Judicial review reform ‘one step’ to enabling UK infrastructure development

Robbie Owen and Heidi Slater of Pinsent Masons were commenting after the UK government confirmed it would be taking forward recommendations made by Lord Charles Banner KC last autumn, following his review into legal challenges against ‘nationally significant infrastructure projects’ (NSIPs), and after the courts refused permission to apply for a judicial review of the government’s decision to issue a development consent order authorising the A66 Northern Trans-Pennine improvement scheme. Pinsent Masons acted for National Highways in the A66 case.

Judicial review is a form of legal challenge that essentially means a court will audit the legality of decision-making by a public body in the UK. In his review, Lord Banner recommended limiting the scope to raise judicial review proceedings in respect of NSIPs and ensuring speedier resolution of such proceedings where they are lodged.

In his report, Banner said that it is “excessive” that those seeking to challenge NSIPs have three opportunities to obtain permission to do so. He said there should just be one or two opportunities to obtain permission for judicial review, at the High Court and at the Court of Appeal. The government has now confirmed that it will implement this change.

In a written statement submitted to parliament on Thursday, justice minister Sarah Sackman said: “The government today confirms that the current permission stage for NSIP judicial reviews will be overhauled. Instead of the current position where a claimant has ‘three bites of the cherry’ – a paper permission stage, an option to renew to an oral permission hearing and, if unsuccessful, a right of appeal to the Court of Appeal – the new process will be streamlined. Hopeless legal challenges will have just one attempt rather than three to challenge a development consent decision.”

“The current first attempt – known as the paper permission stage – will be scrapped. All applications for permission will go straight to an oral hearing resulting in less cost to the parties. Primary legislation will 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 all other cases,” she said.

Lord Banner had further advised the government to consider raising the permission threshold for judicial review claims challenging development consent orders (DCOs), which are the instruments used to consent NSIPs. He also said consideration should be given to whether a small pool of judges with NSIP experience should be designated to hear DCO judicial reviews under a so-called ‘NSIP ticket’ within the Planning Court and recommended that Civil Procedure Rules be updated to ensure that DCO judicial reviews are automatically deemed ‘significant Planning Court claims’, to ensure they are dealt with promptly.

Sackman said that the full government response to the call for evidence it opened on the Banner review recommendations will be published in due course, however she confirmed the government will “introduce non-mandatory case management conferences to NSIP judicial reviews; formally designate NSIP judicial reviews as significant planning court claims; and work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court”.

Prime minister Keir Starmer said the reforms would put an end to the “challenge culture” and prevent the delivery of major infrastructure projects from being unduly delayed.

The judicial review reforms form just one part of a wider initiative to speed up infrastructure delivery in the UK. Some changes to the planning regime have already been made by this and the previous government, with a further package of legislative changes anticipated via the Planning and Infrastructure Bill – legislation that is expected to be introduced into parliament this spring.

Owen said: “Whilst we await detail of the government’s proposals for reforms to the NSIPs planning process to be included in the Planning and Infrastructure Bill, these changes to judicial review are a step in the right direction but they are relatively minor and do not move the dial nearly enough. The government should be providing for any nationally significant infrastructure project that is a critical national priority to be immune from judicial review altogether, by the DCO for the project being confirmed by parliament through a one clause bill after it has been through the DCO process successfully – there are precedents for this in the relatively recent past and parliamentary confirmation would take considerably less time than the long delays judicial reviews can result in.”

“However, the government also needs to recognise that judicial reviews of national policy statements (NPSs) – the documents against which NSIP applications are assessed – also delay the NSIPs that depend on them. So, if government is serious about wanting to see the growth the chancellor has this week talked about, legislation is needed to require parliament to approve updates of NPSs every five years. That should then pave the way for those NPSs to be immune from judicial review for five years, as regular parliamentary approval justifies excluding judicial reviews then, and also in-between reviews,” he said.

The application for a judicial review of the A66 project was led by protest group, Transport Action Network (TAN), which sought permission for a judicial review of the Secretary of State’s decision to give development consent for the project in March 2024. Prior to that decision, the project had been through a six-month public examination run by the Planning Inspectorate, and through various subsequent rounds of government-led public consultation.

Slater said: “TAN’s grounds of claim focused on the Secretary of State’s consideration of the effect of the A66 scheme on the North Pennine Moors Special Area of Conservation and the North Pennines Area of Outstanding Natural Beauty, and on the scheme’s benefit-to-cost ratio and economic assessment, all of which were matters of planning judgement for the Secretary of State. Rather than being legitimate grounds for judicial review, the grounds of challenge were in essence poorly disguised attacks on the merits of that planning judgement.” 

“Unsurprisingly, given the quality of these grounds of claim, when the High Court heard TAN’s application for permission for judicial review in October 2024 it refused it on all remaining grounds – one ground of challenge having previously been dropped by TAN after it was definitively dismissed by the Supreme Court in a legal challenge to another NSIP. However, TAN didn’t take no for an answer and promptly applied to the Court of Appeal for permission to appeal against the High Court’s refusal. The Court of Appeal has now upheld the High Court’s decision, and rightly so, as the grounds of claim were highly engineered and deliberately conceived to drag the Secretary of State’s decision-making through the courts, appearing to be not so much in the pursuit of justice, but rather devised to cause as much delay as possible to the delivery of vital improvements in national transport infrastructure,” she said.   

Owen added: “This judicial review never got beyond the permission stage, and yet with just two bites at the permission cherry, the application has delayed construction from when the DCO was granted in March 2024 until now – just under 11 months. The delay would probably have been nearly double that had permission to bring the judicial review been granted, then resulting in a full hearing and possibly an appeal too. This demonstrates that today’s announcement of limiting the permission stage to two steps is just not enough and will still result in long and expensive delays to much needed infrastructure.”