R (Heronslea (Bushey 4) Ltd) v Secretary of State for Housing, Communities and Local Government [2022] EWHC 96 (Admin)

Heronslea is an important CIL case about social housing relief, commencement notices and late payment surcharges. It must be read with a prominent current-law warning: the case applied the CIL Regulations as they stood before 1st September 2019. The law changed so that, for later liability notices, failing to submit a commencement notice normally leads to a surcharge rather than automatic loss of the relief.

Neutral citation

[2022] EWHC 96 (Admin)

Court

High Court of Justice, Queen's Bench Division, Planning Court

Judgment date

20th January 2022

Judge

Mrs Justice Lang DBE

Case number

CO/883/2021

What happened in Heronslea

Heronslea obtained planning permission for 55 homes at Lincolnsfield in Bushey, including 21 affordable homes secured by a section 106 agreement.

The developer assumed liability for CIL and successfully claimed social housing relief worth just over £320,000. Hertsmere Borough Council repeatedly warned that a commencement notice had to be submitted before works started.

Development nevertheless commenced without a commencement notice. The council deemed 19th June 2019 to be the commencement date, removed the social housing relief under the version of regulation 51 then in force and later imposed late payment surcharges.

The developer challenged the surcharges. The Planning Court dismissed the claim.

The former regulation 51 rule was strict

The version of regulation 51(7)(a) applying to the Heronslea liability notice said that a chargeable development ceased to be eligible for social housing relief if a commencement notice was not submitted before development commenced.

Heronslea argued that once the council had formally granted social housing relief, the relief could only later be withdrawn following a disqualifying event under regulation 53.

Mrs Justice Lang rejected that interpretation. Regulation 51(7)(a) continued to operate after relief had been granted and up to commencement. Starting development without the required commencement notice therefore caused the development to lose eligibility for the relief under the law then in force.

This part of Heronslea is historic law

This warning is essential. Regulation 51(7)(a) was revoked for the later regime introduced from 1st September 2019.

Current government CIL guidance confirms that where an exemption or relief has been obtained and a commencement notice is missed, the 2019 amendments replace automatic loss of the relief with a surcharge equal to 20% of the notional chargeable amount, capped at £2,500.

The change applies where the relevant liability notice or revised liability notice was issued on or after 1st September 2019. A notice issued before that date can still bring the former loss-of-relief rules into play, which is why Heronslea remains important.

For the current position, use our CIL social housing relief and CIL surcharge guides rather than applying the 2019 facts in Heronslea without checking the date of the liability notice.

The demand notice does not create the payment date

The second issue was when CIL became due for the purpose of the late payment surcharges.

The developer argued that time could only start running once a valid demand notice had been served. The court rejected that argument.

Where a collecting authority has determined a deemed commencement date, regulation 71(2) provides that CIL is due in full on that deemed commencement date. The demand notice records the liability and payment terms. It does not itself create the underlying liability or choose the statutory payment date.

Missing the commencement notice also lost the instalment position

Because no commencement notice had been submitted, the council had to determine a deemed commencement date under regulation 68.

The more favourable payment provisions associated with a properly submitted commencement notice did not apply. The full CIL amount was therefore due on the deemed commencement date.

That point remains useful under the current regime. Missing the commencement notice can still create serious financial consequences even though the post-2019 rules no longer automatically strip away most reliefs and exemptions.

An inaccurate demand notice was still effective until challenged

The first demand notice incorrectly referred to a disqualifying event. The court accepted that this wording was potentially misleading.

However, the notice had not been appealed or judicially reviewed and remained legally effective until it was later superseded by a revised demand notice. This reflects the general public law principle that an official decision remains valid unless and until it is set aside by the appropriate legal process.

Why Heronslea still matters

The historic loss-of-relief rule has changed, but three practical lessons remain valuable:

• the date of the liability notice can decide which version of the CIL rules applies
• a commencement notice should still be submitted before starting chargeable development
• liability, payment dates and surcharges ultimately arise from the Regulations, not simply from what a demand notice says

For CIL cases, it is therefore dangerous to read an older judgment without checking both the date of the liability notice and the current regulations.

Read the full Heronslea judgment

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

Related Planning Geek guidance

See our current guides to CIL social housing relief, CIL surcharges and the CIL Liability Notice and Demand Notice.

Heronslea Case Law Page Updated: 9th September 2026