Project Nutcracker: No silver bullets found by the Banner Review into judicial reviews of NSIPs... and why it's no surprise

In my May 2024 article "Why reforming judicial review is such a challenge" I predicted that Lord Banner KC, commissioned by the last Government to consider what can be done about judicial reviews of nationally significant infrastructure projects ("NSIPs"), would struggle to come up with much. This has proven to be the case.

I don't write this with any pleasure, nor with any criticism of the efforts made by Lord Banner KC. In the spirit of Project Nutcracker, I simply want us all to be clear, once and for all, about the limits of what can be done, so we can move on to focus on more fruitful areas for reform. The Banner Review has been helpful (implicitly if not explicitly) in confirming this.

In this article I explain why seeking a procedural fix to limit or speed up judicial reviews will always prove elusive. I discuss Lord Banner KC's recommendations in this context.

Why we can't engineer out the judicial review problem

I know that many people will be incredulous that lawyers can't come up with a way to "fix" judicial review. How can this be? At bottom the issue is this: The law is only meaningful to the extent it can be enforced. That means people have the right to question, through the courts, whether rules have been adhered to. This inevitably requires the exercise of judgement (by judges), taking account of highly nuanced facts and circumstances, measured against a body of complex case law. The increase in people availing themselves of their right to question decisions through the courts is annoying for developers and for a pro-growth UK Government. It could also be seen as detrimental to the interests of the wider public, who need more and better infrastructure.

Many countries around the world are experiencing the same phenomenon. The rise of social media, crowd-funding, mis-information, individualism and a lack of trust and respect for public institutions means that more people are exercising their legal rights to try to stop development than in the past.

However, justice and sheer logic mean that:

• If a judge thinks a case is "arguable" and has a "realistic prospect of success" (in other words the law might not have been correctly applied), then the case should be heard. That's the current test for "permission" to have a case heard, and it's surely the right one. Judicial safeguards are meaningless if judges are only allowed to hear claims which are obvious winners without even being heard.
• Even if 75% or 90% of "arguable" cases are unsuccessful, a judge cannot guess which will be winners without hearing them.
• An analogy (not to be pressed too far)... A doctor may be able to rule out cancer from a superficial investigation in some cases (courts can refuse permission to hear obviously hopeless cases). But in other cases, a doctor needs to carry out an operation (hear the case in full) in order to make a diagnosis. We accept that many such operations will end up confirming the tumour was benign (that the legal challenge is without merit), and with hindsight the operation (hearing the case) was a waste of time. But that doesn't mean that carrying out such operations (hearing arguable cases) is wrong. It is an essential part of a good health system. We defer to doctors to make judgements about who it is necessary to operate on, as we must defer to judges to decide which cases merit testing via a hearing.
• Add to this a general principle (under most/all democratic systems) that justice requires some right of appeal, and you can see why there is little scope to limit or speed up judicial reviews except by improving court resourcing so the process runs faster.

It isn't a lack of legal creativity or boldness which stops us adopting radical change. It's unfortunately the flip side of having meaningful safeguards in any legal system (made worse by under-resourcing in the courts).

I applaud Lord Banner KC for his honesty in ruling out a number of flawed ideas that are often floated. The handful of ideas he endorses will unfortunately not be game-changers, for reasons I explain below.

So let's push for better resourcing in the courts, but otherwise can we call off this wild goose chase on judicial review reform?  There are other areas we put our energies into reforming more usefully.

Lord Banner KC's two main proposals... and a maybe

Having managed your expectations and provided an apology in advance on behalf of the legal profession, let's look at the detail of what is proposed.

Lord Banner KC's independent Review in relation to legal challenges to NSIPs was recently published alongside the Government's call for evidence on implementing its findings.

The Review's main positive recommendations come down to just two things:

1. reducing the number of attempts a challenger can make to get the court's "permission" to have a judicial review heard - from three to one (OPTION 1), or from three to two (OPTION 2). A simplified process diagram below shows what this means in practice; and

2. target timescales at every stage of a case, against which court performance can be measured.

Lord Banner KC also moots the idea of raising the threshold for permission, so that only claims "likely to succeed" can proceed, as opposed to those which are "arguable" and have a "realistic prospect of success" (the current test). It seems unlikely this will be adopted by Government given its implications for access to justice – something I think Lord Banner KC recognises.

