxing statutes. Ms Colquhoun referred me to well known cases articulating this principle. I bear them in mind but the issue here is not whether a tax is being levied without clear words in the statute to levy it. The issue is procedural: whether the developer must serve a notice even if it considers that the zero CIL exception applies.[74]The contra fiscum cases are not directly on point because the claimant (sensibly) does not say the developer’s decision that the zero CIL exception applies is a conclusive ipse dixit against CIL being chargeable. It accepts that the collecting authority can review and disagree with the claimant’s decision that no CIL is payable and that there may be cases where the developer’s view that the zero CIL exception applies is wrong and CIL turns out to be payable.[75]I should reject, said Ms Colquhoun, the defendant’s argument that the developer could not, until a notice of chargeable development is submitted or issued, know on what date development is first permitted under the general consent, i.e. it could not know the “first permits” date. Regulation 64(1A)(b) is “the very provision that exempts the developer from filing the NCD that would otherwise trigger that date”. The defendant’s argument would mean a developer entitled to benefit from the exemption could never safely invoke it.[76]For the defendant, Mr Solimani said the claimant’s interpretation was wrong. Regulation 64(1A)(b), enacting the zero CIL exception, “does not entitle a developer to forego filing an NCD where their zero calculation turns on the in-use deduction”. He argued that the exception applies where all factors relevant to the zero CIL calculation are known to the collecting authority as well as the developer and are capable of objective calculation without further enquiry.[77]He cited as examples a case where a full 100 per cent social housing discount has already been granted (pursuant to regulation 49); or other forms of relief from CIL have been granted under other provisions in Part 6 of the Regulations. Part 6 (which I have not set out in this judgment) is headed “Exemptions and Reliefs” and provides for relief from CIL in various circumstances. These are the territory of regulation 64(1A)(b), Mr Solimani submitted.[78]The claimant’s construction leads to insuperable difficulties, said Mr Solimani. The developer must (see 64(4)(b)) provide with the notice of chargeable development a plan of any building relevant to calculating “KR”. Further, without itself serving a notice, the developer could not know, in an “in-use deduction” case, whether the zero CIL exception would apply until it knows the “first permits” date which would be the date of the notice of chargeable development served by the collecting authority. That does not make good sense.[79]In my judgment, neither party’s submissions are wholly correct. I observe, first, that the notice of chargeable development, from whichever side it emanates, is intended to determine in a “general consent” case, the “first permits” date. The parties need to know that date. The developer needs to know it so that it can start the development, which may be a pressing concern since it must be completed within three years from prior approval. If the “in-use exemption” is in play, both parties may need to know the first permits date in order to establish whether the in-use exemption reduces CIL to zero or not.[80]Thus far, the legislative context would appear to support the defendant’s proposition that the zero CIL exception should apply only in cases where the collecting authority agrees, or is likely to agree, that it applies; such as cases where the in-use exemption is not in play at all, but other exemptions granted by the collecting authority itself are. However, that interpretation involves reading in a requirement that the collecting authority must agree with the developer that the zero CIL exception applies and that, unless it agrees, the exception does not apply and the developer is obliged to serve a notice.[81]The difficulty with that contention is that, as the claimant correctly submits, it is not consistent with the actual words of regulation 64. I see no basis for reading in, as a condition of applicability of the zero CIL exception, a requirement that the collecting authority agrees with the developer’s reliance on the in-use exemption. Regulation 64 determines the scope of the developer’s obligations and says nothing about the functions of the collecting authority. Those are found in regulation 64A, not regulation 64.[82]I think it is inescapable that regulation 64(1A)(b) places responsibility on the developer for deciding whether it, the developer, is of the view that the zero CIL exception applies. I cannot read that provision as making a notice mandatory unless the collecting authority agrees that one need not be served. Its views are relevant if and when regulation 64A comes into play. Its views do not determine the developer’s obligations under regulation 64. Thus, the developer may lawfully decide not to issue a notice if it considers that the zero CIL exception applies, regardless of whether the collecting authority concurs with that view.[83]Under regulation 64A, it is clear that the collecting authority must serve a notice of chargeable development if the developer has not served one, the development has commenced and neither of two exceptions applies (the gross internal area of new build being less then 100 square metres, unless it will comprise one or more dwellings; and where an exemption for residential extensions was granted). There is no exception to the authority’s obligation to serve a notice merely because it is aware the developer relies or may rely on the in-use exemption, even if it agrees that the in-use exemption reduces CIL to zero.