Herod Property Ltd, R (On the Application Of) v Westminster City Council [2026] EWHC 2122 (Admin)

Herod CIL liability is a major 2026 High Court decision on the zero-charge exception to the Notice of Chargeable Development and Commencement Notice requirements, existing-building evidence and the point at which Community Infrastructure Levy liability crystallises.

The court accepted that a developer may itself conclude that the chargeable amount is zero and therefore rely on the statutory notice exception. But the collecting authority is not bound by that view, and commencing development can leave the developer exposed if the authority later reaches a different conclusion on the evidence.

Neutral citation

[2026] EWHC 2122 (Admin)

Court

High Court, King's Bench Division, Administrative Court

Judgment date

11th August 2026

Judge

Sir Tim Kerr, sitting as a Judge of the High Court

What Herod decided

Herod Property Ltd converted part of a former office building at 32 Palace Court, Bayswater into five residential flats under Class MA permitted development rights.

The developer believed the existing in-use floorspace meant the CIL charge would be zero. It therefore commenced the development in late 2023 without submitting a Notice of Chargeable Development or a Commencement Notice.

Westminster later became aware of the development, served its own remedial Notice of Chargeable Development and ultimately issued a Liability Notice for £294,959.75. With surcharges and interest, the demand exceeded £380,000.

Sir Tim Kerr dismissed the developer’s judicial review challenge on all four grounds.

A developer can rely on the zero-charge notice exception

Regulation 64(1A)(b) creates an exception from the requirement to submit a Notice of Chargeable Development where the chargeable amount is zero. A corresponding exception can also affect the usual Commencement Notice requirement.

The court rejected the idea that the collecting authority must first agree that the charge is zero before the developer can rely on that statutory wording. The developer is capable of making the assessment for itself.

That was an important point in Herod’s favour — but it did not resolve the case.

The council was not bound by Herod’s self-assessment

A developer’s view that the charge is zero does not bind the collecting authority. If the authority later has to determine the charge, it may reach its own conclusion on the information and evidence available to it.

Herod had not supplied the evidence it relied upon for the existing-building deduction before commencement. When Westminster later had to make its determination, the Regulations permitted it to assess whether the relevant building qualified as an in-use building on the material reasonably available.

The High Court held that Westminster was not under a duty to conduct extensive detective work to rescue the developer’s position.

Warnings to the planning agent still mattered

Westminster had warned Herod’s planning agent before commencement that CIL might be payable and that the relevant notices should be submitted.

The warning was not passed on to Herod. The court nevertheless rejected the suggestion that the developer could avoid the consequences by relying on its agent’s failure to relay the correspondence.

For practitioners, that is a useful reminder that CIL correspondence should be treated as a live liability issue rather than left solely within the planning application file.

CIL liability crystallises on commencement

One of Herod’s arguments was that liability should later have been apportioned to purchasers of the completed flats.

The court rejected that argument. CIL liability crystallised when the development commenced. The person liable at that point could not shift or share the already-fixed liability simply because interests in the completed flats were sold later.

This makes commencement the pivotal date not only for payment and surcharges but also for identifying who bears the liability.

Planning Geek’s CIL commencement guide explains the wider rules.

An error on the notices did not make them automatically void

The Liability Notice and Demand Notice incorrectly referred to Transport for London in relation to the Mayoral element of the levy.

The court held that this did not invalidate the notices. The error caused no material prejudice and did not change the amount due. The consequence of a defect depends on the statutory scheme and the significance of the non-compliance; not every mistake produces total invalidity.

Use the statutory CIL remedies before commencement

Herod also reinforces the importance of the statutory review and appeal machinery. The court regarded judicial review as a remedy of last resort and considered the ordinary CIL routes to have provided an adequate remedy before commencement.

Commencing voluntarily while a CIL calculation or existing-building deduction remains unresolved can close or undermine those routes.

The practical course is therefore to resolve the evidence and challenge position before works begin, even where the developer has a strong view that the charge should be nil.

Class MA permission does not remove CIL

Permitted development is a route to planning permission; it is not a CIL exemption. A change of use creating dwellings can still be chargeable development even where no additional floorspace is constructed.

The existing-building rules may reduce the calculation, potentially to zero, but they depend on the statutory tests and evidence.

See Planning Geek’s detailed news analysis of the Herod Class MA CIL decision and our wider CIL calculation guide.

Read the full Herod judgment

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

Herod CIL Liability Case Law Page Updated: 10th September 2026