Community Infrastructure Levy

January 30th, 2019 by James Goudie KC

On the requirement for substantial compliance by a notice for exemption from the levy, see R (Shropshire Council) v SoS (2019) EWHC 16 (Admin). The decision of the Court of Appeal in R v SoS, ex p Jeyeanthan (2000) 1 WLR 354 was distinguished.  The Judge said:-

“29. Jeyeanthan helps to answer the question what is to happen if a person undertaking a particular act has failed to comply with all the requirements prescribed for that act. But that can be a relevant question only if the actor has actually engaged in the regulated conduct. If the path of compliance has not, so to speak, been trodden at all, there is likely to be little scope or need for analysis of error or omissions in attempted or partial compliance.30. The crucial authority on this point is the decision of the Court of Appeal in R (Winchester College and another) v Hampshire County Council [2008] EWCA Civ 431 (“Winchester”). …”

“33.   Winchester was followed in Maroudas v Secretary of State for the Environment, Food and Rural Affairs [2010] EWCA Civ 280, …

34. In R (Trail Riders Fellowship and another) v Dorset County Council [2015] UKSC 18 the Supreme Court heard argument some of which was concerned with whether Winchester and Maroudas were rightly decided. In the event the Court did not need to reach a view on that. Doubts were expressed by Lord Carnwath JSC …

35. But there can be no doubt that his observations were obiter; … It is … particularly worthy of observation that Lord Neuberger PSC, together with Lord Sumption and Lord Toulson, specifically disagreed with Lord Carnwath on this point and endorsed the view taken by Dyson LJ in Winchester.

36. It follows that Winchester remains binding on this Court. …”
37. In my judgment, a provision of the Regulations, which received scant attention in the submissions before me, places the present case in the same frame as Winchester. It is the provision to which I have already referred in reg 2: “commencement notice” means a notice submitted under regulation 67. … On the ordinary meaning of the words it is extremely difficult to draw a conclusion other than that a notice that does not comply with the requirements of reg 67 (as to both content and timing) is not a commencement notice at all for the purposes of the Regulations.

38. That conclusion would, I think, have been tempting even in the absence of authority: given the binding force of Winchester it is compelling. …”

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