The Law Society of England and Wales has called for more evidence to be gathered before restrictions are placed on judicial review appeals involving nationally significant infrastructure projects..
The government鈥檚 Planning & Infrastructure Bill is seeking to simplify and speed up the planning system for major infrastructure projects. 聽Its measures include a reduction in opportunities for scheme opponents to launch judicial reviews.
The Nationally Significant Infrastructure Planning (NSIP) regime was established through the Planning Act 2008 as an attempt to streamline the decision-making process by which major infrastructure projects secure planning approval, in the form of a development consent order (DCO), from the relevant secretary of state rather than the local planning authority. However, lawyers had a field day with applications for judicial reviews and national project stalled.
The previous Conservative government commissioned planning barrister Lord (Charles) Banner in February 2024 to look into how legal delays could be reduced. The Labour government, on taking over power last year, inherited this project and published the Banner Review in October. Banner said, for example, that the current three bites of the cherry to obtain permission to apply for judicial review should be reduced to either two or one. This is what forms the basis of the changes to the NSIP process set out in the Planning & Infrastructure Bill.
The Law Society does not agree with Lord Banner on this, nor the government.
鈥淲e appreciate the need for critical infrastructure projects to deliver growth. However, we are concerned that this restriction on judicial review appeals could prevent legitimate cases from being heard,鈥� said Law Society president Richard Atkinson.
鈥淛udicial review in the context of NSIPs does not consider the merits of the proposed infrastructure project, only whether the development consent order has been made lawfully. While pursuing certainty through ensuring swift administration of justice is worthwhile, any reforms must balance efficiency with maintaining access to justice.
鈥淪topping people from seeking permission to appeal to the Court of Appeal where an NSIP appeal has initially been deemed 鈥榯otally without merit鈥� may seem superficially attractive, but we do not currently know how many such NSIP claims were later successful. If there are claims where this is the case, then this measure could exclude valid cases and deny access to justice by preventing the decision being reconsidered.鈥�
The Planning Bill also proposes removing the paper permission for NSIP judicial reviews.
鈥淭he experience of our members is that making permission decisions on the papers saves costs and resources for both parties and the courts,鈥� added Richard Atkinson.
鈥淚n contrast, the preparation required for an oral hearing can be extensive, and there are additional costs to attending a hearing which would be borne by both parties.
鈥淪treamlining judicial review on permission decisions should be evidence led, particularly when considering the importance and impact of NSIPs. The government should therefore analyse and publish further evidence on the number of cases initially deemed totally without merit which were then later successful. Officials should also look at the cost implications of removing the paper permission stage to allow assessment of the impact on access to justice.鈥�
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