Congratulations to those in our planning world who have been recommended to be appointed as King’s Counsel in the latest round – Zack Simons (presumably now #silkyplanoraks), Sasha Blackmore and Harriet Townsend.
It occurs to me that belated congratulations are also due to Sarah Sackman KC MP, who many of us know primarily as a superb planning and public law advocate, first at Francis Taylor Building and then Matrix Chambers, but who of course became MP for Finchley and Golders Green in July 2024. She took silk on being appointed as Solicitor General on entering the House of Commons and since 2 December 2024 has been Minister of State in the Ministry of Justice.
I mention Sarah’s background because it is important: we have one of our own, who understands the practical nuances of planning and public law and the operations of the judicial review process, at the heart of government.
There has been much press attention this week on the Prime Minister’s announcement on 23 January 2024, Prime Minister clears path to get Britain building as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects, following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs.
However, the proposals themselves were announced in more detail in a written statement to the House of Commons that day by Sarah Sackman: Infrastructure Planning and Judicial Review Reform. Working through that statement, first of all the background is set out:
“The delivery of major infrastructure projects is central to the Government’s mission to drive growth and unlock clean power. The largest and most complex of these projects currently require a Development Consent Order (DCO) under the Nationally Significant Infrastructure Projects (NSIPs) regime established by the Planning Act 2008.
The number of legal challenges against DCOs has spiked in recent years, with 58% of decisions being subject to legal challenge. Delays to these major projects have serious implications, including holding back the delivery of essential benefits to the country and imposing considerable additional costs on development.
Despite 30 challenges being brought against major infrastructure projects, only four decisions to approve a project have been overturned by the courts. It comes as research shows that, on average, each legal challenge takes 1.4 years to reach a conclusion and the courts have spent over 10,000 working days handling these cases. Such cases impact upon the use of public money, with major road projects paying up to £121 million per scheme due to delays in legal proceedings. Whilst it is fundamental that the public can challenge the lawfulness of government decisions, there is scope for rebalancing the judicial review process to improve efficiency and reduce delays to NSIPs.”
Few of us would disagree with this.
The statement then sets out the specific changes that are to be introduced in relation to claims for judicial review in relation to DCOs:
- Once the claim is made, there will not be an initial High Court stage where a judge considers “on the papers” whether the case is arguable, instead the issue of arguability and as to whether the case should proceed to a full hearing will be considered by a judge at a short hearing. (This is already the case in relation to applications to challenge inspectors’ decision letters in relation to enforcement notice appeals under section 289 of the Town and Country Planning Act 1990, where indeed there is no subsequent right to apply to the Court of Appeal for permission to proceed if the High Court judge finds the challenge to be unarguable,. Indeed, the deadline for bringing such challenges is four rather than six weeks!).
This change follows Lord Banner’s recommendation. The government’s consultation paper had floated the possibility of extending the change to all judicial reviews but this week’s announcement is entirely limited to DCO judicial reviews.
- If the judge at that short permission hearing deems the case to be “totally without merit” (i.e. bound to fail), it will not be possible to ask the Court of Appeal to reconsider. At present if the judge considers “on the papers“ that a case is totally without merit, the claimant cannot renew its application for permission before a judge at a short hearing, but can only appeal to a Court of Appeal judge who will determine the appeal on the papers. So, there will be one bite at the cherry – at a short hearing before a High Court judge – rather than two paper stages with no hearing. Given that “totally without merit” grounds are not difficult to identify, is this really very radical?
- “non-mandatory” case management conferences will be introduced – sensible and reflecting one of Lord Banner’s recommendations.
- All DCO judicial reviews will be designated as significant planning law claims. This is important because specific timescale targets then apply at the High Court stage (not the Court of Appeal) as to how speedily they should be dealt with. However, the issue is somewhat academic given that according to Lord Banner’s report all DCO judicial reviews to date have in practice been treated as significant planning law claims!
- The government will “work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court”. Given the delays that do happen at these later stage this would be very welcome.
