On 23 January, Sir Keir Starmer announced plans to ‘stop blockers getting in the way’ of infrastructure development, by introducing restrictions on judicial review of infrastructure projects. Notwithstanding this government’s consistent commitment to reforming the planning system, so as to galvanise infrastructure and housing delivery, and its forthcoming Planning and Infrastructure Bill, the announcement of these particular proposals may have come as something of a surprise to public lawyers. The proposals are, though, largely reflective of an Independent review into legal challenges against Nationally Significant Infrastructure Projects led by Lord Banner KC (‘the Banner Review’), which was commissioned by the previous Conservative government, and they follow on from the Ministry of Justice’s call for evidence on implementing some of Lord Banner’s proposals, which ran from 28 October 2024 to 30 December 2024.

Ordinarily, we might expect an independent report and government call for evidence on judicial review reform to command the attention of public law’s great and good. Yet this particular cycle seemed to come and go without many public law scholars and commentators even noticing. This is surely due, in part, to the common siloing off from mainstream judicial review discussion of planning law judicial reviews, which Joanna Bell has aptly labelled ‘the unwanted guests at the judicial review party’. Planning judicial review, so Bell argues, has its own distinctive grammar, such that it may ‘appear impenetrable’ (p.229). It is perhaps unsurprising, then, that in contrast to, say, the widespread and impassioned response to something like the previous government’s Independent Review of Administrative Law – a reform and consultation process which potentially carried implications across the judicial review system generally – a call for evidence on reforms to judicial review of Nationally Significant Infrastructure Projects in particular (of which there had only been 34 judicial review claims at the time of the Banner Review) has ignited far fewer passions.

The background to reform

The background to judicial review reform here is as follows. Nationally Significant Infrastructure Projects (NSIPs) are major infrastructure projects – related to either energy, transport, water, waste water, or waste – which, by virtue of their national importance, are approved by the government through a consent process contained within the Planning Act 2008, rather than through ordinary town and country planning approval processes by local planning authorities (i.e. a given local council). The Planning Act’s process for approving major infrastructure projects is effectively split into two stages. First, at a relatively general level, the government produces a National Policy Statement (NPS), which settles what government policy is on the particular type of infrastructure development (such as the NPS for renewable energy infrastructure, or the Airports NPS). These NPSs, of which there are 12, tend to set out a statement of the country’s need for the given type of infrastructure, and provide guidance for decision-makers (the relevant Secretary of State) when deciding whether to grant consent for a specific project. This is the second stage of decision-making: for infrastructure projects which fall within the scope of an NPS, applicants can apply to the Secretary of State for a Development Consent Order (DCO), which, if granted, provides authorisation for that project.

This approach is designed in several ways to streamline the process for approving infrastructure projects that align with government priorities. In settling government policy to the given type of infrastructure through an NPS at a high-level, it seeks to avoid big picture policy questions being raised by parties when contesting the approval of particular projects – as was the case in certain planning inquiries in the 1980s-90s, such as those for Heathrow Terminal 5, and the Sizewell B nuclear reactor, which both took years to resolve amid significant contestation from parties over the principle of development. Meanwhile, the DCO procedure is intended as a ‘one stop shop’ for granting consent to the particular project, avoiding the need to secure consent for different features of the project under different regimes.

In short, the Planning Act consenting process emphasises infrastructure delivery with minimal disruption and delay, by streamlining the routes of possible contestation. Yet concern has been growing in successive governments and among think tanks such as Britain Remade, the Centre for Policy Studies, and UK Day One that the sought-after efficiency gains of this process are being disrupted by judicial reviews challenging the grant of DCOs – even if those claims do not succeed, engaging in the legal process adds substantial time before projects can proceed, and adds significant costs and uncertainty for developers. These are, in principle, legitimate concerns, and led the previous Sunak government to commission Lord Banner KC to conduct his aforementioned independent review. The current government intends to take some of the Review’s recommendations forward.