[84]These observations amply justify Mould J’s comment, when granting permission, that the provisions are “not straightforward”. Indeed, they are awkward and do not fit together easily. A developer such as this one, confident that the in-use exception will produce zero CIL, may well be tempted not to issue a notice of chargeable development. The language of regulation 64(1A)(b) tends to encourage this course. It is counterintuitive to issue a notice indicating that a development is chargeable while of the view that it is not.[85]However, in my judgment a developer who decides not to serve a notice, in reliance on the zero CIL exception, takes certain risks if it does so without first satisfying the collecting authority that the in-use exemption does indeed or will indeed produce zero CIL. The collecting authority is in no way bound by the developer’s decision that the in-use exemption produces zero CIL. Indeed, it is bound under regulation 64A itself to serve a notice of chargeable development, which some might think tends to indicate the contrary.[86]The procedure ordained by regulation 64 and, where it applies, regulation 64A, is the start of a process for determining how much CIL, if any, is payable on commencement of the development. The developer’s view that no CIL is due may turn out to be wrong. If it has commenced the development, it loses important review and appeal rights. The collecting authority must act reasonably in the normal public law sense, but the powers it may properly exercise include deeming powers where there are gaps in its knowledge.[87]There is a power under regulation 68 to set the deemed date of commencement of development where no commencement notice has been served under regulation 67. The latter regulation is also awkward for the developer. The obligation to submit a commencement notice before commencing development is subject to the same three exceptions as apply in regulation 64, which I have just considered.[88]The analysis is the same. It is up to the developer whether or not to treat the zero CIL exception in regulation 67 as applicable. If it does so, it is not in my judgment acting unlawfully under the Regulations - aside from any contractual obligation - by not serving a commencement notice. But if the developer chooses not to serve one, it is plainly on notice that by regulation 68 the collecting authority may – indeed must – determine the deemed commencement date if it has reason to believe that the development has been commenced.[89]The second deeming power is that found in Schedule 1 paragraph 1(8) and (9). If the authority lacks sufficient information or information of sufficient quality, it may deem a relevant building not to be an in-use building. The third deeming power is that where the authority lacks sufficient information or information of sufficient quality to establish the matters in (9)(a) and (b) (whether part of a building falls within a description in certain defined terms in the formulae; and whether the gross internal area falls within such a description), the authority may “deem the gross internal area of the part in question to be zero”.[90]Deeming powers of this kind would be red flags to a well advised developer, even one confident its CIL liability should be zero; particularly where the developer decides to refrain from engaging with the collecting authority, decides not to serve a voluntary notice of chargeable development, does not issue a commencement notice and commences development, thereby losing valuable review and appeal rights.[91]While hindsight is a wonderful thing, it is now clear that the prudent course for a developer in the claimant’s position, who is confident that the in-use exemption will produce zero CIL, is:(1) to check with the collecting authority, before commencing development, that on the basis of the developer’s submitted plans, the authority agrees that the CIL payable will be zero, due to the in-use exemption;(2) if the authority does not agree, without obligation and voluntarily, to submit a notice of chargeable development, accompanied by a clear statement that the developer relies on the in-use exemption and says that CIL will be zero;(3) to submit with that notice a plan (see regulation 64(4)(b)) to make good the case for zero CIL under the in-use exemption (“any building … relevant for the purpose of calculating E or KR under regulation 40 and Schedule 1…”);(4) to proffer any further information, documents or materials which, under regulation 64(8), the authority may consider relevant to assist it in confirming that the CIL payable on commencement will be zero;(5) to include with the notice the anticipated commencement date and confirmation that a commencement notice under regulation 67 will be submitted before that date;(6) to elicit from the authority, if possible before commencing the development, written confirmation that the authority agrees, on the basis of the information it has, that no CIL will be payable;(7) if the development has not yet commenced and that agreement is not forthcoming, to seek a liability notice stating the CIL said to be due and to seek a review of that determination and if necessary to bring an appeal; and(8) if for good reason the developer urgently needs to commence the development without the comfort of a zero CIL determination, to explain to the authority why this is so and to reserve its rights, exceptionally, to bring a judicial review should the authority seek any CIL.[92]Where, as in this case, the developer does none of these things and does not engage with the collecting authority, the latter must exercise its CIL collecting functions as best it can, acting reasonably and lawfully in the normal public law sense. It must make whatever enquiries it is required in public law to make. It is in dispute whether it did so here. I will have to return to that dispute. The collecting authority must determine how much, if any, CIL is payable under the Regulations and it must also deal with other ancillary issues such as late payment, interest and any surcharge.

