Planning and Infrastructure Bill introduces the first of the Government's reforms to judicial review of NSIPs

The Government's hotly anticipated Planning and Infrastructure Bill (PI Bill) was published on 11 March 2025 and contains a host of measures that the Government hopes will unblock the planning system and streamline infrastructure consenting. Among the provisions, confined to one short section, was the legislative basis for two much-trailed reforms to the process for judicial review (JR) of nationally significant infrastructure projects (NSIPs):

1. removing the initial decision by a judge "on the papers" whether to grant a claimant permission to apply for JR and instead having that decision made at an oral hearing; and
2. removing the right of appeal to the Court of Appeal where a claim is decided by the High Court at that initial oral hearing to be "totally without merit".

Provisions of the PI Bill

The PI Bill's JR changes apply only to JRs of national policy statements (NPSs), including their preparation, review (or lack thereof) or suspension; and development consent orders (DCOs), including their grant, refusal, change or a refusal to accept a DCO application (Planning Act matters). Neither provision applies to any JR of matters falling outside the national infrastructure consenting regime in the Planning Act 2008, though if these reforms prove helpful in speeding up challenges then wider reforms may follow.

The PI Bill implements (1) by directing that the Civil Procedure Rules (CPR) be amended to require an application for permission to apply for JR of a Planning Act matter to be decided at an oral hearing. This will condense into a single oral hearing the current process of a permission decision being made by a judge "on the papers" which, if permission is refused, can be "renewed" by the claimant and heard again at an oral hearing.

The PI Bill implements (2) by amending the list of matters in the Senior Courts Act 1981 for which there is no right of appeal to the Court of Appeal (a select list including decrees absolute of divorce!) to include a refusal of permission to apply for JR of a Planning Act matter by the High Court, where the High Court decides that the application is "totally without merit". The PI Bill also directs that the CPR include provision that the High Court may, at the oral permission hearing, decide that the application is "totally without merit" (though it is not clear to us what this adds to the current ability of the Court to do so in CPR 23.12).

The introduction of these reforms in the PI Bill follows a written ministerial statement of 23 January 2025 which confirmed that the Government was proceeding with several of the recommendations of Lord Banner KC following his review of NSIP JRs (discussed by our public law team here), with some tweaks (ie removing the right of appeal only for applications deemed "totally without merit").  Whilst the PI Bill introduces arguably the two most impactful of the measures previously announced by Government, it does not make any provision for the other measures (target timescales for NSIP JRs in the Court of Appeal and Supreme Court; non-mandatory case management conferences; and automatic designation of NSIP JRs as "significant planning court claims" under the CPR). These will presumably be implemented in due course under existing powers or by non-legislative means, though the Government has not announced anything on timing. 

Commentary

We have previously written about the difficulties of reforming JR and discussed Lord Banner KC's review.

Whilst the changes introduced in the PI Bill are a welcome direction of travel for NSIP developers, the removal of the paper permission stage is worthwhile but not radical and the appeal restriction will only curtail the most hopeless of legal challenges, where the application is designated by the High Court as "totally without merit" – a high bar that goes well beyond the standard permission threshold of being "arguable" with a "realistic prospect of success". As the Government's own European Convention on Human Rights Memorandum on the PI Bill states, the threshold is "high" and they "expect the judiciary to exercise caution when certifying cases as such".

It is unclear from the wording of the PI Bill whether specific grounds that are held by the High Court to be "totally without merit" will be prevented from being appealed to the Court of Appeal if other grounds in the same application are refused permission as "unarguable" but are not classified as "totally without merit". We assume that Government's intention is to prevent the appeal of meritless grounds in those circumstances, but the drafting in the PI Bill refers specifically to classifying the "application for permission to apply for judicial review" as "totally without merit" and restricting any appeal of such an "application". Ideally this would be clarified in the PI Bill before enactment, though it is noted that the existing procedural rule on certification as "totally without merit" in CPR 23.12 does also refer to applications rather than grounds.  

Now it is over to Parliament to debate and pass the PI Bill, with the Government hoping for Royal Assent before the summer recess. Once enacted, the judicial review provisions will only come into force on a date to be appointed in regulations, and would then require the relevant change to be made to the CPR to remove the paper permission stage.