Reforms on the horizon for judicial review of NSIPs?

Lord Banner KC has published his independent review into legal challenges against Nationally Significant Infrastructure Projects ("NSIPs"), commissioned by the previous Conservative Government ("the Review"). He has made a series of recommendations aimed at reforming the process for judicial reviews of Development Consent Orders ("DCOs"). The Government has described the pressing need to tackle delays to NSIPs, and immediately launched a call for evidence seeking views on the recommendations. The tenor of the Government's response suggests that at least some of the reforms will be brought forward.

Background

NSIPs are, as the name suggests, a sub-set of development projects that are considered to be of the greatest national significance. They are subject to a bespoke planning regime under which the relevant Secretary of State grants authorisation to proceed by way of a DCO, that can be challenged by judicial review. In recent years there have been concerns that unmeritorious judicial reviews of DCOs were causing significant delay to NSIPs, prejudicing the public interest.

The Review aimed to explore causes of legal challenges brought against NSIPs and the scope and options for improving existing processes, taking into account the need to maintain access to justice in line with domestic and international legal obligations, whilst considering whether improving existing processes could reduce delay to vitally important infrastructure. The key question for the Review was: "Are NSIPs unduly held up by inappropriate legal challenges? If so, what are the main reasons for this and how can the problem be effectively resolved?".

Lord Banner engaged a wide range of stakeholders, including from this firm, as part of the Review. The Review considered data on the progress of these judicial reviews through the courts, although noted the limitations of the data where there have only been 34 such judicial reviews since the 2008 Planning Act regime came into force, only four of which have been successful against DCOs. It concluded that there was a case for reform to the process for judicial review of DCOs, highlighting the impact of legal challenges and explaining that the delay caused by litigation is not linear i.e. a year of litigation does not create a year of delay to a project, because of various other factors and constraints. The Review flags the obvious cost implications, as well as impact on the public interest by the benefits of NSIPs not being realised in the time envisioned. These factors are all said to support the need to reduce the time taken for the high proportion of unsuccessful claims to be concluded.

Recommendations

Lord Banner considered ten possible areas of reform. In some areas he did not recommend any change, such as the rules in relation to cost caps (by which environmental judicial reviews are subject to fixed costs rules to allow access to justice in accordance with the UK's obligations under the Aarhus Convention) and the rules in relation to standing (i.e. that only someone with a "sufficient interest" can bring a claim).

He was also not convinced of the need for separate specialist NSIP judges to hear DCO judicial reviews. This is in circumstances where there is already a separate Planning Court as part of the Administrative Court to which DCO challenges will be allocated, and therefore judges hearing significant challenges are already likely to have some experience and background in planning issues.  

In other areas his recommendations included:

• At present claimants have "three bites of the cherry" to try to obtain permission to apply for judicial review. They first apply to the High Court on the papers, then have the option of a short hearing in the High Court if permission is refused, and then can still appeal to the Court of Appeal if unsuccessful at that hearing. The Review considered this to be excessive and that it should be reduced to either two or one. Lord Banner KC did not consider there to be any constitutional or international law right to have multiple attempts at obtaining permission, and took the view that the national significance of NSIPs justified a different approach to other types of judicial review.
• There may be a case for raising the permission threshold for judicial review claims challenging DCOs, but this would require further consideration. Currently the test is summarised as "an arguable ground for judicial review which has a realistic prospect of success" by the Administrative Court Guide.
• DCO judicial reviews should automatically be deemed Significant Planning Court Claims. This would mean they become subject to target timescales at the High Court stage, which roughly aim for a substantive hearing within about six months of the claim being issued. The Review found that average timescales for case progression are not far off the targets, but there are significant deviations from the average. In practice however DCO judicial reviews would usually be treated as Significant Planning Court Claims in any event.
• There should be automatic pre-permission Case Management Conferences in judicial review claims challenging DCOs. This would force both the parties and the court to turn their minds at an early stage to the needs of the particular case e.g. should there be expedition, is a rolled-up hearing appropriate, are there other relevant procedural issues that may help to speed up the process.
• Target timescales should be introduced for appeals to the Court of Appeal from the Planning Court, applying to determination of applications for permission to appeal (4 weeks), and (where permission is granted) substantive appeals (4 months). These target timescales should at minimum apply to DCO judicial reviews. Generally speaking, the Court of Appeal was found to be taking longer, sometimes considerably longer, than the High Court stage.
• The Supreme Court should also consider target timescales for DCO judicial reviews. Again, the timescales for obtaining a decision on permission to appeal from the Supreme Court are considerably longer than the lower stages.

Next Steps

The Government has welcomed the Review and issued a call for evidence seeking broader views on the recommendations. Notably some of the questions in that call for evidence go wider e.g. seeking views on the implementation of certain recommendations in other types of judicial review, outside the limited DCO judicial reviews considered by the Review.

The Government has said it will focus on ensuring there is a balance between the critical need for projects and maintaining the public’s right to challenge government decisions in considering its response to the Review and the call for evidence.

Comment

Lord Banner KC has been clear about the need to protect the right to access to justice alongside the desire to speed up the litigation process, and the Review is a balanced set of recommendations.

We welcome his reluctance to get drawn into debates about what constitutes inappropriate legal challenges and motives for judicial reviews, focusing instead on the effects of delay. Relevantly, he found that 70% of challenges had been granted permission to proceed on at least some grounds, suggesting that even some cases that are ultimately unsuccessful raise arguments that warrant more detailed consideration by the court.

On the other hand, he was not afraid to voice his opinion that often challenges are taking aim at the merits of a decision, which is impermissible in judicial review, by "dressing them up" as legal challenges. This is reflected in the low number of challenges that are ultimately successful.

Some of the recommendations are clearly beneficial but may run into practical issues, such as the introduction of target timescales in the higher courts. The introduction of a Case Management Conference should bring the benefits described but will also necessarily add to the cost of proceedings for all parties, as well as being a further drain on court time and resources.

More substantive issues such as raising the threshold for permission or reducing the number of attempts at permission give rise to important access to justice issues and will require careful thought and the Government's call for evidence suggests that it is alive to this concern. As the Review itself points out, the recent landmark Finch Supreme Court decision was itself refused permission by the High Court so would never have made it further if there was only one chance to obtain permission. The Government's broader call for evidence, and clear focus on access to justice, is therefore vital to ensure an appropriate balance is ultimately struck in any reforms.