The first and third grounds: rationality and sufficiency of enquiry

[93]The claimant submits that the defendant was obliged to “conduct an investigation and a review of the evidence surrounding occupation and the nature of the development”, including identifying those with a material interest in 32 Palace Court or part of it. The information letters and emails sent to DP9 in March 2022 and April 2023 were deficient and insufficient, Ms Colquhoun submitted. Further, the claimant did not receive them; DP9 did.[94]The claimant complains that the defendant stopped investigating in August 2025 and abruptly switched to collecting CIL without proper regard to obvious signs that the flats, or some of them, had been sold and were likely to be occupied by the buyers. The claimant points to the “context specific” nature of the Tameside duty to make reasonable enquiries, citing the remarks of Hickinbottom LJ in Flintshire County Council v. Jayes [2018] EWCA Civ 1089, at [14].[95]In the third ground of challenge the claimant says the defendant acted “outside its powers” in issuing and serving the notices when it did. The defendant failed to reflect upon the fact that the development had been completed, not merely commenced, and that the flats were occupied. The claimant was not obliged under regulation 64A to issue the Notice of Chargeable Development and the Liability Notice if it was obvious that the amount of CIL payable was zero, even though regulation 64A does not expressly include that situation among the exceptions to the collecting authority’s obligation to issue those notices.[96]In the circumstances of this case, I do not find those arguments persuasive and prefer those of the defendant. The claimant is essentially reproaching the defendant with failing to uncover by detective work at public expense the information which the claimant neglected to provide to make good the in-use exemption and consequently show that no CIL was payable. The following points made by Mr Solimani support the proposition I accept: that the defendant did enough to perform its public functions as collecting authority lawfully.[97]Commencement of development is, as Mr Solimani says, a “watershed moment”. It crystallises the liability to pay CIL (regulation 31(3) and 33). It bars the right to a review by the collecting authority and an appeal to an independent expert tribunal. It is for the developer to establish that the building has been in actual use over the relevant six month period: R. (Hourhope Ltd) v. Shropshire Council [2015] PTSR 933, per HHJ David Cooke at [18] and [25]-[27]. This requires the exercise of professional judgment, as those passages show. Any actual occupation may be intermittent or transient, and so forth.[98]In a rationality challenge invoking the Tameside duty, the bar is especially high. The judgment as to the scope of enquiries is for the decision maker, not the court. The principles are set out in full in R. (Balajigari) v. Secretary of State for the Home Department [2019] 1 WLR 4647, per Underhill LJ at [70]. In the present context, there is no room for the Tameside duty to operate outside the Regulations, at common law. The obligations of the collecting authority are delineated by the Regulations.[99]They provide for the developer to provide evidence which the authority then evaluates. If the developer submits a notice under regulation 64, the authority can seek further information (64(8)). It has a discretion whether or not to do so. If the developer does not submit a notice, the authority must serve such a notice on each person known to it as an owner of the land. That is not a duty to track down the identity of owners the authority does not know about. Regulation 64A, unlike regulation 64, does not include an information gathering discretion. The Tameside duty should not introduce one by the back door.[100]The authority may make use of its deeming power in Schedule 1 paragraph 1(8) if it lacks sufficient information. In tax law more generally, the tax collector is not required to conduct investigations in determining tax liability but to evaluate evidence provided by the taxpayer. Thus, a trader may deduct VAT on business expenses but only if it proves it has incurred them; cf. section 73 of the Value Added Tax Act 1994; Van Boeckel v. Commissioners of Customs and Excise [1981] 2 All ER 505, per Woolf J (as he then was) at 508b and 511d-f; and Rahman (t/a Khayam Restaurant) v. Customs and Excise Commissioners [1998] STC 826, per Carnwath J (as he then was) at 834h-j and 835b-d.[101]I also accept that the defendant’s officers did enough to satisfy their obligations, even if they are measured by reference to the Tameside duty rather than by the provisions of the Regulations. The assertion of insufficient enquiry is often a disguised disagreement with the outcome on its merits. So it is here. The claimant could easily have made its case for nil CIL to the authority timeously and comprehensively. If it had done so timeously, it could have put in further evidence in a review or appeal if necessary.[102]As long as there is some evidence before the collecting authority, that authority need not conduct – and the public purse need not fund - extensive investigations to rescue the silent developer. Here, the defendant’s enquiries into ownership and occupation of 32 Palace Court were progressing up to mid-August 2025, but the enquiries made did not provide immediate and clear answers. There was clear evidence of conversion into five flats and of sale and likely occupation of some. But there was no clear evidence about the duration or nature of that occupation. The defendant was entitled to say “enough is enough”.[103]I do not find that Wednesbury unreasonable or in breach of any Tameside duty, given the high bar and the tax-collecting context. It is also relevant that the claimant’s agent DP9 received two written warnings about the need to engage with the CIL process as early as March 2022 and April 2023. I do not think the claimant can hide behind its agents’ omission to pass on those warnings. The defendant was entitled to regard DP9 as standing in the claimant’s shoes. The first and third grounds of challenge fail on their merits. I do not therefore need to address here the defendant’s further arguments founded on section 31(2A) and (6) of the Senior Courts Act 1981 (SCA 1981). I will consider the question of alternative remedies later in this judgment.

