The Community Infrastructure Levy and GPDO development

In R (Herod Property Ltd) v Westminster City Council [2026] EWHC 2122 (Admin) the High Court, by a decision of Sir Timothy Kerr, has dismissed all four grounds of challenge brought by Herod Properties Ltd against the decision of Westminster City Council, who deemed them solely liable for c. £380,000 of CIL liability for their change of use of an office to residential flats.

The case is understood to be the first to deal with the application of CIL to GPDO development and a developer’s obligations where they appear to have a nil liability, the first to determine when liability crystallises under Regulation 33 and whether liability can be passed on to subsequent purchasers of land, and the first CIL case in which a claimant has been found to be disbarred from judicial review, due to voluntarily abandoning their statutory appeal rights on commencement (applying the approach mooted in Oval Estates). 

The case also raises general points of interest in JR and procedure, including:

• Whether an agent failing to pass on a notice from a public decision-maker means the person can be treated as having no knowledge of the notice; 
• The application of the Tameside duty to a decision-making procedure concerned with evaluating the sufficiency of evidence; 
• The effect of a determination on the papers that delay and adequate alternative remedies do not justify refusal of permission for JR, and whether those matters can nevertheless still be determined by the judge at the substantive hearing;
• The application of the adequate alternative remedy doctrine, and whether a person can seek JR where they have lost their statutory appeal rights by their own volition.

Background

The Claimant developer had changed the use of an active office building to high-value residential flats under the GPDO. Changes in use of a building which create no new floorspace typically are not liable for CIL, if some part of that building was recently in use (and specifically, has been in active use for six continuous months in the past three years).

Accordingly, the developer took the view they had no CIL liability, and therefore relied on Regulation 64(1A)(b), which entitles a developer not to file a Notice of Chargeable Development or Commencement Notice where the development's CIL liability "is zero".

Notably, the NCD is the document which tells the collecting authority that the development building was (in the developer's view) previously in-use, and which is supposed to be accompanied by evidence demonstrating that use. The developer had therefore not told the collecting authority the building was in-use or provided any evidence to that effect. 

The Claimant then commenced development and completed development, and indeed sold the flats to residents, without informing the collecting authority of their development's commencement.

Several years later, Westminster, the relevant CIL collecting authority, became independently aware of the development's commencement (and indeed completion). By Regulation 64A, it was obliged to issue its own NCD (hereinafter the “remedial NCD”) because the developer had not filed one. That process required Westminster to decide if the building was in-use or not. Crucially for this appeal, a deeming power found in Schedule 1 paragraph 1(8) of the Regulations provides that if the collecting authority lacks sufficient information or information of sufficient quality, it may deem the building not to be an in-use building.

Because the three-year window for being 'in-use' begins with the date that either the developer files the NCD or the collecting authority files the remedial NCD, the Council had to ask itself whether the building was in use in the three years prior to its remedial NCD being issued in late 2025. Perhaps surprisingly, that meant the building would be 'in-use' if it was being recently used as residential flats (i.e. the very development for which prior approval had been granted). 

The Council found that whilst it appeared five flats had been created, there were no council tax records demonstrating active occupation, and the Land Registry document indicated the Claimant had the only legal interest in the land (though other unspecified applications were pending on the register). Accordingly, the evidence was not sufficient to demonstrate the building was in-use, and so Westminster deemed the building not to be in-use. Resultingly, full CIL liability was due, and liability and demand notices to that effect were issued alongside the remedial NCD.

The Claimant challenged the validity of these notices, and permission was granted on the papers by Mould J. 

Judgment

The Claimant advanced 4 grounds of challenge. Ground 1 contended that it was Tameside irrational for the Council to deem an in-use building not to be an in-use building without seeking further information from the developer or public records about its use. Ground 2 contended that even if that decision was valid, properly construed Regulation 33 required the CIL liability to be apportioned on the flat purchasers (and not on the Claimant developer). Ground 3 contended that the remedial NCD should have been issued much sooner. Ground 4 contended that the liability notice was invalid because it mistakenly recorded itself as collecting Mayoral CIL for TfL. 

The Court began by resolving a preliminary issue that went to a number of the grounds, which was the effect of Regulation 64(1A)(b), and whether the developer was legally entitled not to file an NCD, and what the consequences of failing to file were. This provision states that the obligation on a developer to file an NCD does not apply to a development “in relation to which the chargeable amount, calculated under regulation 40, is zero”.

The Court found that whilst a developer is entitled to determine for itself that its liability "is zero" and so not file an NCD, it runs a risk in so doing, because the collecting authority may subsequently disagree, and may find there is a liability after development has commenced and appeal rights have been lost (J/85). The deeming powers the collecting authority has over determining whether or not the building was in-use, among other things, are "red flags" to developers not to assume their view on the development's liability will be shared by the collecting authority (J/90).

Accordingly, the Judge gave helpful and detailed guidance as to how developers should navigate such situations (J/91). The essential point is that some agreement should be sought from the collecting authority about the liability before commencing development to obviate risk.

As to the grounds, the Court dealt with Grounds 1 and 3 together. On Ground 1 the developer argued that the Council had breached the Tameside duty in deeming the building not to be in-use without contacting the developer to confirm whether it was in-use or undertaking more detailed and costly Land Registry checks. It was argued that given five flats had been created it should have been obvious to the Council that it was likely people were living in the flats and therefore that the building was in-use and attracted no liability. 

