The tension between conflicting private and public interests on large-scale infrastructure projects remains ever present and a continuing challenge for Government. The Government has sought to facilitate a smoother path to consenting such projects, with the introduction of the Planning and Infrastructure Bill (the Bill). As the Bill nears its final stages, the focus of this article is on the changes to judicial review set out in the Bill and the Government’s recent amendments in the House of Lords.
Overview of Main Judicial Review Changes
- Reform of the permission stage for legal challenges to National Policy Statements (NSPs) and Development Consent Orders (DCOs) – in particular, the paper permission stage will be scrapped, so that all permission decisions in these cases will be determined at a High Court oral hearing.
- Removal of the right to appeal where the High Court deems such a case to be “totally without merit” at the oral hearing.
- New legislative provisions to automatically extend the life of planning permissions (including outline permissions and reserved matter approvals) and listed building consents in England in the event of legal challenge.
Background to the New Provisions
In April 2023, the National Infrastructure Commission published a review of the performance of the Nationally Significant Infrastructure Projects (NSIP) consenting regime. The review identified numerous challenges, including the need to streamline the judicial review process, following an increase in judicial reviews of Development Consent Orders.
In early 2024, the then Government appointed Lord Banner KC to lead an independent review into legal challenges against NSIPs (the Banner Review).
In response to the Banner Review’s recommendations and the Government’s subsequent call for evidence, the Bill makes provision for moderate changes to the judicial review process. These include the removal of the paper permission stage for judicial reviews of NSPs and DCOs, so that all of these cases will proceed to an oral hearing, and the removal of the right of appeal where a case is deemed “totally without merit”. Under the Bill, these changes will be achieved by changes to the Senior Courts Act 1981 and the Civil Procedure Rules.
The rationale behind these reforms is perhaps best explained by Lord Banner himself. Speaking on the first day of Committee stage in the Lords (17 July 2025), Lord Banner stated: the “…problem is not with the law…It is about the time it takes for bad JRs to meet their doom. That is the problem, and to my mind the remedy for it is to shorten the judicial review process as much as possible. That is what my recommendations focused on…” Explaining that an ouster clause would unlikely be justifiable or recommended, he stated: “does going further risk the constitutional crisis that it may very well facilitate…”? Because most DCOs involve the compulsory purchase of land and/or the acquisition of individual rights, “…there ought to be at least one day in court—otherwise, fundamental constitutional principles and the legitimacy of the process could be undermined.”
Further Amendments at the Lords Stages
Lord Banner’s influence on judicial review reforms in the Bill is not limited to his recommendations in the Banner Review, however.
Lord Banner tabled several amendments to the Bill at Report stage. These included a New Clause “Duration of planning permission” amendment which would alter the calculation of time before planning permission expires, which was subsequently withdrawn. The amendment sought to effectively ‘stop the clock’ for the purposes of the time limit for development to be commenced when the relevant planning permission is subject to judicial or statutory review. The rationale was to avoid the risk of a planning permission expiring because of protracted legal challenge – the usual expiry deadline for the planning permission implementation period in England is three years, unless the planning permission provides otherwise.
In response to Parliamentary debate, the Lords Minister for Housing and Local Government, Baroness Taylor of Stevenage, tabled an amendment at Report stage to extend in the event of legal challenge the time limit for implementing a planning permission or listed building consent in England.
Presently the Town and Country Planning Act 1990 (TCPA) and the Planning (Listed Buildings and Conservation Areas) Act 1990 provide for a single one-year extension when judicial review proceedings are begun to challenge a grant of planning permission or listed building consent in England. The new Lords Government amendment will insert new provisions that redefine the existing one-year extension and add an additional one year for relevant Court of Appeal proceedings or additional two years for relevant Supreme Court proceedings. Relevant proceedings for these purposes means proceedings that are to determine a challenge after a full hearing (and do not include a refusal of permission or leave). The new amendments provide direction on how the various time extensions should be calculated and run consecutively.
Additionally, a new section 92A will be inserted into the TCPA to extend these provisions to outline permissions and reserved matters approvals in England. This is particularly notable because these consents do not currently benefit from any time extension if legally challenged.
These new provisions are designed to apply to any planning permissions subject to legal proceedings, i.e. they are not infrastructure specific and so are intended to be of wider benefit. The Minister advocates that this will ensure “that the planning system remains fair and proportionate, supporting investment and the delivery of development while respecting the judicial process.”
Concluding Remarks
In the context of the Government’s growth agenda, the judicial review reforms in the Bill are generally welcomed, including the Government’s recent amendments in the Lords referred to above. The Bill completed its third reading in the House of Lords on Monday 10 November. It is possible that there could be new amendments/additional judicial review issues raised in the Commons when the Bill begins ping pong , in which case we will provide an update to this article.
In any event, it appears that the Government is already looking beyond the Bill and considering more extensive reforms.
Recent speculation abounds surrounding the development and future publication of a new planning Bill later in this Parliament, in addition to the substantive amendments made to the current Bill. Changes reportedly under consideration by the Government include further restrictions on who can bring a judicial review against an infrastructure project and how many times they could make an application. Some also dispute the UK remaining signatory to the Aarhus Convention, which the Government reportedly might have considered as an option to remove the cap on costs for groups bringing a judicial review.
None of these further proposals are wholly new and it is notable that the Banner Review itself concluded that there was no case for amending the rules in relation to either standing or cost caps in order to reduce the number of challenges to NSIPs. We shall see then what further reforms the Government brings forward in due course. However, finding the right balance between consenting the infrastructure that the country desperately needs and the ability of local communities or respected environmental groups to influence these changes remains vital. As advocated by the Law Society, major infrastructure projects must be able to progress smoothly to deliver public benefit while providing certainty to promoters and those affected by the project. The true test of the Government’s current and future reforms will be whether they can achieve this delicate balance.