The second ground: apportionment

[104]The claimant points to the defendant’s duty under regulation 33(2): any CIL payable “must be apportioned between each material interest in the relevant land”. The authority may under regulation 35 serve an information notice on an owner to specify their interest and provide information relevant to apportioning liability. Ms Colquhoun submits that the defendant should have used this power to elicit the necessary information from the claimant itself.[105]It will not do, says the claimant, for the defendant to rely on its obligation under regulation 64A(3) and 65(3) to serve the notice of chargeable development and liability notice on “each person known to the authority as an owner of the relevant land.” The claimant submits that the Regulations must be read as a whole and that the defendant was on notice from its own council tax records that four of the flats were occupied.[106]The claimant further contends that the duty under regulation 33(2) to apportion liability, where nobody has assumed liability, must be performed as at the time the notice of chargeable development and liability notice are served – here, 25 August 2025 - and not the earlier time - here, in late 2023 - when the developer commences the development. As Ms Colquhoun put it in her skeleton:
“Commencement of development is not used as a trigger date for calculation of material interests in CIL Reg 33 or 4(2). Regulation 33 does state that it only applies to a "chargeable development". No chargeable development exists in relation to permitted development until an NCD is served under CIL Reg 64 or 64A. It does not apply until a chargeable development exists and it would be a stretch to then infer that the Charging Authority must look back in time to an earlier date. Indeed, CIL Reg 33 is only consulted at the point at which a Demand Notice is proposed to be served. The only reasonable and indeed the natural reading of the regulation is that it is assessed at that time.”
[107]The claimant submits that by August 2025, four of the five flats had been sold on long leases, creating separate material interests under regulation 4(2). Thus, Ms Colquhoun says, “[t]he D’s failure to identify those interests was a breach of the mandatory apportionment regime, not a consequence of it.” The reasoning also undermines the proposition that the development raises any liability for CIL, since evidence of occupation and use points in the direction of the in-use exemption applying, as argued under the first and third grounds.[108]The defendant’s answer is that liability to pay CIL crystallises on the commencement of development. Commencement of development and not service of a liability notice, fixes liability to pay CIL: see LB Lambeth v. Secretary of State for Housing Communities and Local Government [2021] PTSR 1606, per Thornton J at [67], citing Swift J’s decision in R. (Oval Estates (St Peter’s) Ltd) v. Bath and North East Somerset Council [2020] PTSR 861, at [33]-[34].[109]Mr Solimani then points out that here, the claimant’s was the only known interest in 32 Palace Court as at late 2023 when it commenced development; there were then no other material interests in the land and, therefore, none known to the defendant at that time. Therefore, there is no basis for any apportionment and no mechanism under the Regulations for transferring a crystallised liability to pay CIL to another person who later acquires a material interest in the relevant land. That is just as well, he says; otherwise, unsuspecting buyers could be unfairly saddled with unexpected tax liabilities.[110]The purpose of regulation 33(2), he submits, is that where no one else has assumed liability, liability falls on those who own the land at commencement; they, after all, are the parties likely to profit from the development. It is for the property development market to determine whether the cost of CIL liability is factored into pricing in the negotiations to acquire the land for development. The defendant cannot do other than raise CIL from the owner at the time the development commences.[111]Again, I prefer the defendant’s submissions and I accept Mr Solimani’s interpretation of regulation 33. That interpretation has the virtue of clarity, simplicity, coherence and producing a fair result. The second ground of challenge does not succeed for the following brief reasons. I also accept his submission that there is no mechanism under the Regulations for transferring a crystallised liability to pay CIL to another person who later acquires a material interest in the relevant land.