Government vows end to “challenge culture” in transformation of judicial review process for major infrastructure projects

The Government has committed to reducing the number of permission stages against Development Consent Orders (DCOs) issued for large infrastructure projects in an attempt to keep nationally significant schemes from being held up by legal disputes.

Under the plans, claimants will have the chance to bring a legal challenge against a major infrastructure project just once instead of three times.

Prime Minister Keir Starmer said today (23 January) that the reform would put an end to "challenge culture" and keep people from using the courts to "frustrate growth".

The decision comes less than a month on from the end of the Government's call for evidence on the proposals, which were based on the findings of an independent review led by Lord Banner KC.

The independent review looked at 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.

Lord Banner recommended that claimants should have fewer 'bites at the cherry' when seeking permission for judicial review of development consent orders (DCOs), suggesting there should only be one or two chances to challenge a DCO.

The proposal was met with opposition from the Law Society, which said it disagreed with reducing the number of permission stages.

However, the Government has said it now plans to scrap the current first attempt, also known as the paper permission stage.

The Government's statement added: "Primary legislation will [also] be changed so that where a judge in an oral hearing at the High Court deems the case 'Totally Without Merit', it will not be possible to ask the Court of Appeal to reconsider.

"To ensure ongoing access to justice, a request to appeal second attempt will be allowed for other cases."

The Government described the reforms as "another victory for the builders over the blockers".

It also pointed to data that show over half (58%) of all decisions on major infrastructure were taken to court, and highlighted a number of schemes that had been delayed by challenges, including the Sizewell C nuclear power plant and the A47 National Highway Project.

The Prime Minister said: "For too long, blockers have had the upper hand in legal challenges – using our court processes to frustrate growth.

"We're putting an end to this challenge culture by taking on the NIMBYs and a broken system that has slowed down our progress as a nation.

"This is the government's Plan for Change in action – taking the brakes off Britain by reforming the planning system so it is pro-growth and pro-infrastructure."

Lord Banner said: "In the course of my review, I saw broad consensus from claimants to scheme promoters that a quicker system of justice would be in their interests, provided that cases can still be tried fairly.

"I am therefore pleased to see the government acting on the back of my review."

"In particular, reducing the number of permission attempts to one for truly hopeless cases should weed out the worst offenders, without risking inadvertent delays because judges choose to err on the side of caution."

Responding to the news, David Richardson, partner and head of planning at Ashfords law firm, said: “It isn’t uncommon for a refusal of permission to proceed with a judicial review claim ‘on the papers’ to then be overturned following a renewal hearing.

“To streamline that process it makes sense to cut to the chase and go straight to a hearing which allows the claimant to argue their case in person.”

He added: “Access to the courts isn’t limited by that, and the duplication of arguing the points already presented at the first stage is removed.”

Although Richardson warned that the reform could place a greater burden on the courts as “waiting for a listing can be one of the key delays in the process”.

Commenting on the introduction of the concept of claims being totally without merit, Richardson said: “The bar is (arguably correctly) high before harsher consequences are imposed following that finding.

“In any event it doesn’t appear that the Planning and Infrastructure Bill will look to change that test.

“But the steps to reduce the number of times what might colloquially be called a ‘no hoper’ are positive, given the national importance of these infrastructure projects.”

Adam Carey