R (on the application of Braithwaite and Melton Meadows Properties Ltd) v East Suffolk Council [2022] EWCA Civ 1716

Braithwaite is an important Court of Appeal judgment on CIL liability notices and revised liability notices. It confirms that a defective liability notice is not automatically a nullity. Unless it is challenged and quashed in time, it remains legally effective and can be superseded by a revised liability notice under regulation 65 of the Community Infrastructure Levy Regulations 2010.

Neutral citation

[2022] EWCA Civ 1716

Court

Court of Appeal (Civil Division)

Judgment date

21st December 2022

Judge

Sir Keith Lindblom, Lord Justice Singh and Lord Justice Males

Case number

CA-2022-000622

What Braithwaite decided

The development at Melton in Suffolk had been granted planning permission and then two later permissions under section 73. The second section 73 permission made a small layout change which slightly reduced the CIL liability.

East Suffolk Council should have issued a fresh liability notice promptly after that permission. It did not do so until about 16 months later, and the 2020 liability notice was also served on the company rather than the person who had applied for planning permission.

Those were admitted breaches of regulation 65. The developer argued that the defective notice was therefore a nullity and that the later 2021 liability notice could not lawfully revive it.

The Court of Appeal rejected that argument.

A defective liability notice is not automatically a nullity

The Court of Appeal applied the ordinary public law principle that an official decision is treated as valid unless and until it is set aside by a court with jurisdiction to do so.

The 2020 liability notice had been issued. It was defective, but it had never been quashed. The developer could not simply treat it as though it had never existed.

If a developer considers that a liability notice is unlawful because it was issued late, served on the wrong person or otherwise breaches the Regulations, the appropriate route may be a prompt judicial review challenge. Delay can be fatal.

Regulation 65 still matters

The court did not suggest that the requirements of regulation 65 are optional. A collecting authority must issue a liability notice as soon as practicable after planning permission first permits development and must serve it on the people specified by the Regulations.

A timely challenge to a defective notice can succeed. The court referred to Trent v Hertsmere Borough Council, where a late liability notice was quashed because of the defects and resulting prejudice.

Braithwaite is therefore not authority for councils being free to ignore the statutory procedure. It is authority for the separate point that a defect does not automatically erase the notice without a successful legal challenge.

A revised liability notice can be issued at any time

Regulation 65(5) allows a collecting authority to issue a revised liability notice at any time.

The Court of Appeal held that the council could use that power to supersede the defective 2020 notice. The later notice corrected the service problem and accurately identified the relevant person.

The power to issue a revised notice does not retrospectively cure the fact that the original notice was issued late. A prompt challenge to the earlier notice would still have been possible. The difficulty for the developer was that no such challenge had been made in time.

Ceases to have effect does not mean never existed

Regulation 65(8) provides that when a collecting authority issues a liability notice, any earlier liability notice for the same chargeable development ceases to have effect.

The developer argued that those words meant the earlier notice was legally erased. The Court of Appeal disagreed.

The earlier notice remains part of the legal history. It has effect until superseded. A later revised notice does not reach backwards in time and make the earlier notice a nullity from the outset.

The revised notice did not have to call itself revised

The 2021 notice did not expressly describe itself as a revised liability notice. That did not matter.

Nothing in the CIL Regulations requires the notice to use that label. If the obvious purpose and legal effect of the document is to replace the earlier liability notice for the same chargeable development, it can be treated as a revised liability notice.

Section 73 permissions can require a new CIL calculation

The case is also a useful reminder that a section 73 permission can affect CIL. Here the second section 73 permission altered the layout and slightly changed the chargeable amount.

Where the chargeable amount or relevant particulars change, the collecting authority may need to issue a revised liability notice. The CIL consequences of an amended permission should therefore be checked when the permission is granted, not months later when development is already under way.

The delay in bringing judicial review was decisive

By January 2021 the developer had legal advice that the 2020 liability notice had not complied with the Regulations. It appealed a surcharge but did not bring judicial review proceedings against the underlying liability notice.

The Court of Appeal held that the real target of the later proceedings was the 2020 notice and that the challenge was hopelessly late. There would also have been a detriment to good administration in reopening the position so long afterwards.

Read the full Braithwaite judgment

The approved Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guides to the CIL Liability Notice and Demand Notice and CIL and section 73 permissions.

Braithwaite Case Law Page Updated: 9th September 2026