UK Construction and Law

Regulation 65 is not a second chance: a developer who missed the 28 day review window is left with a 125,274 pound levy bill

By Staff Writer  |  26 August 2026

A former bank branch was converted into flats. The developer said the building had been in lawful use and that the levy should be nil, but the evidence arrived after the review deadline had gone. The Planning Court has held that the power to issue a revised liability notice at any time does not oblige a collecting authority to look at late evidence.

Two chargeable developments at the same site in Swindon produced two liability notices. The first, dated 8 December 2022, followed prior approval under Class R for a change of use to fifteen apartments granted the previous month. The second, dated 17 February 2023, followed a permission granted on 26 January 2023 for a change of use from offices to three apartments and a dwellinghouse with external alterations. The developer said its liability across both should be nil rather than 125,274.64 pounds, because the building had been in lawful use before the permissions.

The in-use building test, and what closure means

The test is set out in Schedule 1 to the 2010 Regulations. The existing floorspace is deducted if a part of the building has been in lawful use for a continuous period of at least six months within the three years ending on the day planning permission first permits the chargeable development. For the first notice the relevant window was 8 December 2019 to 8 December 2022. The bank branch had ceased trading on 23 October 2020 and had been closed for a period before that during the pandemic.

The council's officers set out the test in writing, asked for tenancy agreements, utility bills or a signed declaration from the occupier, and said that evidence had to arrive within 28 days of the liability notice to trigger a recalculation on review. They also told the developer's adviser, in terms, that the final day to request a formal review under regulation 113 was 4 January 2023, and separately extended a discretionary deadline for evidence to 31 January 2023. No review was requested. Letters, statements about business rates and a later appeal decision concerning a different bank followed over the next two years.

Regulation 65 does not reopen what regulation 113 closed

The developer's case was that regulation 65(4) obliges a collecting authority to issue a revised liability notice whenever new evidence shows the chargeable amount does not match the facts, and that the authority must therefore engage with the substance of whatever is put in front of it. The court rejected that reading because of what it would do to the rest of the scheme. Regulations 113 and 114 contain strict deadlines, a duty to give reasons on review, a prohibition on a second review and a limit of one appeal per chargeable development. If evidence could be presented at any time and had to be considered, those provisions would serve no purpose.

the power in regulation 65(5) to issue a revised liability notice at any time does not contain a blanket requirement for a CIL authority to substantively consider any evidence submitted after the expiry of the review period

Sir Peter Lane, sitting in the Planning Court

The discretion in regulation 65(5) survives, and the judgment describes what it is for. It lets an authority respond to material that emerges after the review period, and the judge gave the obvious example of evidence that was genuinely unavailable earlier and could not reasonably have been obtained in time. That is a long way from a duty to reconsider on request.

Two procedural traps behind the substance

The claim also failed twice over on procedure, and both findings will travel further than the levy point. First, alternative remedy. Judicial review is a remedy of last resort, and where a statute lays down a route of appeal to a valuation officer on questions of fact, that route is the first port of call. Second, delay. The developer argued that an email of 4 July 2025, in which the authority said it had reviewed the case and would not exercise any discretion, was a fresh decision that restarted the clock. The court held that it was a confirmation of a position taken and repeated since early 2023, that the authority had not embarked on an internal review, and that the claim was accordingly out of time with no application to extend.

The practical reading is short. On a conversion, work out the in-use position before the liability notice lands, because the 28 day review window is the only door into the appeal route and it cannot be extended by the authority. Evidence sent afterwards depends on a discretion that nobody has to exercise, and correspondence asking an authority to think again will not restart the time for a challenge.