“It’s time we should talk about it
There’s no secret kept in here
Forgive me for asking
Now wipe away your tears
And if I wish to stop it all
And if I wish to comfort the fall
It’s just wishful thinking”
(Wishful Thinking by China Crisis, 1983 – tune!)
MHCLG published two pieces of advice this week that might be construed as wishful (and therefore potentially misleading) thinking:
CIL
On 25 June the housing and planning minister wrote to all CIL charging authorities in England in relation to household developer exemptions:
“While the CIL Regulations provide clarity on the criteria that must be met and procedures that must be followed to secure relief or an exemption, the Government is aware of some historic cases where householders have failed to obtain an exemption due to procedural errors, which may have been inadvertent or unintentional. In some instances, despite meeting the qualifying criteria, householders may not have followed the procedures set out in the regulations, and may not have applied for or received a CIL exemption before commencing development. In others, an exemption may not have been obtained because retrospective planning permission was granted after further works had already begun on a development that had previously benefitted from an exemption or was otherwise not liable for CIL. The Government recognises that this has, in some cases, resulted in the imposition of significant CIL charges under the regulations.”
Too true! See for example my previous blog posts CIL The Merciless (19 January 2019), Trent Won, Cil Nil (14 April 2021) and CIL: There Is No Equity About A Tax (10 July 2021).
So what is it proposing to do? First: “The Government is proposing to consult on a proposed package of targeted regulatory changes to make the operation of CIL clearer and more proportionate for householders and self-builders.“
So far so good (although if you asked me I would either entirely remove CIL liability for householder development or I would entirely remove the self-build exemption).
But, the second section of the letter is headed “historic cases” and has three strands:
- “First, we strongly recommend all authorities to review their local CIL guidance and communication methods to ensure any household developers in their area are aware of the current exemptions and the necessary procedures to access them.” (What more or better communication does anyone suggest? Authorities do in my experience communicate the position both on their websites and via informatives on permissions – the problem is the complexity of the system itself for people without the sophisticated tax administration advice needed).
- “Second, while charging authorities have a duty to collect CIL that is due, they continue to have a degree of discretion over the steps they take to do so and when. This includes considering what is reasonable and proportionate in any given case and the appropriate timescales for enforcement activity. It has been brought to the Government’s attention that escalated enforcement actions, including threats of forced sale or criminal proceedings, have led to serious consequences for some individuals and families. Such action, or similar, is not required by the regulations without regard to local authorities’ broader legal obligations – and the precise approach to CIL collection in any individual case will depend on the specific facts and circumstances. Exactly what enforcement steps to take, and when, to collect CIL in each case is a matter for the judgement of the authority concerned.”
- “Third – where an authority feels this is justified – collecting authorities are able to make ex gratia payments of compensation from their general funds in exceptional CIL cases where payment has been made. Such payments would not constitute a waiver or refund of CIL, but rather a discretionary payment made from general funds, outside the CIL regime. These circumstances may arise where a charging authority considers that redress is appropriate because a householder developer would have been entitled to an exemption but, as a result of an administrative error, failed to claim it in accordance with the required procedure and now faces significant hardship as a consequence. There will be a range of considerations for local authorities in making such a decision, and in all cases, they should seek their own legal advice based on the facts and circumstances of individual cases.”
These last two suggestions in my view paint an over-optimistic picture to those who have incurred CIL liability through (often understandable) mistakes. Just look at the case law cited in the blog posts I mention, or indeed more recently R (Luck) v Bracknell Forest Borough Council (Lieven J, 14 November 2025) which reviews that previous case law:
“A number of points in respect of the CIL regime can be drawn from this caselaw:
a. CIL is akin to a tax, see Gardiner at [35];
b. 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];
c. The statute and Regulations form a detailed statutory code which is self-contained and carefully constructed, see Gardiner at [48];
d. The imposition of CIL is not discretionary, see Shropshire at [44];
e. There is a strict procedure set out in Regulation 54B, which is obligatory, see Gardiner at [57];
f. Liability for CIL must be precisely and reliably calculated on an objective basis, see Gardiner at [63].”