For good reasons, some of which we discussed in our earlier article, a number of other ideas (such as raising the current cost cap from which challengers benefit) are considered but recommended against by the Review. There are other procedural proposals (like mandating case management conferences) which could be useful but are ultimately just tinkering around the edges.

To understand what Lord Banner KC is recommending in relation to Option 1 and 2, you need to understand the concept of "permission".  We explained this and how it fits into the whole judicial review process in our May 2024 article "Why Reforming judicial review is such a challenge". In summary, a challenger needs the court's permission to have his/her case heard in full. Currently there are up to three chances ("bites of the cherry") to get this permission, as shown on my diagram below.

OPTION 1: From three "bites" to one

The suggestion here is that the current "First Bite" (decision by a judge "on the papers") would be removed, along with the "Third Bite" (ability to ask the Court of Appeal for permission). Challengers would go straight to an oral hearing on permission in the High Court (the "Second Bite" on my diagram above). If the High Court thinks the case is unarguable, that is the end of the road for the challenger - the case is never heard in full.

This change (unlike Option 2) would require primary legislation.

Such a change may be welcomed by developers who often view it as absurd that requests for permission rejected by planning specialist judges in the High Court can be considered afresh in the Court of Appeal (often by judges less well-versed in planning law).

Three key points to note, however:

1. It won't stop arguable cases going all the way up to the Supreme Court: For cases held to be unarguable, it will be the end of the road for the challenger at the High Court stage (a clear benefit as compared with the status quo). However, if permission is given by the High Court, the case will be heard by that court and then (if lost) it may be heard on appeal by the Court of Appeal and potentially then again by the Supreme Court. There is no suggestion by Lord Banner KC that further bites of the cherry in this sense should be banned. The Review records a median time of between 31 to 40 weeks to obtain judgment in the High Court. Any onward appeals of course add yet more time. Lord Banner KC's one bite approach does not short-circuit this journey for cases given permission. He relies solely on targets to reduce overall timescales, but see my thoughts below on targets.
2. Will Government really allow only one bite? While there is a quasi-precedent for the single bite approach in section 289 of the Town and Country Planning Act 1990 ("TCPA"), the justification underpinning that limitation doesn't read across to a restriction on NSIP legal challenges. Section 289 TCPA challenges relate to appeals against the enforcement of planning conditions which are allegedly being breached (for example, a project being operated in breach of a noise limit). The policy rationale for not allowing a party more than one bite in that context is to avoid them using repeated court proceedings to persist with the breach for longer (thus "winning" extra time even if they ultimately lose the case). In the case of an NSIP project, the justification for one bite would instead be to minimise delay and uncertainty for a consented project. That is a decent reason in many ways but very different from section 289 TCPA. The Court of Appeal^[1] has previously flagged this distinction in an analogous context.  The Government may similarly take the view that, as important as it is to crack on with NSIPs, there is not enough reason to limit access to justice as compared with other areas of public law.  
3. Judges might be more generous to challengers in deciding which cases to hear: We also share the Review's concern that a High Court judge may grant permission for borderline cases if he/she knows that a refusal of permission will be the end of the road for the challenger. This would take away the benefit of the single bite process, and in fact potentially make things worse than the status quo.

OPTION 2: From three "bites" to two

Like Option 1, this option would get rid of the initial decision "on the papers". Instead, a challenger would proceed straight to an oral hearing in the High Court on the question of permission. If refused, the Court of Appeal would still be allowed to rule on permission under this Option (as currently).

This procedural change would not require primary legislation.

Since a challenger dismissed "on the papers" nearly always exercises their right to an oral permission hearing, cutting out this first stage should save a couple of months. The Review records that the median time from issue of the claim form to a permission decision on the papers is eight weeks. A little more time might be saved if Lord Banner KC's proposed four-week target timescale for the initial oral permission hearing were imposed, but see below for my thoughts on targets.

A time-saving of eight weeks is worthwhile, but not radical. As mentioned above, the Review records a median time of between 31 to 40 weeks to obtain judgment in the High Court. Obviously, the timeframe will be longer where the case goes on to the Court of Appeal and Supreme Court thereafter. This journey would be untouched by Option 2.

As an aside, a barrister I spoke to recently had some concerns about getting rid of the "on the papers" stage as he felt that it is often helpful to establish momentum against the challenger's arguments at the oral hearing. His view was that a notional time-saving of eight weeks therefore was not a price worth paying (from a developer's perspective) for removal of this first stage.

