In recent years, there has been increasing pressure on the UK Government to implement changes that will streamline legal challenges of Nationally Significant Infrastructure Projects (NSIPs). On 23 January 2025, the UK Government confirmed that it will amend the planning regime governing judicial reviews of development consent orders (DCOs) and National Policy Statements (NPS).
Background to the proposals for reform of NSIP judicial reviews
The proposed changes follow some of the recommendations put forward by Lord Charles Banner KC (the Banner Recommendations), who was tasked by the previous government to conduct an independent review of judicial review proceedings against NSIPs under the Planning Act 2008. The implementation of the Banner Recommendations was considered during the Ministry of Justice’s call for evidence, which concluded on 30 December 2024.
The proposed changes form part of the UK Government’s Plan for Change and its desire to reform the current planning system in the UK, in order to facilitate the making of 150 decisions on major infrastructure projects, as well as domestic and foreign investment in such projects. The financial implications of judicial challenges against NSIPs are considered significant, with major road projects, for example, accumulating costs amounting up to £121 million per scheme as a result of delays caused by legal challenges.
In its announcement, the UK Government explained that in recent years, 58% of decisions on DCOs have been challenged via judicial reviews. Out of 30 legal challenges that have been brought against large-scale infrastructure projects, only four decisions were overturned by judges. The UK Government also referred to research which suggests that, on average, judicial review proceedings where NSIPs are challenged take around 1.4 years to come to an end, and over 10,000 working days are spent by the courts dealing with these types of cases.
Overview of the proposed changes
Under the current regime, applicants are given “three bites of the cherry”, namely the paper permission stage, the option to renew to an oral permission hearing, and the right of appeal to the Court of Appeal. The UK Government has proposed that the paper permission stage is scrapped altogether, and instead judicial review applications should proceed straight to an oral hearing. Should the judge hearing the judicial review application determine that a case is totally without merit, applicants will be barred from asking the Court of Appeal to reconsider the case. For all other cases, a request to appeal will be permitted. The UK Government’s intention behind this change is to streamline the judicial review process, reduce costs incurred by the parties preparing for an additional stage in judicial review proceedings, and to allow for quicker resolution of legal challenges.
This change will require updates to primary legislation and to the Civil Procedure Rules. The Planning and Infrastructure Bill (the Bill), which was first announced in the King’s Speech in July 2024 and was introduced to the House of Commons on 11 March 2025, contains draft wording at Clause 8 which confirms that the permission stage and the right to appeal cases that have been certified as totally without merit will be removed from future judicial review proceedings. The Bill will also introduce a number of other changes to the laws governing planning and infrastructure in the UK.
The Explanatory Notes to the Bill provide an overview of how the new process will likely work in practice: “Claimants seeking to challenge a NPS or development consent decision would make an application to the High Court within six weeks of the NPS or decision being published. Subject to the application being completed within the time limit and providing all the required information, an oral permission hearing at the High Court would be scheduled. The court would then consider the claimant’s permission request at that hearing. Should the court grant permission for judicial review, the case would progress to a substantive hearing. Should the court refuse permission for judicial review and the claim be deemed totally without merit, that decision would be final, and the case could not be appealed to the Court of Appeal. If the High Court refuses permission for judicial review at the oral permission hearing but the case is not deemed totally without merit, the claimant may appeal the refusal of permission to the Court of Appeal.”
In addition to scrapping the paper permission stage, the UK Government has announced that it will also, via amendments to primary and secondary legislation:
- introduce non-mandatory case management conferences to NSIP judicial reviews;
- formally designate NSIP judicial reviews as significant planning court claims; and
- work with the courts to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court.
Anticipated timelines for proposed reforms and next steps
The Bill is currently at the House of Commons Committee stage, having had its second reading in the House of Commons on 24 March 2025, and is expected to pass through Parliament later this year. On 25 March 2025, the Public Bill Committee published a call for evidence and expects to report on any written responses received by 22 May 2025. At the time of writing, no changes have been proposed by MPs to the wording of Clause 8 of the Bill, however amendments may well be made over the coming weeks and months, as the Bill gets dissected line by line.
It is worth noting that different timeframes will apply to different clauses, meaning that some provisions will not come into force until six months after Royal Assent has been given. With respect to the proposed judicial review reforms, the Explanatory Notes to the Bill explain that Clause 8 will “come into force two months after the day on which Royal Assent is given”, further specifying that “the amendments to the Civil Procedure Rules required by this clause will come into force on a date to be prescribed in regulations”.
Impact of proposed reforms on NSIPs
On the whole, the proposed reforms are welcome news for businesses that will be involved in the development of NSIPs when the provisions of the Bill come into force. The removal of the paper permission stage from the judicial review process should result in some short- and long-term cost savings for businesses that would be affected by delays to NSIPs, as applications that are certified by the court as totally without merit at the oral hearing stage will be weeded out early on in the process. In theory, the proposed reforms should also boost investor confidence in project budgets. Charles Emond, the President and CEO of Canadian pension fund CDPQ, opined that proposed reforms may also have a positive impact on foreign investors’ perception of the UK’s regulatory environment.
That said, whether the proposed reforms will have the intended effect of significantly reducing the delays caused by legal challenges of NPS and DCOs remains to be seen.
Where an applicant’s case is deemed “totally without merit”, the proposed reforms would limit applicants to just one “bite of the cherry”, with no opportunity to seek permission to appeal. This is a high standard that goes well beyond the usual permission threshold of being “arguable” with a “realistic prospect of success”. It is already rare for a judge to declare any of an applicant’s grounds to be totally without merit; it is even rarer for a judge to declare an applicant’s entire claim to be totally without merit. It will remain to be seen how often judges will decide that a claim is totally without merit, though judges will likely be reluctant to conclude that a case is “bound to fail” [1] in its entirety, such that no further appeal is possible. In addition, the removal of the paper permission stage from the NSIP judicial review process will inevitably result in an influx of hearings, once Clause 8 comes into force. In practice, the additional hearings that the new process will require may be difficult to accommodate in circumstances where the Administrative Court is already very busy.
Following the UK Government announcement, some organisations expressed that more needs to be done to meaningfully address the delays caused by judicial reviews of NSIPs. For example, Sam Dumitriu, Head of Policy at Britain Remake, a think tank, commented in a thread on Bluesky that for reforms to be effective, they will need to go much further, suggesting that for large infrastructure projects, where “JR is all but certain, they [the UK Government] should use private bills with ouster clauses to pre-empt legal challenges”.
There are many opportunities ahead for amendments to be tabled, both in the House of Commons and the House of Lords. Given the intensity of the political interest in the Bill and the broader policy underpinning it, we expect to see a few more twists and turns during its passage.
If you have any questions regarding the Planning and Infrastructure Bill, please contact a member of the team or your usual Freshfields contact.
[1] R (Grace) v. SSHD [2014] 1 W.L.R. 3432 per Maurice Kay LJ at [13].