“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.”
Butcher J in Clamp: “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.”
Lieven J in Luck: “Quite apart from the detail of the Regulations, there are two overarching reasons why it would be surprising if there was a broad discretion to waive CIL. Firstly, as is set out by the High Court in Clamp, one would not normally expect a tax collecting authority to have an unfettered discretion to waive the tax that Parliament had set. That point is even stronger here than in Clamp, because the local authority under the CIL regime is not in the same position as HMRC with broad management powers and a fairly wide discretion to reach “arrangements” with the taxpayer. So, it is even less likely that the local authority would have such a broad discretion to waive liability.”
“Secondly, to construe Regulation 65(7) as a broad discretion to waive CIL seems inconsistent with the rest of the Regulations. It would be a wholly unfettered discretion, with no criteria set out, in marked contrast to Regulation 55. There is no parallel power in relation to demand notices, so if the liability notice can simply be withdrawn, the court would have to imply into the Regulations a power for the demand notice to be withdrawn or to cease to have effect. The Claimant argues that by withdrawing the liability notice the underlying liability itself ceases. However, for Regulation 65(7) to have this effect would be inconsistent with the Court of Appeal decision in Braithwaite, which held that the liability continues to exist even where the liability notice is withdrawn.”
Yes, the collecting authority does have some discretion as to the enforcement steps it will take. It also specifically has discretion as to whether to impose surcharges. But other than that it has to operate within the narrow tramlines of the legislation. For someone who has made a very expensive mistake which has caused them to lose the benefit of, say, the self-build exemption, the fact that the authority may (may, no guarantee at all) choose not to resort to prosecution or an injunction to enforce payment is of little consolation if the house is ever to be mortgaged or sold.
As for the suggestion of the authority making ex gratia payments where the householder has made the administrative error rather than the authority….really?? All that this is going to lead to is many detailed, often heart-wrenching, requests, often backed by increasingly assertive legal submissions, as to why in the particular circumstances an ex gratia payment should now be made. And it’s the hope that kills because surely the authority’s response, after spending time and resources as they “seek their own legal advice based on the facts and circumstances of individual cases” is going to be “no”?
Isn’t all this papering over the cracks rather than making proper repairs?
Air conditioning units
On the same day, 25 June 2026, MHCLG published a blog post, Air conditioning rules. It starts like this:
“There has been media coverage this week suggesting that air conditioning is banned in homes. This is incorrect.
Air conditioning can be installed in both existing and new homes.
In most cases, planning permission is not required to install it for a small home if it would not materially affect the appearance of the building from outside.
However, there is no blanket rule. People should speak with their local council to check the rules, and councils should take a common-sense approach.”
It ends like this:
“A government spokesperson said:
“Air conditioning units are not banned. They can be installed in both existing and new homes and we expect councils to take a common-sense approach to the rules around this, which are there to manage the interests of communities and the environment.”
So let’s assume I’m a member of the public and I’m thinking about installing an air conditioning unit. I assume that government spokesperson is not thinking of one of those internal units with a hose that waggles inefficiently out of the part-opened window? If it’s a split unit device with an external unit and internal unit, the external unit does not have the benefit of any permitted development rights unless it is in the form of an air source combined heating and cooling unit (for which there is a right subject to limitations and conditions in class G of Part 14). Otherwise the question is one for the local planning authority as to whether in its planning judgment a large white box on the exterior of the building materially affects its external appearance, which will always come down to various site-specific factors. Are you going to check with the authority first before you make your expensive purchase? In many locations, and in the absence of formal government advice (which that blog post is not), I anticipate that officers would conclude that planning permission is required.
CIL and planning officers: I would welcome your respective thoughts on both of these announcements.
Simon Ricketts, 28 June 2026
Personal views, et cetera
SIMONICITY 