[112]The claimant’s construction of regulation 33 is not mandated by the statutory language. The defendant’s interpretation is at least permissible on the language used and the claimant’s would conflict with the undeniable proposition that CIL liability does crystallise on commencement and not on the taking of a procedural step such as issuing a notice of chargeable development or a liability notice. Those documents state what is or will be, in the collecting authority’s view, the result of commencing development. They do not create a liability where none existed before they were issued and served.[113]Next, where a person has assumed liability to pay CIL, that person becomes liable to pay any CIL due on the commencement of development: regulation 31(3) and see Oval Estates per Swift J at [34]. By the same reasoning, if no one has assumed liability, the owner or owners of the land at the time development commences must likewise be the party or parties liable to pay it; see regulation 33(1) which applies “where a chargeable development is commenced ….. .”[114]There is nothing unfair or inequitable about that result. It places responsibility for paying CIL on the party likely to benefit from the development. It may be recalled that section 205(2) of the 2008 Act requires the Secretary of State to ensure that the “overall 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”.[115]The claimant’s construction, by contrast, would create distortions in the statutory regime. The search for multiple owners would have to continue after commencement and, as this case shows, after sales to buyers who are likely to be unaware (unless they are unusually inquisitive and perspicacious) they will have a tax liability (beyond stamp duty land tax which is familiar to buyers).[116]Moreover, the burden of that tax may fall unevenly amongst purchasers of parts of a development. The defendant here might have identified, say, Ms Lusher who purchased one of the flats and made herself visible to the defendant’s council tax officers through the fortuitous circumstance of her diligence in seeking to become registered for council tax. Other flat purchasers were less visible and more digging might have to be done to unearth them. Or, they might simply be fortunate enough to purchase their flat after all the CIL has been paid, giving them a lucky windfall compared to their predecessor buyers.

The fourth ground: error on face of Liability Notice

[117]I come to the fourth ground, which concerns the admitted error on the face of the Liability Notice and the Demand Notice. Both those notices mistakenly referred to Transport for London (TfL or, as in the two notices, TFL) as the recipient of part of the CIL payable. The true recipient would be the Mayor of London. The question is whether the error invalidates the two notices or not. The claimant submitted that the error was to name the wrong charging authority, that the error was material and that it invalidated the two notices.[118]Ms Colquhoun submitted that the position was analogous to that in LB Hillingdon v. Secretary of State for Communities and Local Government [2018] EWHC 845 (Admin), in which Martin Rodger QC (sitting as a deputy judge of this court) dismissed Hillingdon’s claim for judicial review of a planning inspector’s decision to treat the developer’s time for appealing as running from the date of a compliant liability notice, having earlier served a defective one which, if valid, would mean the developer’s appeal was out of time.[119]After referring to well known authorities including Lord Steyn’s speech in R. v. Soneji [2005] UKHL 49, Mr Rodger QC asked himself the question at [58] “what the framers of the regulation or requirement intended the consequence of non-compliance to be”. He explained that this issue would be approached on an objective basis and was not dependent on the subjective knowledge or behaviour of an affected individual. And at [59]-[60] he said:
“59 If a notice is required to inform a party of its rights of appeal and does not do so, the giver of the notice cannot, in my judgment, complain if the party does not appeal there and then but waits until a compliant notice is received. Nor can the giver of a defective notice say that a knowledgeable or professionally advised party may be taken already to be aware of the existence of a right of appeal, or other information required by the Secretary of State’s prescribed form, so that its omission is immaterial. … Nor can a form which entirely omits a relevant piece of information be said to have substantially the same effect as a form which requires that information to be provided. 60 Clear information concerning the amount of the surcharge is also necessary to ensure that the right to appeal against the calculation of that amount conferred by reg.117(1)(c) is effective. …. Regulation 69(2)(e) requires that the notice itself should state the amount payable, including surcharges and interest. That is not a difficult requirement to satisfy, and both its fundamental importance and its inclusion as a separate item in the list of requirements make it unlikely that Parliament intended there to be any room for any ambiguity.”