The government’s proposals

The proposals which the government has announced thus far are, it must be said, in a relatively minor key. When the Sunak government commissioned the Banner Review, Lord Banner was tasked with assessing ‘options to discourage repeated and potentially inappropriate legal challenges that add significant taxpayer costs, while maintaining access to justice in line with our domestic and international legal obligations’. This emphasis on maintaining access to justice in line with (especially international) legal obligations is welcome, and meant that Lord Banner found no case for reforms to, in particular, the Aarhus costs rules – the costs protection regime within Part 46 of the Civil Procedure Rules which seeks to comply with the UK’s international Aarhus Convention obligations on access to environmental justice. Rather, one of the main areas of focus for proposals in the Banner Review related to the permission stage of judicial review, and reforms to permission represent the only substantive proposals contained in the government’s recent announcement.

In addition to the permission stage proposals, the Banner Review also recommended a number of practice changes designed to encourage efficient case management in NSIP judicial reviews, such as introducing automatic pre-permission Case Management Conferences, and setting target timescales in the Court of Appeal to seek speedy resolution of claims in that Court (mirroring target timescales already in place for ‘significant’ claims in the Planning Court, the specialist court list within the High Court that considers planning judicial and statutory review challenges). The timescales in the Court of Appeal would be as follows: to determine permission to appeal applications and appeals against the refusal of permission for judicial review within four weeks; and to determine substantive appeals four months from the permission to appeal application. It is unclear whether the government is taking such practice changes forward, although, as discussed below, there is reason to suspect that at least the target timescales will be adopted.

Claimants seeking to bring a judicial review claim must be granted permission at an early stage in proceedings, before being able to proceed to a full hearing. At present, claimants effectively have what Lord Banner referred to as ‘three bites of the cherry’ to be granted permission: first, claimants seek permission ‘on the papers’, where a judge in the High Court decides whether to grant permission based on the papers before them (i.e. without an oral hearing). If the judge grants permission on the papers, the case can proceed to a full hearing. If the judge refuses permission on the papers, the claimant can renew their claim and seek permission at an oral renewal hearing in the High Court. If permission is again refused at that stage, the claimant may seek permission again at the Court of Appeal.

How far, and in what manner, this state of affairs could be streamlined for challenges to NSIPs under the Planning Act specifically received a good deal of consideration in the Banner Review. The rationale for streamlining here is that, without necessarily presenting a significant restriction on access to justice, reducing the number of ‘bites of the cherry’ could speed up the timeline for infrastructure projects which face legal challenges that lack sufficient merit to be granted permission. As Lord Banner put it (at para 65), ‘each bite extends the duration of a judicial review claim by several weeks at minimum and several months in some cases.’ Lord Banner was clear that the ‘three bites of the cherry’ ought to be reduced, and proposed a suite of options to achieve this streamlining (para 65). What Lord Banner made clear was that the initial papers permission stage should be removed (para 67). The question then was whether there should be two opportunities to get permission – an oral hearing in the High Court and, if unsuccessful, a renewed hearing in the Court of Appeal – or one opportunity – an oral hearing in the High Court only.

Which of these options to pursue, Lord Banner indicated, may depend on whether other recommendations in his Review were taken forward – in particular the introduction of target timescales in the Court of Appeal. If target timescales were introduced in the Court of Appeal, so the logic goes, the second bite of the cherry would be less burdensome in terms of timing, as the Court of Appeal would be processing claims more efficiently in any event. From the government’s announcement on 23 January, it is clear that Lord Banner’s recommendation to remove the paper stage is proceeding: for challenges to NSIPs, the ‘current first attempt – known as the paper permission stage – will be scrapped.’ For most claims, though, it appears that the government’s approach is to maintain two ‘bites of the cherry’ – an oral hearing in the High Court and, if unsuccessful and renewed, one in the Court of Appeal. This may indicate that the proposed target timescales in the Court of Appeal are indeed also being introduced.

