A CIL commencement date appeal against Croydon Council has succeeded, but the associated surcharge was not quashed. The appointed person found that the council had used the wrong deemed commencement date for development subsequently authorised by retrospective planning permission under section 73A.
Ken McEntee issued the decision on 12 November 2026 under Regulation 118 of the Community Infrastructure Levy Regulations 2010. The council had recorded 17 April 2020 as the date development commenced. The correct date, on the facts of this appeal, was 13 September 2024, when the retrospective permission was granted.
The CIL commencement date matters because it governs the timing of the levy and the validity of the council’s demand notice. The outcome shows that correcting an unlawful demand notice does not automatically cancel a surcharge arising from a failure to follow the commencement notice procedure.
Why the CIL commencement date was incorrect
The council’s demand notice, issued on 22 October 2025, treated development as having commenced on 17 April 2020. That date related to the earlier planning history. The appellant challenged its use under Regulation 118, which allows an appeal against a wrongly determined deemed commencement date.
The relevant later planning permission was retrospective, granted under section 73A of the Town and Country Planning Act 1990 on 13 September 2024. The distinction was crucial. The CIL commencement date for this permission could not simply be carried across from the date originally used for works associated with an earlier consent.
Regulation 7(2) normally treats development as commencing when the first material operation begins on the relevant land. But that general approach is expressly qualified. Regulation 7(5)(a) deals with works which have already been carried out and then obtain retrospective permission under section 73A.
In that situation, the appointed person explained, the general rule in Regulation 7(2) is displaced
. Rather than using the date on which the works physically began, the relevant commencement date was the date of the subsequent retrospective permission.
The appellant therefore succeeded on the particular ground of appeal: the collecting authority had stated an incorrect deemed commencement date in the demand notice. That was a legal error about the relevant permission, not a general ruling that retrospective work is exempt from the levy.
What happens to a demand notice after a successful appeal?
A successful Regulation 118 appeal has a defined statutory consequence. Under Regulation 118(4), demand notices issued in respect of the development before the appeal was allowed cease to have effect. The decision therefore invalidated the demand notice, rather than automatically extinguishing the underlying levy liability.
McEntee identified 13 September 2024 as the correct CIL commencement date and stated that Croydon would need to issue a revised demand notice if it wished to continue pursuing the levy. The relevant procedural requirement is found in Regulation 69(4).
This matters for anyone handling a disputed CIL account. A demand notice may be defective because the authority has applied the wrong commencement date, but that does not, without more, answer whether any charge is properly payable or whether the authority can take the next lawful step.
Planning Geek’s guide to CIL liability notices and demand notices explains the different functions of these documents. The distinction is particularly important where development has changed between the original planning permission and a later regularising consent.
Why the surcharge survived
The demand notice also included a surcharge for failing to submit a commencement notice before works began. Regulation 118(6) gives the appointed person discretion to quash a surcharge when allowing an appeal against the deemed commencement date. It does not require that outcome.
Here, McEntee declined to exercise that discretion. The works had been authorised retrospectively, so a valid commencement notice under Regulation 67(1) could not have been submitted in the ordinary way before work started under that permission. However, the difficulty followed from the appellant not carrying out the original permission strictly as approved.
The appointed person characterised this as a situation brought about by the appellant’s own actions. Accordingly, the CIL commencement date appeal was allowed, but the surcharge for failing to submit a commencement notice was upheld.
This is the important practical warning. An authority’s mistake over a demand notice can be corrected without relieving the developer of every penalty attached to the development’s history. The CIL surcharge guidance explains the different procedural breaches that can lead to additional charges.
Retrospective permission and CIL risk
Applications under section 73A can regularise development that has already been carried out. They should not be treated as a free opportunity to restart all levy procedures without consequences. The legislation contains specific rules for what counts as commencement where a retrospective permission is involved.
The CIL commencement date question also needs to be separated from any question about whether a valid liability notice has been served. The appointed person noted arguments concerning an earlier liability notice, but those related to the original permission and did not determine this Regulation 118 appeal.
Where a project has been changed on site, an adviser should compare the development actually undertaken, the permission relied upon, any subsequent section 73A permission and the dates and descriptions used in each liability and demand notice. The scope of the appeal must also match the alleged error.
Planning Geek’s CIL commencement guide explains how the statutory commencement rules interact with notifications and payment. Its CIL appeals guide covers the separate grounds and time limits for challenging levy decisions.
What developers should take from the Croydon decision
The most valuable lesson is not that a CIL surcharge disappears after a successful appeal. It is that the collecting authority must apply the correct statutory commencement rule to the correct planning permission, and that a correction can coexist with the continuing consequence of a developer’s procedural breach.
Anyone receiving a demand notice for retrospectively permitted development should check the consent date and the deemed commencement date immediately, and identify the specific regulation under which any appeal might be made. A Regulation 118 challenge is narrowly directed at the date, not every aspect of the levy account.
The appeal was determined on 12 November 2026 under reference APP/L5240/L/25/3376017. The appeal decision is also available on AppealBase.
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