Unsurprisingly the announcement has generated flak on the one hand from those who see the changes as reducing access to justice (see e.g. the Law Society’s position, Society counsels caution over JR curbs (25 January 2025), with comments from Law Society president Richard Atkinson that “Removing the paper permission stage could increase both the cost and length of permission hearings”. “‘It is possible that the certainty of higher costs – especially so early in the case, before permission is even granted – could discourage a claimant to the extent that it raises concerns for access to justice”. “Requiring oral hearings for all permission applications may also lengthen these proceedings, as it prevents those that could be easily dealt with from progressing more quickly.”) and on the other hand from those primarily acting for promoters who see the measures as not going far enough (see e.g. Judicial review reform ‘one step’ to enabling UK infrastructure development (24 January 2025) where infrastructure planning law guru Robbie Owen is quoted as saying that “these changes to judicial review are a step in the right direction but they are relatively minor and do not move the dial nearly enough. The government should be providing for any nationally significant infrastructure project that is a critical national priority to be immune from judicial review altogether, by the DCO for the project being confirmed by parliament through a one clause bill after it has been through the DCO process successfully”)
I don’t agree with either extreme. Mr Atkinson is wrong in what he says: any judicial review claimant at the moment needs to factor in the likely need for a permission hearing in any event (of the 27 challenges determined at the time of the Banner report, only 7 had received permission on the papers – and only 2 did not renew after being refused on the papers. 8 proceeded to a full or rolled-up hearing in any event). Robbie’s approach in my view goes too far the other way and takes away the necessary backstop that is needed by way of judicial review.
However, I do think there is more that could be done by way of changes in due course, in some cases not limited to DCO judicial reviews:
- Why not reduce the challenge deadline for DCO judicial reviews from six weeks to four weeks, but at the same time take the opportunity to rectify the issue frequently arising on statutory challenges of all kinds as regards the current need to serve on the parties within that period, by allowing claimants seven days to serve on the defendant and interested parties, after the claim has been filed? By the time the DCO decision has been issued, any claimant will have been engaged for a long time in the process and will have secured access to legal advice. All that remains to be scrutinised is the Secretary of State’s reasoning for the decision – follow the precedent set in the case of enforcement notice appeals.
- In the case of non DCO judicial reviews within the remit of the Planning Court, tighten up the requirement for pre-action protocol letters, such that the guidance makes clear that they should be sent as soon as grounds for potential judicial review are considered by a potential claimant to arise, for instance when a local planning authority has resolved to grant planning permission but ahead of the permission being issued. Presently, most potential claimants store up their potential grounds of challenge until the permission has been issued and there is nothing in practice that the local planning authority can do to remedy the position even if it accepts the position set out in the PAP letter. There could be the warning that non-compliance with this guidance may be taken into account in decisions as to the award of costs and as to cost-capping.
- Much litigation in this field nowadays is crowdfunded. The Government might give thought as to whether greater controls are required as to the use of crowdfunding in relation to litigation and particularly whether sufficient information is given to potential contributors as to the precise nature of the action contemplated, its prospects of success and the implications of a successful outcome (i.e. usually simply resulting in redetermination) and how funds are used if no action is lodged.
- More information should be made available by the courts, particularly the orders made at permission stage so as to inform decisions taken by subsequent claimants and as to the High Court’s and Court of Appeal’s performance as against timescale targets.
Lastly, what possible basis is there for not extending the changes announced to cover legal challenges to the adoption of local plans and in due course spatial development strategies?
There is always a need for judicial overview of decision making. But there is also always a need for speed – justice delayed is justice denied. Bridget Rosewell’s review was an important catalyst for improvement in relation to the Planning Inspectorate’s administration of planning appeal inquiries, at no cost to the quality or fairness of the process itself. The DCO judicial review changes announced this week to my mind are in a similar vein, although I do agree with Robbie that they are relatively minor. Let’s not give up looking for those incremental gains.
Simon Ricketts, 25 January 2025
Personal views, et cetera
SIMONICITY 