Target timescales and reporting

In support of the Option 1 or 2 procedural changes, a host of target timescales are recommended in the Review, against which court performance would be measured. The Review suggests that:

• the Civil Procedure Rules Committee be invited to amend the Civil Procedure Rules ("CPR") to specify that:
  • the High Court's oral permission hearing should be held within four weeks of the deadline for acknowledgements of service from the defendant/interested party; and
  • the Court of Appeal should have a target timescale of four weeks to decide on permission and four months from the application for permission to appeal to hear any substantive appeal; and
• the President of the Supreme Court be invited to consider amending the Supreme Court Rules to introduce a target timescale for determining applications for permission to appeal on NSIP judicial reviews.

Whilst Lord Banner KC's aim of introducing greater certainty and predictability into the process with these timescales is commendable, they may ultimately have little effect in the context of a judicial system that remains under-resourced and in which important claims of all types are vying for priority. This is particularly acute, as the Review acknowledges, amongst cases competing for attention from the Supreme Court.

As described in the Review, the Planning Court is already struggling to meet the timescales it sets itself for "significant planning claims", with the averages hovering just above the targets but with many outliers exceeding it. The Government's Call for Evidence acknowledges this, noting that the Government needs to understand the cause of the delays (particularly at the Court of Appeal and Supreme Court stage) before imposing new timescales. Rachel Reeves may not like the answer – it's almost certainly going to be underinvestment in the judicial system and the shortage of judges.

Even if the Government goes ahead and includes new timescales in the CPR, until it is proven that all levels of the court system can reliably meet them, advice to developers will be that "whilst the target timescale says X, there is no guarantee that this will be adhered to and you should be ready for the process to drag on". Only once the system proves this cynical assumption wrong will target timescales achieve the Review's aim of predictability.

Raising the permission threshold: a maybe for Banner (but seems unlikely)

Alongside the recommendations above, Lord Banner KC has mooted raising the permission threshold so that only claims "likely to succeed" can proceed. However, he concludes only that there "may" be a case for this, subject to further consideration. Given that the Government's Call for Evidence flags that it has a "fundamental concern that raising the permission threshold… could unduly restrict the right of access to justice" it seems unlikely that this is going to make the cut.

My previous article detailed our view on the difficulties in attempting to articulate and apply a more stringent permission threshold and the philosophical arguments which underly any consideration of the level at which the threshold should be set. As we said in that article, what percentage of claimants would we want to see winning to feel that the "right" number of cases were being let through to a full hearing? In any event, regardless of the precise wording of the permission test, judges will likely find a way to their preferred outcome.

Prescribed case management conferences – just another cost?

Requiring case management conferences at an early stage of proceedings could provide a useful forum in which to raise points such as expedition or the level of Aarhus cost caps. It could extract a decision from the court on such matters without having to make an application and wait for an order to be issued. However, it will add to the costs that defendants and interested parties incur.

Further, I question the utility of the "joint position statement" that the Review proposes be filed in the two to three weeks after the filing of the acknowledgment of service. The intention is that this contains confirmation from the claimant as to whether it maintains all of its grounds, and from the defendant/interested party whether it concedes any grounds are arguable. However, in reality, parties are unlikely to drop or concede grounds so early in the proceedings, particularly when there will already have been an exchange in pre-action correspondence. Joint position statements will require time and cost to draft, only to end up confirming each party's existing pleadings.

I also note the mention of interim relief as a topic for submissions at the case management conference. This is likely to cause concern amongst developers, who will see this as an invitation to claimants to seek an injunction against them building out their consented project before the final determination of a claim.

Discarded: the idea of raising cost caps to price out challenges

My previous article acknowledged the frustration among promoters at the low level of the default Aarhus costs caps^[2] in the CPR (the amount the loser has to pay the winner for their legal costs) but concluded that raising these defaults to discourage legal challenges would run contrary to the purpose of the Aarhus Convention and likely cause the UK to be in breach. This is a view echoed by Lord Banner KC in the Review.

The response of some will be to shout "then just leave the Aarhus Convention!" but this brings the risk that the UK would breach its environmental law non-regression commitments in the EU Withdrawal Agreement. Given the Government's emphasis on compliance with international law and its desire to reset relations with Brussels, that is going to be a non-starter. Unsurprisingly, therefore, the Government is not seeking any evidence to support changes to the Aarhus costs caps.