When considering the various ways in which government might (and recent governments have) restrict(ed) the judicial review process – whether through ouster clauses, limiting the time limits for certain types of challenges, or tightening the rules on costs-capping orders – removing the paper permission stage for NSIP judicial reviews specifically is relatively small-scale and appears proportionate to the importance of improving the country’s infrastructure delivery record. Indeed, another proposal considered in the Banner Review –which Lord Banner himself appeared cautious to endorse – was to raise the permission threshold in NSIP judicial reviews from the standard approach of ‘an arguable ground for judicial review which has a realistic prospect of success’. It was considered whether the heightened threshold elucidated in Mass Energy Ltd v Birmingham City Council [1994] Env LR 298 could apply, namely that a case should be ‘likely to succeed’ if granted permission, and therefore a ‘strong’, rather than simply ‘arguable’, case. For reasons well outlined in Elizabeth O’Loughlin and Maurice Sunkin’s submission to the call for evidence on implementing the Banner Review, adopting this higher threshold in NSIP cases appeared inadvisable and potentially counterproductive to the aims of reducing delay, cost, and uncertainty. From the government’s announcement, it appears that this proposal has not been adopted.

In terms of securing access to justice and ensuring that the rule of law can be meaningfully enforced, research on the permission stage by Varda Bondy and Maurice Sunkin indicates that what is key is that claimants have the opportunity to argue their case orally. Their research indicates that a regular dynamic involves permission being refused on the papers before being allowed upon oral renewal. While it should be noted that the practitioners participating in their research were largely supportive of the paper permission stage, there were concerns raised by some solicitors that judges do not always understand the case before them when deciding on the papers. This indicates that retaining opportunity for oral advocacy is key, to avoid the risk of mistakes being made that result in justice not being done (p. 61). As such, it is welcome that the government appear to be retaining two opportunities for an oral hearing as to permission, to ensure any errors are corrected and to ensure access to justice and fair outcomes. In his Review, Lord Banner notes (at para 71) that:

in approximately half of the NSIP cases where the claimant has appealed against the refusal of permission by the High Court, the Court of Appeal has disagreed with the High Court and granted permission.

This appears evidence enough to demonstrate the wisdom of retaining the option of a second oral permission hearing at the Court of Appeal, maintaining the potential for mistakes to be corrected.

There is, though, one exception to the retention of the ‘two bites of the cherry’, which will apply to claims which are certified as ‘Totally Without Merit’ at the oral hearing in the High Court. The government’s announcement on this is as follows:

… 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 other cases.

This is an interesting development that requires some context. When a judge determines permission and decides to refuse permission, they may in some circumstances certify that the case before them is ‘Totally Without Merit’ (TWM) – in effect, that it is bound to fail. To be clear, not every claim that is refused permission is classed as TWM, but only a subset which are regarded by the High Court judge as truly hopeless. Per Part 52.8(2) Civil Procedure Rules, where a case is considered on the papers by the High Court and certified as TWM, the claimant cannot seek an oral renewal of permission to bring the judicial review, and can only apply to the Court of Appeal for permission to appeal. The Court of Appeal will itself consider this permission to appeal application on the papers. This means that hopeless cases are filtered out, sometimes without ever receiving an oral hearing, but while retaining a safeguard that the Court of Appeal can consider, on a written application, whether to grant permission to appeal.

In proposing to prevent the Court of Appeal being asked to reconsider NSIP judicial reviews deemed as TWM, perhaps the government is conscious that removing the paper permission stage at the High Court could result in some claims that may have ordinarily been certified as TWM at the papers stage and weeded out being heard at oral hearings (because the papers stage is being removed). This may explain the desire to remove the safeguard option of applying to the Court of Appeal to request permission to appeal: because such cases will have had the benefit of oral advocacy in a High Court hearing, it may be argued there is less risk of mistakes being made compared to cases which are certified as TWM on the papers only, without ever having the opportunity to argue the case orally. Taken in the round, and given the pressing infrastructure goals, this may be why removing the Court of Appeal safeguard for this subset of cases has been seen as proportionate, as claimants in NSIP cases will automatically have the opportunity of oral advocacy in the first instance.

