Judicial review and nationally significant infrastructure projects call for evidence – Law Society response

NSIPs are major infrastructure projects within energy, transport, water, wastewater and waste that are not subject to local planning processes.

Instead, these projects receive approval through a development consent order (DCO) granted by the relevant secretary of state.

The MoJ sought views on the recommendations made by Lord Banner KC in the independent review into legal challenges against NSIPs.

The Banner review considered how to reduce delays to infrastructure projects from legal challenges to DCO decisions.

The options for reform it set out include:

• reducing the number of attempts at permission stage to either:
  • one (an oral hearing in the High Court only), or
  • two (an oral hearing in the High Court, with a further possible appeal to the Court of Appeal)
• raising the permission threshold
• introducing a specialist ‘NSIP ticket’ in the High Court so only judges with in-depth experience of NSIPs would be eligible to hear challenges to DCOs
• automatically deeming all DCO judicial reviews as ‘significant planning court claims’
• introducing automatic pre-permission case management conferences
• introducing target timescales and key performance indicators, on which data is published every three months

Our view

It is important that major infrastructure projects are able to progress smoothly to deliver public benefit and provide certainty to those involved in or affected by the project.

However, any reforms must balance efficiency with maintaining access to justice.

Judicial review has a vital place in the UK’s constitutional balance of powers.

It encourages good governance, improves the quality of decision-making, and promotes a culture of accountability that protects individual rights and is attractive to international business investment.

Judicial review in the context of NSIPs does not consider the merits of the proposed infrastructure project: only whether the secretary of state decision to approve or reject it has been made in accordance with the law.

Our recommendations

We disagree with the recommendations made to raise the permission threshold and reduce the number of permission stages to one.

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.

We agree in principle that there are benefits to the recommendations to:

• designate challenges concerning DCOs as ‘significant planning court claims’
• make use of case management conferences
• introduce target timescales and key performance indicators

We also recommend:

• 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

Next steps

The call for evidence closed on 30 December 2024.

Find out more about the call for evidence

Explore the findings of the independent review into legal challenges against nationally significant infrastructure projects.