[120]Ms Colquhoun noted that the defendant had undertaken to amend its digital template for such notices so as to correct the error. She submitted that this did not cure the defect in the present case. The defendant did not offer to serve fresh notices correcting the error in this case. If it were to do that, it would have to use its updated knowledge including the clear evidence it now has that the in-use exemption applies and that no CIL is payable.[121]For the defendant, Mr Solimani relied on R (Braithwaite) v. East Suffolk Council [2023] PTSR 832, in which the Court of Appeal dismissed an appeal against refusal of permission to bring a judicial review of a revised liability notice served by the collecting authority after accepting that an earlier one had not complied with two requirements in regulation 65. The court upheld Lang J’s refusal of permission.[122]Sir Keith Lindblom SPT (giving the judgment of the court) held that although the earlier notice had ceased to have effect under regulation 65(8) upon service of the second notice, the legal effect of the second notice was to suspend the legal effect of the earlier notice, which remained legally valid unless and until quashed by the court; that the earlier notice was therefore the proper target of the judicial review; and that it was therefore brought long out of time.[123]Referring to the same line of authorities including R. v. Soneji, he referred to the question identified by Lord Steyn at [23]: whether Parliament can fairly be taken to have intended total invalidity. The answer in the case before the Court of Appeal was that it could not be taken to have intended that result. Mr Solimani submitted that the position is the same here: the nature of the breach of procedure in the present case was such that Parliament cannot be taken to have intended that it rendered the two notices invalid.[124]Mr Solimani submitted that the CIL collected for the Mayor of London is routinely passed to TfL:
“[t]he Mayoral CIL is collected to be passed on to TfL, and the Council has always accepted that the notice should record the Mayor as the recipient”
. There is no “clear legal error” in the notices. The error has no impact; it does not alter the quantum of CIL liability or otherwise prejudice the claimant. Even if the error was material, applying SCA 1981 section 31(2A) the outcome would have been the same for the claimant had the conduct complained of not occurred, i.e. if the Mayor had been named instead of TfL.[125]In my judgment, the error on the face of the two notices was not material, in the sense that it should lead to total invalidity. I do not think that Parliament can have intended that the two notices would be totally invalid if one of the charging authorities should be mis-identified. The facts here are not on all fours with either the Hillingdon case or the Braithwaite case. They are slightly closer to the position in Hillingdon but with the crucial difference that the error clearly falls the other side of the line from the errors in Hillingdon.[126]In that case the developer would suffer real prejudice and lose valuable appeal rights if the defects in the earlier of the two notices at issue were not treated as invalidating the earlier notice. In the present case, the wrong identification of TfL as the recipient of part of the CIL payable has had no prejudicial impact on the claimant whatsoever. It does not alter the amount of CIL due or the merits of attempts to defeat the imposition of CIL upon it in these proceedings.[127]I also accept that were the error material and thus would have invalidated the notices, had the error not been made, i.e. had the conduct complained of not occurred, the outcome for the claimant would, it is highly likely, not have been substantially different. Had the two notices named the Mayor instead of TfL, the claimant still have been charged CIL in respect of the development in exactly the same way and to exactly the same extent.[128]This would therefore be a paradigm case for refusal of relief under SCA 1981 section 31(2A), if it were necessary to consider that issue. In any case, for those reasons, the fourth ground of challenge does not succeed. It follows that the claim for judicial review as a whole fails on its merits.

Available alternative remedies?

