Think! before you use the post for serving documents

Community Infrastructure Levy (CIL) is a charge that local authorities can set on certain new developments in order to raise funds to help infrastructure such as schools and transport improvements.

The liability for payment of CIL arises on the commencement of a qualifying development under a planning permission. Thus, a Liability Notice specifying the amount of CIL to be paid is to be served “as soon as practicable after the day on which a planning permission first permits development”. The Community Infrastructure Levy Regulations 2010 (“the Regulations”) provide a wide choice as to how Liability Notices may be validly served by the local authority upon the developer or any party who has accepted liability for the CIL. The choices range from hand delivery of the Notice, to leaving the Notice in the person’s last place of abode or sending it by post where a service address is provided. Liability Notices can also be sent by registered letter, recorded delivery or electronically.

Where there is a breach of a Liability Notice, a surcharge may be imposed by the Collecting Authority (the Council). The surcharge can be appealed on several grounds. One of them is that the Collecting Authority did not serve a valid Liability Notice. A recent case shows that although a choice as to service is given by the Regulations, in practice, the only secure way to send a Liability Notice is by a method that can be tracked. In Appeal decision APP/U1105/L/23/3330291 (6 December 2023) a Liability Notice was sent by post, but the recipient claimed not to have received it. A surcharge had been imposed due to a failure to assume liability, and a failure to submit a commencement notice.

The Council alleged that the Notice was sent to the address given in the planning application form. The Appellants argued that the Notice should have been sent to the development site address where they were now living. They further alleged that they had arranged re-direction of post with Royal Mail and there was no record of the Notice having been re-directed. The appeal was resolved on documentary evidence. It was recognised that the Council was entitled under the Regulations to use standard post, but it carried an element of risk by lacking proof of postage. The Council could only provide an Exacom Audit Trail with log entries. This proved that the documents were generated, but it failed to prove that they were sent or delivered. A ruling was made in favour of the Appellants.

In conclusion, not all choices given by legislation as to serving Notices is desirable or satisfactory despite being valid. In view of the Appeal, it is now best to choose a method of service that builds a tangible paper trail (such as recorded delivery with a tracking number) because there is no presumption of service in respect of certain Notices such as CIL Liability Notices or surcharges.

For further information on serving Notices, contact Frank Smith & Co Solicitors on 01242 801 748 or visit here.



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