The response and the future

The government’s announcement of these reforms immediately received a range of reactions, often falling along relatively unsurprising lines. From the environmental sector, The Guardian’s reporting featured critical comment from Niall Toru, senior lawyer at Friends of the Earth, and from Dr Ruth Tingay, co-director of the nature conservation group Wild Justice, which has brought a number of judicial reviews against the government. Dr Tingay argued the ‘proposal doesn’t make any sense whichever way you look at it’, noting that:

[C]ampaigners can only take judicial reviews if their case does have merit, as judged by the high court. So to then allow another judge to block an appeal on the basis that the case is ‘totally without merit’ is nonsensical and will lead to problems of accountability and lack of scrutiny.

There are potentially legitimate concerns around accountability associated with the TWM reform, as the already limited opportunities to contest the High Court judge’s first instance decision that a case is TWM are, in the NSIP context, now extinguished, increasing the potential for mistakes to be made. With respect, though, Dr Tingay’s comment appears to overlook that it is the High Court judge deciding permission who will certify that the case is TWM, and that if the High Court does indeed regard the case as having merit, there is no reason to be concerned about the TWM procedure. Indeed, as indicated above, the TWM procedure rarely applies even among cases which are refused permission – only that subset deemed ‘bound to fail’ – and a judge will only certify a case as TWM if ‘confident after careful consideration that the case truly is bound to fail’ (R (Grace) v SSHD [2014] EWCA Civ 1091 at [15]). We may speculate whether, for NSIP cases, a High Court judge will be particularly cautious to label a claim TWM given there will be no route of appeal whatsoever. While used relatively frequently in the immigration context, there is little indication that planning judicial reviews are regularly certified as TWM, and Lord Banner expressly noted (at para 129) that, among the stakeholders he consulted in conducting his Review:

there was broad support for the Planning Court making greater use of the ability to certify a claim as TWM. There was a general feeling that this power had not been exercised as widely as it might have been in the DCO context.

Without expressing a view on that sentiment, it does demonstrate that the TWM reforms will likely apply to a rather small subset of an already small sample of cases challenging NSIPs (at the time of the Banner Review, 34 claims). This is not to dismiss concerns about accountability as regards the first instance High Court decisions, but to place them in context.

At the opposite end, some welcomed the government’s announcement but felt it did not go far enough. In a thread on Bluesky, Sam Dumitriu, Head of Policy at Britain Remade (one of the think tanks most prominently supporting reform of planning legal challenges), regarded the announcement as ‘really positive news’, but noted it ‘doesn’t limit the potential grounds people have to sue a major project’ and suggested there is:

a case for going further. When there’s a project like Heathrow where the Government are fully in favour, but JR is all but certain, they should use private bills with ouster clauses to preempt legal challenges.

For some public lawyers, perhaps reading a hint towards ‘ouster clauses’ causes a shudder. Dumitriu’s comments also suggest a shift in focus from the procedural question of the permission stage – relatively low-hanging fruit for reformists – towards questions of whether and how to restrict particular substantive grounds of review in the NSIP context. Irrespective of whether one agrees with Dumitriu here, this account indicates that, for some influential voices in the discussion on reforming the planning system and planning litigation, the proposals introduced here may not go far enough.

Equally, what is notable from the government’s announcement is a broad acceptance that there exists a ‘challenge culture’ where ‘small pressure groups’ disrupt progress through litigation. The language of a ‘challenge culture’ may raise concerns, particularly given the small number of NSIP judicial reviews from which this suggested trend appears to have been drawn. Indeed, Keir Starmer has received pushback in the media for criticising the judicial review activity of an individual environmental campaigner. Perhaps more so than the concrete proposals contained in the government’s announcement, its accompanying framing of a ‘challenge culture’ may signal its future direction of travel in this area. Accordingly, whatever the shape of these particular reforms when properly introduced, this appears unlikely to be the final word on the matter of NSIP judicial reviews.

Sam Guy is Lecturer in Law at the University of Sheffield

(Suggested citation: S. Guy, ‘The Government’s Plan to Reform Infrastructure Judicial Review’, U.K. Const. L. Blog (28th January 2025) (available at https://ukconstitutionallaw.org/))