[129]For completeness, I should consider the additional point raised by the defendant that this judicial review should not be entertained because the claimant has, or rather had, appropriate available alternative remedies, namely the review and appeal rights under regulations 113 and 114 respectively. Mould J stated in the observations that followed on from his order and case management directions that he had “not been persuaded that the Defendant’s arguments on delay and alternative remedy justify the refusal of permission.”[130]As already noted, it is common ground that the claimant enjoyed those rights up to commencement of development and lost them on commencement. The claimant submitted, first, that an inspector on an appeal may not quash a notice of chargeable development; only a judicial review court can do that (see the Braithwaite case, per Sir Keith Lindblom SPT at [52]).[131]Ms Colquhoun submitted that the two informative letters to DP9 in, respectively, March 2022 and April 2023 were not adequate to put the claimant on notice that it would lose its review and appeal rights if it were to commence development. The former, she said, only referred to the development as being “potentially liable” for CIL and contained errors in describing the process. The latter did not reach the claimant because Ms Woods of DP9 did not pass it on.[132]Mr Solimani for the defendant submitted that Mould J did not decide the issue of alternative remedies; he only observed that he was not persuaded by the defendant’s submissions on that issue to refuse permission. I agree that his observations do not shut out the defendant from raising the issue; he did not decide it substantively in the claimant’s favour, nor could he have done. The claimant did not contend that his observation on alternative remedies binds me.[133]I agree with the defendant’s submissions on this issue. The matter is relatively simple. Judicial review is a remedy of last resort. The claimant was on notice through its agents, DP9, that the development was potentially liable for CIL. The claimant cannot complain that the agents failed to pass on to them the warnings about CIL. That is a matter between the claimant and DP9, which does not concern the defendant. The claimant decided to commence development before CIL had been addressed. It did so at considerable risk to itself, as I have explained above.[134]I have some sympathy with the claimant because of the unclear drafting in regulations 64 and 64A. However, the claimant could have addressed that by engaging with the defendant on the issue of CIL before commencing development. I do not think the difficult wording of the zero CIL exception is by itself sufficient to bring the case within the exceptional category of cases where (per Swift J in Oval Estates at [37]-[40]) judicial review is permitted despite the existence of the right of appeal under regulation 114.[135]There is no evidence that the claimant was constrained to commence the development expeditiously because of its financial position; or because of time pressure to complete the development within three years of the prior approval date, i.e. by May 2025. As to the latter point, the claimant could have sought a CIL determination from the defendant at any time after 18 May 2022, the prior approval date. It would have had time to exercise review and appeal rights between May 2022 and late 2023 when it commenced development.[136]For those reasons, if the claim for judicial review had not failed on its merits, I would have dismissed it anyway on the ground that the claimant had a suitable and adequate alternative remedy, namely appeal to an expert tribunal with power to alter the defendant’s determination and calculations. There was no need for the remedy of last resort to be invoked.

Delay and discretion to withhold relief

[137]The parties debated in some detail in their skeleton arguments and oral submissions whether the claim was out of time and, if so, whether time should be extended. This included arguments about the status and standing of Mould J’s observation that he was unpersuaded that “the Defendant’s arguments on delay …. justify the refusal of permission.”[138]The defendant noted that on 22 August 2025 Ms Huntley signed the Notice of Chargeable Development. That, said Mr Solimani, was the date grounds first arose and started the clock running. The claim documents were lodged on 28 November 2025 and the claim form sealed by this court on 1 December 2025. The claim was not brought promptly or within three months from when grounds first arose, Mr Solimani submitted.[139]He further submitted that there was detriment to good administration because of the impact on finality in public decision making and its relevance to local authority finance. The extension of time application had not been determined and should be refused, he submitted.[140]The claimant submitted that Mould J had already determined that the claim was not to be dismissed on time grounds. Ms Colquhoun submitted that the issue was closed as a result of Mould J’s observation, applying the fourfold test in R. (Lichfield Securities Ltd) v. Lichfield District Council [2001] EWCA Civ 304, [2001] PLCR 32, CA.[141]I do not find it necessary to engage in detail with these arguments. I would be inclined to regard Mould J’s observation on timing as not shutting out the defendant from arguing that the claim was not brought promptly and is out of time. I think he was only addressing the issue as one affecting permission. He did not make a positive finding that the claim was brought in time. Still less did he grant an extension of time; indeed, it is doubtful that the claimant’s application to extend time was before him. His remarks were under the heading “Observations” and did not form part of his order.[142]However, I would grant the short extension of time, were it necessary to do so. While technically grounds for the claim first arose on 22 August 2025, the claimant was not aware of that until six days later. I do not see any detriment to good administration or other prejudice to the defendant or to the public finances or to third parties resulting from the short delay between 22 November 2025 and 1 December 2025. In the event, I do not see any need formally to determine the claimant’s application to extend time.

Disposal

[143]For those reasons, the claim is dismissed. The parties are asked to provide an agreed draft order for my approval. I will deal with any contested consequential matters by way of brief written submissions. I am grateful to counsel for their clear and eloquent submissions.