Regulatory Trends

Overview

Since their introduction in the Planning Act 2008 (the Act), there have been 137 Nationally Significant Infrastructure Projects (NSIPs) in the energy, transport, water, wastewater, and waste sectors. These are major infrastructure projects such as power stations, interconnectors, solar and wind farms, reservoirs, water transfer and recycling projects and carbon capture and storage projects, and examples include the Sizewell B nuclear power station, the Thames Tideway Tunnel and Heathrow Terminal 5.

Development projects identified as NSIPs are important for the national economy and public interest and benefit from an expedited approval process under the Act. Development consent, if granted, comes in the form of a Development Consent Order (DCO) made by the Secretary of State, which consolidates all necessary consents, licences, and authorisations. DCOs can be challenged in the Planning Court, by way of application for judicial review, within six weeks of being made.

Given the nature of NSIP projects, it is unsurprising that approximately 25% of DCOs to date have been subject to judicial review challenge. It is also unsurprising that the majority of these challenges have related to a decision to grant a DCO (rather than to refuse consent). However, despite causing delay, impacting delivery and increasing costs, only four DCO judicial reviews have been successful.¹

As a result of concerns about the impact of judicial review challenges on NSIPs, the previous government appointed Lord Banner KC to review whether these important projects are being “unduly delayed by inappropriate legal challenges”². The review ran from 12 February 2024 to 27 May 2024 and its findings were published on 28 October 2024 (the Banner Report), together with a Call for Evidence by the new government on the Banner Report’s recommendations.

This article looks at the Banner Report’s recommendations, the government’s approach to those options for reform in its Call for Evidence, and their potential impact if implemented – not just for NSIPs but for judicial review more widely.

The Banner report recommendations

The Banner Report’s headline conclusion is that the previous government’s concern that unmeritorious legal challenges to DCOs are causing significant delay to the delivery of NSIPs, with consequent detriment to the public interest, is “in significant respects well-founded.” It sets out ten options for reform focused on streamlining the number of DCO judicial reviews and/or improving the speed by which they are processed.

Recommendations 1 and 2 – Amending the Cost Caps and the Standing Rules

Recommendation 1 relates to amending the cost caps available for DCO judicial reviews and Recommendation 2 to amending the standing requirement for a claimant in a DCO judicial review. The Banner Report does not recommend that either of these options for reform are pursued because:

• Under the Aarhus Convention, the UK is required to ensure that environmental judicial reviews are fair, equitable, timely and not prohibitively expensive.³  The government is separately considering responses to its recent consultation on whether the cost caps available for such judicial reviews should be amended.⁴
• Under section 31(3) of the Senior Courts Act 1981, a claimant for judicial review must have a “sufficient interest in the matter to which the application relates” (often referred to as ‘standing’). The Banner Report considered the introduction of a heightened standing test (e.g. that a claimant must have “participated substantially” in the examination of the relevant DCO) but concluded that it would not have any meaningful effect on the number of DCO challenges. In its Call for Evidence, the government further notes that the issue of standing was considered as part of the Independent Review of Administrative Law in 2021⁵ and that “imposing a more exacting statutory test … without clear policy justification” risks of infringement on the right of access to justice.⁶

Recommendations 3 and 4 – Reducing Permission Attempts and Raising the Threshold

Judicial review applicants currently have up to three attempts to obtain permission from the Court to proceed with their claim: on paper, at an oral permission hearing, and on appeal to the Court of Appeal. Recommendation 3 suggests reducing this to two attempts for DCO challenges as “three bites of the cherry are not necessary to secure fair and effective handling of claims”. This would mean removal of the paper stage and proceeding straight to an oral permission hearing. It also suggests introducing target timescales for the oral hearing in the Planning Court (within 4 weeks of the deadline for filing Acknowledgments of Service) and determination by the Court of Appeal (within 4 weeks of the Planning Court’s refusal of permission) or, alternatively, reduction of the number of permission stages to one (in the Planning Court, with no right of appeal) by way of primary legislation.

