AC-2025-LON000257 - [2025] EWHC 2984 (Admin)

Fecha: 14-Nov-2025

The Caselaw

53.

In R (Gardiner) v Hertsmere Borough Council [2022] EWCA Civ 1162 the Court of Appeal were considering the self-build exemption for CIL. A number of important points arise from the case:

At [35] the Court cites with apparent approval Thornton J at first instance observing that CIL is “akin to a tax”, and that “the proper interpretation of tax legislation requires a close analysis of what, on a purposive construction, the statute actually requires”;

At [45] “The statutory scheme forCIL is self-contained and carefully constructed.”

At [57] the Court said: “An essential part of the regime for the self-build housing exemption in the CIL Regulations is the strict procedure in regulation 54B. Adherence to this procedure is not optional; it is obligatory. If it is not followed, the exemption will not be available. To be valid, a claim must be submitted to the collecting authority “in accordance with this regulation” (regulation 54B(1)). The claim must comply with the requirements of regulation 54B(2). An indispensable requirement is that it must be made by a person who “has assumed liability to pay CIL …” (regulation 54B(2)(a)(ii)). The exemption is only available to a person who has already assumed such liability.”

At [63] they said: “Liability to CIL, as to any other tax, must be precisely and reliably calculated on an objectively certain basis”.

54.

In R (Trent) v Hertsmere Borough Council [2021] EWHC 907 Lang J was also dealing with the self-build exemption, and she made clear at [60] and [69] the need for strict compliance with the procedure if the exemption was to be relied upon (in that case the procedural failures were by the collecting authority).

55.

In R (Shropshire Council) v SSCLG [2019] EWHC 16 CMG Ockleton sitting as a Deputy High Court Judge was again dealing with procedural non-compliance in respect of the self-build exemption and whether the collecting authority’s imposition of interest was lawful. At [40] he said, “The Regulations make perfectly clear the consequence of failure to comply is loss of the exemption: and failure to comply means failure to submit a notice under regulation 67”. At [44] he said, “the fact that the penalties are discretionary does not mean that the imposition of CIL itself is discretionary: it is not”.

56.

In R (Heronslea) v SSCLG [2022] EWHC 96 Lang J was dealing with the social housing exemption in Regulation 51. At [120] she said; “the purpose of the CIL Regulations is to give certainty to developers and the collecting authority as to when and how the liability for CIL will arise.”

57.

Importantly, in respect of the effect of a liability notice, she said at [134]:

In Lambeth v Secretary of State for Housing Communities and Local Government & Anor, Thornton J. rejected an argument similar to that relied upon by the Claimant before me. She correctly concluded, at [75]: “The interested party falls into the same error of analysis as that rejected by Swift J. in Oval Estates [2020] PTSR 861, paras 32-34. Liability to pay CIL and the date and quantum of payments is not determined by the issue of liability or demand notices. Rather those notices record the liability and terms of payment.”

58.

The fact that liability for CIL is not determined by the Liability Notice, but merely recorded by it, is important for Ground Two.

59.

A number of points in respect of the CIL regime can be drawn from this caselaw:

CIL is akin to a tax, see Gardiner at [35];

The purpose of CIL is to provide funding for necessary development and to provide certainty to developers and the collecting authority as to when and how such liability arises, see s.205 PA and Heronslea at [120];

The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];

The imposition of CIL is not discretionary, see Shropshire at [44];

There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];

Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].

60.

This case turns on issues of statutory (including secondary legislation) interpretation. The Supreme Court considered the approach to statutory interpretation in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] 2 WLR 343. This is helpfully summarised by the Court of Appeal in Gardiner at [48]:

“In undertaking that process, the court is seeking the meaning of the words which Parliament has used. It should endeavour to identify the meaning of the language used in its particular statutory context. Other provisions in the statute and the statute as a whole may provide the relevant context. As Lord Hodge DPSC put it (in para 29), “[they] are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained”, and (in para 30) “[external] aids to interpretation therefore must play a secondary role”, capable though they may be of “assisting a purposive interpretation of a particular statutory provision”. Ultimately, again as Lord Hodge DPSC put it (in para 31), “[statutory] interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered”.

61.

The Court of Appeal in Gardiner then applied the principles of tax law to the interpretation of the provisions relating to CIL at [49]:

“In my view the provisions with which we are concerned ought to be understood as they are formulated in the legislation, and the words used should be given their natural and ordinary meaning, having regard to their particular context, and bearing in mind that statutory provisions for taxation ought, in general, to be strictly construed and effect given to the clear terms in which the Parliament may be expected to enact such provisions. As Rowlatt J said in Cape Brandy Syndicate v Inland Revenue Comrs [1921] 1 KB 64, 71:
“… [In] a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.”

62.

Given that the Court of Appeal have held that CIL is a form of taxation, it is relevant to consider the caselaw on the scope of HMRC’s powers to waive tax which would otherwise be liable. In R (Clamp) v HMRC [2022] 1 WLR 1067 Butcher J was considering a judicial review concerning HMRC’s powers to enter into assurances with taxpayers as to tax liability.

63.

At [32] he referred to HMRC’s very wide powers of collection and management and said; “Inherent in those powers of collection and management is a discretion”. At [40] he referred to HMRC’s powers to make tax arrangements and assurances as part of their collection and management powers.

64.

He then went on at [41] to say:

HMRC cannot properly, however, make concessions that tax should not be payable, where this is done not to facilitate the overall task of tax collection, but because they consider that a tax which Parliament has clearly imposed should not as a matter of principle or policy, or by reasons of considerations of equity, be payable. In R (Wilkinson) v Inland Revenue Comrs [2003] 1 WLR 2683, in the decision of the Court of Appeal in that case, Lord Phillips of Worth Matravers MR said this (at para 46):

“No doubt, when interpreting tax legislation, it is open to the commissioners to be as purposive as the most proactive judge in attempting to ensure that effect is given to the intention of Parliament and that anomalies and injustices are avoided. But in the light of the authorities we have cited above and of fundamental constitutional principle we do not see how section 1 of the 1970 Act can authorise the commissioners to announce that they will deliberately refrain from collecting taxes that Parliament has unequivocally decreed shall be paid, not because this will facilitate the overall task of collecting taxes, but because the commissioners take the view that it is objectionable that the taxpayer should have to pay the taxes in question.”
“This [managerial] discretion enables the commissioners to formulate policy in the interstices of the tax legislation, dealing pragmatically with minor or transitory anomalies, cases of hardship at the margin or cases in which a statutory rule is di–cult to formulate or its enactment would take up a disproportionate amount of parliamentary time. The commissioners publish extra-statutory concessions for the guidance of the public and Miss Rose drew attention to some which she said went beyond mere management of the efficient collection of the revenue. I express no view on whether she is right about this, but if she is, it means that the commissioners may have exceeded their powers under section 1 of TMA. It does not justify construing the power so widely as to enable the commissioners to concede, by extra-statutory concession, an allowance which Parliament could have granted but did not grant, and on grounds not of pragmatism in the collection of tax but of general equity between men and women.”