Lord Banner KC does weave into his later recommendation that the case management conference he proposes takes place early in every claim should deal with the parties' positions on the level of the Aarhus costs cap. However, CPR 46.27 already states that any application to vary the cap in a particular case should be made in the claim form (for a claimant) or acknowledgment of service (for a defendant / interested party) and that this should be determined by the court at the earliest opportunity. Dealing with the same points at the early case management conference will therefore change little.

To move the dial there would need to be something akin to a change to CPR 46 to emphasise that judges should more intensely scrutinise a claimant's available resources (perhaps at the new early case management conference) and be more willing to vary the cap if a claimant is found capable of bearing a higher amount. This is particularly relevant to well-funded claimants such as Friends of the Earth or the RSPB, or local objector groups with wealthy backers or proven ability to crowdfund significant amounts. Whilst CPR 46 should arguably already function in this way, in our experience courts are reluctant to depart from the default caps or entertain arguments around a claimant's means.

In any event, the reality is that cost caps could never be raised to a level that would discourage well-motivated objectors, especially in these days of crowd-funding.

Discarded: the idea of limiting who can bring a claim

I agree with the Review that in the context of NSIPs, with potentially significant impacts, it would be difficult to constrain those eligible to challenge a decision. Furthermore, I share the view of the Review's contributors that challenges are unlikely to be brought by organisations that have not been involved in the DCO examination, so any limitation based on that criteria would be pointless.

I found it interesting that Lord Banner KC mentioned the Government's 2013 consultation on limiting the right of local authorities to challenge DCOs, suggesting that some form of targeted restriction or higher threshold for these claimants may have been floated. Few NSIP challenges are brought by local authorities and, in any event, the need to ensure good value for public money will often serve as a check on this – as was the case in the recent abandonment of four local authorities' mooted challenge to the Sunnica solar farm DCO.

Discarded: the idea of a specialist "NSIP ticket"

The Review concludes that there is no need for a specialist "NSIP ticket" (ie restricting the hearing of NSIP cases to a small pool of specialist judges within the Planning Court). It recommends, however, that all NSIP judicial reviews should be treated as "significant planning claims" under CPR PD 54D.

I agree with the Review's conclusions on both of these procedural recommendations – particularly the latter, given this firm's struggle to have AQUIND Limited's challenge to the Government's refusal of consent for the AQUIND Interconnector certified as a "significant planning claim". The tone of the Government's Call for Evidence suggests that confirming in the CPR that NSIP judicial reviews are significant by default is a done deal. However, given resourcing constraints at the courts, I wonder how much difference this will make in practice to the speeding up of cases.

Other ideas touched on by the review

The end of the Review touches on some other ideas that were clearly kicked around by contributors. The idea of the Secretary of State issuing a "minded to" decision before the final decision letter on an NSIP application is issued is certainly interesting. We can see merit in trying to flush out the more procedural grounds (such as inadequate reasons or failure to take into account a certain material consideration) before resorting to the court system. But most challenges involve some sort of substantive ground that could not easily be "fixed" or avoided in the ultimate decision letter. In such cases a "minded to" decision simply adds another delay to the ultimate decision and inevitable challenge, whilst incurring for promoters the additional cost of reviewing an interim decision and likely putting in submissions rebutting objectors' complaints about it.

Finally, I endorse the brief mention of "broad support" for the Planning Court making greater use of the ability to certify claims as "totally without merit" under CPR 23.12. Greater judicial confidence to apply this label earlier in the process would narrow the issues in any subsequent appeal, streamlining the process and reducing costs for all.

Conclusion

The Review is useful in confirming (implicitly rather than explicitly) that transformative change is not possible. The most potentially impactful proposal would be to shorten the permission stage to a single oral hearing in the High Court, but even this would not stop "arguable" cases being heard all the way up to the Supreme Court in principle. It might also lead judges to be more lenient in the cases they permit to be heard, mindful that a refusal would be the end of the road for a challenger.

Other ideas such as raising the permission threshold are fraught with difficulty and are unlikely to be implemented. Abolishing the High Court permission decision "on the papers" and implementing target timescales could lead to marginal improvements. Mandatory case management conferences have pros and cons, and automatic classification as significant planning claims is a good idea but unlikely to have a substantial effect. The underlying issues of judicial under-resourcing and an inability to tackle bigger drivers of claims such as the Aarhus cost caps mean that delays and unpredictability are likely to persist.

So let's be realistic and focus on other areas of the planning system we can reform to speed things up.

Further discussion

We welcome hearing views on these proposals. Please contact us if you are interested in discussing this further using the contact details below.