Recommendation 4 relates to raising the threshold for permission in DCO challenges so that only those cases “likely to succeed” are allowed to proceed to a substantive hearing.

These would be fundamental changes to the judicial review process, with clear scope for wider impact beyond NSIP claims. In its Call for Evidence, the government emphasises concerns around access to justice and notes that more evidence is required to inform a decision.

Recommendations 5, 6 and 7 – Specialist NSIP Judges, Significant Planning Court Claims and Pre-Permission Case Management

Recommendation 5 considers the creation of a specialist ‘NSIP ticket’ for judges, which would result in a small number of judges with relevant experience being eligible to hear DCO judicial reviews. The Banner Report concludes that there are respectable arguments either way, but that the case in favour is not yet made out. In its Call for Evidence, the government recognises that judicial allocation and deployment is a matter for the judiciary and states that it would welcome views from members of the judiciary on whether this idea should be taken forward.

Recommendation 6 suggests automatically designating all DCO judicial reviews as Significant Planning Court Claims in order to benefit from the shorter timescales set out in Practice Direction 54D.⁷ However, in practice, all DCO judicial reviews to date have been treated in this way, so this would simply formalise an existing practice. The Call for Evidence seeks views on the practical benefits of taking this forward.

The Banner Report also suggests, at Recommendation 7, introducing automatic pre-permission case management conferences in DCO judicial reviews to ensure the smooth and efficient running of cases. It highlights advantages to consideration of certain procedural matters (e.g. timetabling, procedural rulings, disclosure, scope for narrowing the issues) being front-loaded. The Call for Evidence also puts the case for such change positively but, instinctively, it seems hard to understand why case management of this nature would or should be limited to DCO judicial reviews only.

Recommendations 8, 9 and 10 – Introducing Target Timescales and KPIs

Recommendations 8 and 9 relate to what the Banner Report describes as “a strong case for …[setting] target timescales for the determination” of DCO judicial reviews in the Court of Appeal and the Supreme Court. It proposes a target of four weeks at permission stage and four months for substantive appeals. Recommendation 10 builds on these recommendations, suggesting the publication of KPI data by the courts on a three-month rolling basis indicating what number and percentage of cases have met the target timescales (together with the average and maximum turnaround times during that period).

In its Call for Evidence, the government states that a better understanding of the causes of the current delays at the Court of Appeal and the Supreme Court is necessary to determine whether imposing target timescales would help ensure consistent and timely processing of DCO judicial reviews. It requests views from the senior judiciary on how target timescales might affect the operation of the appellate courts and, more widely, on the likely benefits and costs of the proposal to publish KPI data.

Other potential areas of reform

The Banner Report also considers the causes of legal challenges to date which, among other things, highlights concerns with National Policy Statements (NPS).⁸ For example, some of the NPS have been found to be out of date and to exclude important new policy considerations⁹ and there are also issues with the ambiguity of their drafting and the weight to be given to different considerations as part of the Secretary of State’s decision-making.¹⁰ In its Call for Evidence, the government commits to reviewing and updating NPS more regularly and states that it is conducting a “12-month process to ensure the policy framework necessary to deliver 2030 infrastructure ambitions is in place”.

Next steps

The Call for Evidence closed on 30 December 2024.

In its ‘Clean Power 2030 Action Plan’ published on 13 December 2024, the government announced that it is bringing onshore wind back into the NSIP regime in England and will introduce a Planning and Infrastructure Bill with measures to streamline the delivery of critical infrastructure in the planning process.¹¹ It further states that it will “explore reforming judicial review process for NSIPs following Lord Banner’s recent independent report” and intends “to legislate at the earliest convenience for any desired changes requiring primary legislation following the Call for Evidence. For example, this could include changing the rules so that claimants in each case only have one attempt to seek permission for judicial review”.

This will therefore be an area to watch, both with regard to NSIPs and given the potential for any changes to have wider application beyond DCO judicial reviews either immediately or over time.

With thanks to Aimee Hardham for her assistance in preparing this briefing.