Law Society opposes raising permission threshold for judicial reviews against development consent orders

Chancery Lane's comments came in a consultation response to an independent review concerning the Nationally Significant Infrastructure Planning (NSIP) regime established through the Planning Act 2008.

NSIP is a streamlined decision-making process by which major infrastructure projects of specified categories secure planning approval, in the form of a DCO, from the relevant Secretary of State rather than the local planning authority.

In early 2024, the previous Government appointed Lord Banner to lead an independent review into the causes of legal challenges brought against the NSIP regime and to explore the scope and options for improving existing processes.

In October 2024, the then Government launched a consultation seeking views on Lord Banner's findings, which included a recommendation that claimants should have fewer 'bites at the cherry' when seeking permission for judicial review of development consent orders (DCOs).

He said: "The current three bites of the cherry to obtain permission to apply for judicial review is excessive and should be reduced to either two or one."

Lord Banner also said there "may be a case for raising the permission threshold for judicial review claims challenging DCOs".

The consultation closed to responses on 30 December.  

However, in its response to the consultation, published Friday (17 January), the Law Society said it disagreed "with the recommendations made to raise the permission threshold and reduce the number of permission stages to one".

It added: "Further analysis of the cost implications is needed before committing to reform by removing only the paper application stage.

"We do not consider that introducing a specialist NSIP ticket in the High Court would produce a material benefit, but could in fact increase delays."

Chancery Lane, meanwhile, voiced its agreement in principle that there are benefits to recommendations to designate challenges concerning DCOs such as 'significant planning court claims', making use of case management conferences, and introducing target timescales and key performance indicators.

In addition, the Law Society recommended:

• providing sustainable funding for the justice system to rebuild the court system and ensure it can provide timely justice.
• encouraging engagement with the pre-action protocol, including considering introducing flexibility to extend time limits to pursue early settlement.
• strengthening the duty of candour to further enable full engagement with the pre-action protocol stage and encourage settlement.
• encouraging concession at permission stage where it is clear the permission threshold is met to remove one unnecessary source of delay.

Adam Carey