Segrue Investments v Swindon Borough Council: judicial review of CIL liability notices dismissed

The Planning Court has dismissed a judicial review brought by Segrue Investments Limited against Swindon Borough Council over its refusal to issue revised Community Infrastructure Levy liability notices for a residential conversion of a former bank premises in Swindon.

Sir Peter Lane, sitting at a rolled-up hearing, considered whether the Council had unlawfully failed to reconsider CIL liability of £125,274.64 in light of evidence the Claimant said showed the building qualified for a floorspace deduction under the "in-use building" test in the Community Infrastructure Levy Regulations 2010.

The site had previously been occupied by an HSBC branch that closed to the public during the Covid-19 pandemic before permanently shutting in October 2020. The Council's original liability notices, issued in December 2022 and February 2023, did not apply the in-use deduction, having found insufficient evidence that the premises remained in continuous lawful use for six months within the relevant three year window. The Claimant did not request a formal review within the 28 day statutory deadline under regulation 113, and its subsequent correspondence, though substantively engaged with by council officers, was treated as outside the formal process.

Years later, the Claimant relied on two pieces of material said to constitute new evidence: a Valuation Office Agency appeal decision concerning a different former bank, in which an inspector found that continued use of a safe and cash machines kept the premises in banking use, and a second letter from CBRE confirming that the HSBC branch's safe and ATMs remained in daily use until closure. The Claimant argued this triggered a duty under regulation 65(4) to issue revised liability notices, or alternatively that the Council had unlawfully fettered its discretion under regulation 65(5), which allows a revised notice to be issued "at any time".

Sir Peter Lane rejected the Claimant's construction of regulation 65(4), finding it would render the statutory review and appeal mechanisms in regulations 113 and 114 largely redundant if any new evidence submitted at any time obliged a collecting authority to reopen its calculation. Citing the Court of Appeal's emphasis in Gardiner v Hertsmere Borough Council on the strict construction of fiscal legislation and the self-contained nature of the CIL scheme, the judgement held that a "change" for the purposes of regulation 65(4) refers to matters such as a formal review outcome or the loss of an exemption, not the belated production of evidence that could have been advanced earlier.

On regulation 65(5), the court accepted the discretion could in principle require substantive engagement with genuinely new and previously unavailable evidence, but found neither the VOA decision nor the CBRE letter met that description, since the underlying facts about the branch's continued use during closure could and should have been raised within the original review and appeal timeframes. The Claimant therefore had a suitable alternative remedy which it had failed to exhaust, a conclusion sufficient on its own to dismiss the claim.

The judgement further held the claim was, in any event, brought out of time, since the Council's substantive position had been fully and finally articulated in correspondence long before the email the Claimant identified as the decision under challenge. All four grounds of review accordingly failed, though permission to apply for judicial review was formally granted as part of the rolled-up hearing.