Review led by leading planning barrister sets out recommendations for speeding up handling of legal challenges to major infrastructure projects

Claimants should have fewer ‘bites at the cherry’ when seeking permission for judicial review of development consent orders (DCOs) made under the Nationally Significant Infrastructure Projects (NSIP) regime, an independent review by leading planning barrister Lord Charles Banner KC has recommended.

Lord Banner’s Independent review of Legal Challenges to Nationally Significant Infrastructure Projects, which was commissioned by the previous government, also called for a streamlined judicial review process for such claims.

He added that there might be a case for raising the permission threshold for judicial review claims challenging DCOs.

The full list of recommendations is set out at the bottom of this article.

However, Lord Banner, a tenant at Keating Chambers who was assisted with the review by Nick Grant of Landmark Chambers, said there was no case for amending costs caps while the UK was a member of the Aarhus Convention, nor for changing the rules on standing.

The Government said it would carefully review the recommendations and the responses received in a call for evidence before publishing a response “with a focus on ensuring there is a balance between the critical need for projects and maintaining the public’s right to challenge government decisions”. 

The call for evidence, issued by the Ministry of Justice, can be viewed here. It closes on 30 December 2024.

In the introduction to his review, Lord Banner said: “The prompt for this review was a concern in government and amongst some stakeholders that unmeritorious legal challenges to DCOs were causing significant undue delay to the delivery of NSIPs, with consequent detriment to the public interest.

“The report examines that concern, informed by data as well as extensive engagement with stakeholders in the NSIP regime from a wide range of perspectives. I conclude that it is in significant respects well-founded…..

“I have therefore sought to examine ways of streamlining the process for judicial review of DCOs so as to minimise delays caused by unsuccessful legal challenges, whilst at the same time respecting constitutional principles and UK’s international obligations including under the Aarhus Convention”.

Lord Banner said that if his recommendations were implemented, then he was confident that they would “deliver meaningful acceleration in the handling of legal challenges to DCO decisions. Perhaps just as importantly as making the timescales quicker, my recommendations would also make them more predictable.”

He added that these enhancements would increase stakeholder confidence in the NSIP regime (including from investors) as well as reducing costs and other risks caused by delays to delivery of NSIPs caused by unsuccessful legal challenges.

Housing and Planning Minister Matthew Pennycook said: “Building new and improved national infrastructure is essential to delivering the government’s economic growth and clean power missions and we must have planning system fit to deliver it.

“With demands on the consenting process having changed considerably over recent years, I’m grateful to Lord Banner for reviewing how we might speed up the delivery of major infrastructure projects.

“The government will carefully review his recommendations and consider further proposals before determining how we will further improve the Nationally Significant Infrastructure Projects regime.”

Lord Banner KC’s recommendations

Recommendation 1

For so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIPs.

Recommendation 2

There is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs.

Recommendation 3

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. As to this:

1) Subject to the introduction of a Practice Direction to CPR Part 52 setting target timescales in the Court of Appeal for appeals and applications for permission to appeal from the High Court in cases concerning NSIPs (see Recommendation 7 below), there should be two opportunities to obtain permission: one in the High Court and one in the Court of Appeal.

2) The Civil Procedure Rules Committee (“CPRC”) should be invited to introduce amendments to the CPR to provide that, in judicial review cases challenging a DCO, the question of whether permission should be granted shall proceed in the High Court straight to a hearing with no prior written stage. The target timescale for the oral hearing in the High Court should be within 4 weeks of the deadline for the Defendant and any Interested Parties to file their Acknowledgment of Service. The target timescale for the Court of Appeal’s determination of an application for permission to appeal against the refusal of permission to apply for judicial review should also be 4 weeks.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to reduce the number of permission stages to one (probably but not inevitably using the s.289 model)[footnote 2].

Recommendation 4

1) There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.

2) This requires further consideration in the light of whether the other recommendations in this report are taken forward.

3) The necessary further consideration could be undertaken in the context of a consultation on any proposed changes to the CPR that are made in the light of this report.

Recommendation 5

1) There are respectable arguments either way on the question of whether or not there should be a specialist ‘NSIP ticket’ within the Planning Court, pursuant to which around 4-6 judges with in-depth NSIP experience would be eligible to hear judicial review challenges to DCO decisions.

2) On balance, I conclude that the case in favour of an ‘NSIP ticket’ is not yet made out.

3) If an ‘NSIP ticket’ is introduced, this could be done either by changes to the CPR or by judicial practice. Legislation would not be required.

Recommendation 6

The CPRC should be invited to amend CPR PD 54D paragraph 3.2 to add a new subparagraph providing that DCO judicial reviews are automatically deemed Significant Planning Court Claims.

Recommendation 7

1) The CPRC should be invited to amend CPR Part 54 and/or PD 54 to introduce automatic pre-permission Case Management Conferences in judicial review claims challenging DCOs.

2) The pre-permission CMC should take place in the 2nd or 3rd week after the deadline for the Acknowledgement of Service of the Defendant(s) and any Interested Parties.

3) There should be appropriate flexibility as to the time of day and format (in person or virtual) of the pre-permission CMC so as to ensure if at all possible that at least one of the counsel retained by each party is able to participate.

4) The parties should be required to submit a joint position statement to the Court no later than 2 days prior to the pre-permission CMC, covering the topics listed at paragraph 104 of this report which shall form the agenda for the CMC.

5) If at a subsequent permission hearing, permission to proceed with the claim is granted, there should be an updated case management discussion at the end of the permission hearing, covering the topics listed at paragraph 105 of this report which shall form the agenda for that discussion.

6) Where permission is granted by the Court of Appeal:

a. If the Court of Appeal grants permission at a permission hearing and the matter is kept in the Court of Appeal, the updated case management discussion should take place at the end of that hearing;

b. If the Court of Appeal grants permission on the papers and keeps the matter in the Court of Appeal, there should be an updated case management discussion within 2 weeks covering the topics listed at paragraph 105 of this report;

c. If the Court of Appeal grants permission and returns the matter to the High Court, there should be a 2nd CMC within 2 weeks to cover the topics listed at paragraph 105 of this report which shall form the agenda for that 2nd CMC.

Recommendation 8

1) The CPRC should be invited to amend the CPR to introduce a new Practice Direction accompanying CPR Part 52, dealing with appeals to the Court of Appeal from the Planning Court, which sets target timescales for the determination of applications for permission to appeal, and (where permission is granted) thereafter substantive appeals. These target timescales should at minimum apply to DCO judicial reviews.

2) The target timescales in the Court of Appeal should be[footnote 3]:

a. For permission to appeal and appeals against the refusal of permission to apply for judicial review: determination 4 weeks from the application for permission to appeal.

b. For the hearing of substantive appeals: 4 months from the application for permission to appeal.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to recharacterise challenges to DCOs as an “appeal” which, as well as reducing the number of permission bites of the cherry to one (see Recommendation 3(3) above), would also make onward appeals to the Court of Appeal subject to the heightened test for second appeals.

Recommendation 9

The President of the Supreme Court should be invited to consider amending the Supreme Court Rules to introduce target timescales for the determination of applications to the Supreme Court for permission to appeal in judicial review challenges to DCOs.

Recommendation 10

The Planning Court and Court of Appeal should be invited to publish data on a 3 month rolling basis which, at minimum, should indicate the number and percentage of cases which in the last 3 month period have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average and maximum turnaround times have been in that period (for both the permission and the substantive stages).