The Court disagreed. It said that:

"... 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." (J/96). 

In dismissing Grounds 1 and 3, the Court accepted the following submissions from the Council:

• The bar is "especially high" in a Tameside challenge, and the Court accepted the Council's submission that the Tameside duty had no real application to a decision of this kind, which required the decision-maker to assess the sufficiency of evidence before it, not to undertake an investigation (J/98); 
• The Tameside duty cannot accordingly introduce an investigatory discretion (let alone duty) by the back door, when the legislature has not provided for one (comparing and contrasting Regulation 64 and 64A) (J/99);
• The Court accepted the Council's invitation to apply by analogy jurisprudence in the similar context of VAT, where HMRC has been held not to be obliged to conduct an investigation where it needs to deem a person's liability due to incomplete returns (J/100);
• In any event, the Court found that the high threshold for Tameside irrationality had not been met - the Council had checked the records reasonably available to it, and this was in reality a dressed-up merits challenge (J/101–103). 

The Court also resolved a point about service of documents on agents which are not passed on, which is of general application. The Council had in fact warned the developer, before commencement, that it considered the development was liable for CIL. It sent that warning to the Claimant's planning agents, who neglected to pass it on to the Claimant, and the Claimant therefore argued it had no knowledge of this warning. The Court agreed with the Council that the "claimant [cannot] hide behind its agents’ omission to pass on those warnings." (J/103). Though not cited to the Court, in this regard, the deemed service provisions under Regulation 126 are likely to be relevant (and see also the recent case of Berow v Maidstone Borough Council [2026] EWHC 635 (Admin), in which I successfully appeared for the defendant Council alongside Gary Grant). 

On Ground 2, the Claimant relied on regulation 33 ("Default liability"). It provides that:

“33.—(1) This regulation applies where a chargeable development is commenced in reliance on planning permission and nobody has assumed liability to pay CIL in respect of that development.

(2) Liability to pay CIL must be apportioned between each material interest in the relevant land.”

The Claimant argued that the requirement the CIL “must be apportioned between each material interest in the relevant land” meant that when the Council issued its liability notice, it had to apportion liability between the existing material interests, which were the flat purchasers. This would have the result of placing the CIL liability entirely on the purchasers, and not at all on the Claimant developer. 

The Court rejected this:

"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." (J/111). 

The reasons were essentially that:

• The statutory language does not mandate the Claimant's approach and the Council's reading was a viable one. The Claimant's approach conflicts with the established principle that it is not the issuing of the liability notice which creates a liability, because it presumes that a liability arises when the collecting authority comes to determine liabilities (J/112);
• What crystallises a liability is commencement, as under Regulation 31, and the Regulations do not suggest a different approach should be taken just because nobody has assumed liability (J/113);
• That result is fairer, because it places responsibility for paying CIL on the party likely to benefit from the development (J/114);
• The Claimant's reading would have the effect of placing the burden on unsuspecting purchasers and indeed only on the purchasers who are identifiable by the collecting authority, which "would create distortions in the statutory regime" (J/115). 

As to Ground 4, the Council accepted that its liability notice erroneously stated that Mayoral CIL was being collected for TfL, who is not a collecting authority under the Regulations. In reality, the MCIL was being collected to pass on to TfL to support the Crossrail 1 project. 

The Court accepted (J/125) the Council's argument that the error was immaterial and therefore could not result in total invalidity, applying the remarks of Sir Keith Lindblom in R (Braithwaite) v. East Suffolk Council [2023] PTSR 832 (a case in which I served as Sir Keith's Judicial Assistant). The reality was the error changed nothing about the Claimant's liabilities or the decision. 

The Court also found for the same reasons that this was a "paradigm case for refusal of relief under SCA 1981 section 31(2A)" (J/128). 

For those reasons, all four grounds of challenge were dismissed. 

The Court then went on to consider the Defendant's submission that the Claimant had an adequate alternative remedy, being their statutory appeal rights under Regulation 113 and 114. 

The Claimant argued that Mould J had already determined this issue conclusively, having noted in his observations granting permission that he had “not been persuaded that the Defendant’s arguments on delay and alternative remedy justify the refusal of permission.”

Substantively, the Claimant's position was that because they lost their statutory appeal rights on commencement, they had no means of appealing a post-commencement decision on liability, and it would be wrong for a post-commencement decision of collecting authorities to essentially be non-justiciable. 

The Court agreed with the Defendant that Mould J had not closed off the issue of alternative remedies. The Court then agreed that there was an adequate alternative remedy, relying on the approach mooted in Oval Estates (St Peter’s) Ltd) v. Bath and North East Somerset Council [2020] PTSR 861 at [37]-[40]. There, Swift J found that a claimant who has commenced will generally only be entitled to JR if the collecting authority has compelled commencement before liability has been calculated (i.e. by the authority's unreasonable delay). That had not happened here - commencement was entirely voluntary. Accordingly, the Claimant had no entitlement to seek JR in any event.

Armin Solimani is a barrister at Francis Taylor Building. Armin acted as sole counsel for the successful defendant council.