Why timing matters when challenging CIL liability

A recent High Court decision serves as a reminder of the importance of acting swiftly where there are concerns about a CIL liability notice.

The case concerned a former HSBC bank in Swindon that was converted to residential use. The developer argued that the building qualified as an “in-use building”, meaning that existing floorspace should have been deducted from the CIL calculation.

The developer provided evidence in support of its position. However, the Council concluded that the evidence was insufficient to demonstrate the requisite six months’ continuous lawful use. The Council agreed to extend the period for submitting further evidence, and it repeatedly reminded the developer of the statutory deadlines for requesting a review and bringing an appeal under Regulations 113 and 114. The developer neither provided sufficient evidence within the relevant period nor requested a review under Regulation 113.

More than two years later, the developer sought to rely on additional evidence, including a Valuation Office Agency (VOA) appeal decision involving another bank and further evidence relating to the operation of the building. The developer argued that the Council was required to issue a revised liability notice under Regulation 65(4) or alternatively, exercise its discretion under Regulation 65(5). Regulation 65(4) provides that a collecting authority must issue a revised liability notice where the chargeable amount changes, whilst Regulation 65(5) gives a collecting authority the discretion to issue a revised liability notice at any time.

The Court rejected the claim. It held that Regulation 65 does not provide a mechanism for developers to revisit CIL calculations whenever further evidence emerges. Instead, Regulation 65 must be read alongside the statutory review and appeal procedures in Regulations 113 and 114, which contain strict deadlines and are intended to provide certainty for both developers and collecting authorities.

Importantly, the Court found that the evidence relied upon was not truly “new” and could have been obtained and submitted during the original review period. The Court was critical of the developer’s failure to do so, stating:

“There is nothing to explain why the information in them could not with reasonable diligence have been adduced in connection with a request for a review under regulation 113.”

The judicial review also failed because it had been brought out of time. The Court confirmed that ongoing correspondence with the council could not create a fresh decision capable of extending the time for challenge.

Developers should review CIL liability notices immediately and seek advice as soon as possible if the liability appears incorrect.