It’s always important to check before sending legal notices by post. Service by standard post is often fine, but it can lead to difficulties if you need to prove you have formally served a notice.
The Planning Inspectorate recently heard an appeal in which a developer claimed not to have received a Community Infrastructure Levy (CIL) Liability Notice from the Council. Likewise, the Council had no record of receiving the developer’s Commencement Notice.
As both parties had only served by standard post with no proof of delivery, the inspector had to decide the case on the balance of probabilities.
The developer was ultimately required to pay surcharges for failing to assume liability and failing to submit a Commencement Notice. The late payment surcharge was quashed as the developer, not having received a Liability Notice (as the inspector held), could not have known the specific CIL amount payable or when payment was required.
In this case, the planning permission triggering CIL included an informative pointing to the CIL guidance, procedures and responsibilities. This effectively meant that the developer could not use failure to receive a Liability Notice as an excuse for not serving the Assumption of Liability and Commencement Notices. The developer should have checked its responsibilities in the guidance referred to in the planning permission.
Best to err on the side of caution and send CIL notices by recorded delivery. Although it’s not a formal requirement, using recorded delivery should avoid any argument over whether notices have been validly served.
This case is also a useful reminder to pay attention to the planning permission notice; planning authorities may rely on informatives contained in the decision notice which are very easy to skip over.
If you have any queries or require any advice in relation to CIL, please contact our specialist Real Estate, Land and Development team today.