Nathan Gardiner v Hertsmere Borough Council & Anor [2022] EWCA Civ 1162
Gardiner retrospective CIL is a leading Court of Appeal authority on self-build relief where development began before planning permission and was later regularised retrospectively.
The court held that the CIL self-build exemption could not be secured after the event. With a retrospective section 73A permission, the permission and deemed commencement arise together, leaving no pre-commencement window in which the statutory exemption steps can be completed.
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- Neutral citation
- [2022] EWCA Civ 1162
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 6th September 2022
- Judge
- Sir Keith Lindblom, Senior President of Tribunals, Lady Justice Elisabeth Laing and Lord Justice Birss
- Case number
- CA-2021-001397
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What Gardiner decided
Mr Gardiner had begun building works without the planning permission needed for the development. A later permission was granted retrospectively under section 73A of the Town and Country Planning Act 1990.
He sought to rely on the CIL self-build exemption, arguing in substance that the project was genuinely a self-build and should not be charged merely because the planning position had been regularised later.
The Court of Appeal dismissed the appeal.
The exemption procedure must exist before commencement
The CIL Regulations require specified steps to be taken before development commences, including assumption of liability and the grant of the relevant relief.
A retrospective permission creates a structural problem. Section 73A allows permission to take effect from a date before it is granted. For CIL purposes the development is therefore treated as already commenced when permission first exists.
There is no lawful interval in which the applicant can obtain the permission and then complete the pre-commencement self-build relief procedure.
Genuine self-build intentions were not enough
The court recognised the practical harshness of the result, but the statutory scheme was clear. A genuine intention to occupy the home personally could not substitute for compliance with the regulations.
The collecting authority also had no general equitable power to ignore liability merely because the outcome seemed harsh.
Planning Geek’s guide to CIL self-build exemption explains the current procedural requirements.
Retrospective planning permission can have CIL consequences
Gardiner is a strong warning against starting a potentially chargeable development first and planning to sort out both permission and CIL later.
Retrospective planning permission may regularise the planning breach, but it does not necessarily recreate relief opportunities which the CIL Regulations required to be secured before commencement.
Why Gardiner matters in practice
Where CIL relief is important to the economics of a project, the planning permission, liability position and exemption paperwork need to be aligned before work begins.
The case is especially relevant to self-builders who discover during construction that their development differs materially from the permission or that no effective permission exists.
Read the full Gardiner judgment
The full Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Gardiner CIL Case Law Page Updated: 10th September 2026