Prime minister Keir Starmer has set out proposed changes to the legal challenge (judicial review) process to ensure major infrastructure projects can be delivered more quickly as part of the government’s Plan for Change.
High court judges will be given the power to rule that judicial reviews on nationally significant infrastructure projects that they regard as “totally without merit” will be unable to go to appeal.
Data shows that historically 58% of all decisions on major UK infrastructure projects were taken to court and could be brought back to the courts three times due to the current appeal process.
The prime minister said: “For too long, blockers have had the upper hand in legal challenges – using our court processes to frustrate growth. We’re putting an end to this challenge culture by taking on the NIMBYs and a broken system that has slowed down our progress as a nation.
“This is the government’s Plan for Change in action – taking the brakes off Britain by reforming the planning system so it is pro-growth and pro-infrastructure. The current first attempt – known as the paper permission stage – will be scrapped. And primary legislation will be changed so that where a judge in an oral hearing at the High Court deems the case ‘totally without merit’, it will not be possible to ask the Court of Appeal to reconsider. To ensure ongoing access to justice, a request to appeal second attempt will be allowed for other cases.”
The government has also set out major reforms to end delays to the construction of new homes and infrastructure due to current environmental obligations.
The introduction of a new Nature Restoration Fund will enable infrastructure builders to meet their environmental obligations faster and at greater scale by pooling contributions from developers to fund larger strategic interventions for nature.
This approach will mean the burden of individual site-level assessments and delivering mitigation and compensation, is reduced. In many cases, a single payment will enable development to proceed.
The government said the “new common-sense approach doesn’t allow newts or bats to be more important than the homes hardworking people need, or the roads and hospital this country needs”.
The government’s new plans were welcomed by members of the built environment industry.
Melanie Leech CBE, chief executive of the British Property Federation, said: “We can build great infrastructure in the UK – eventually. From power stations to bypasses, we take longer to deliver important national projects than other developed nations, and that has to change.
“If we want to grow the economy and fund vital public services, then we have to better balance environmental and community interests with the benefits of development, and do so in a clear and timely way. Reducing the scope for vexatious and unmerited legal challenges, whilst retaining a right to appeal, is a very positive step in achieving this.”
A RICS spokesperson added: “Today’s announcement demonstrates that Britain, under the leadership of Labour, is open for business. The proposed package of reforms will help unblock the types of infrastructure that are essential in delivering millions of homes, addressing energy costs and security, and decarbonising the economy. By creating greater certainty over the planning process and possible judicial reviews, investors will be provided with the long-term confidence required to make significant inward investments.
“Clearly the current government is determined to address the extraordinary delays caused by cases which may have little merit. Access to the courts is part of the rules-based system. But this needs to be proportionate to the national significance of the infrastructure projects proposed. A clear threshold for such access needs to be defined and a way of expediting such cases when they arise would help safeguard individual rights and accelerate development where such judicial reviews are not upheld.
“Looking ahead, it’s important that economic growth does not come at the expense of the environment, which is why it’s encouraging to see policymakers propose a new Nature Restoration Fund. However, measures should be put in place to ensure this doesn’t get tangled in the straitjacket of red tape which affected the nutrient neutrality issue.”
Tom Barton, partner in the planning team at Mishcon de Reya, said: “Any reforms which will speed up the delivery of major projects are welcome. While the right to challenge is sacrosanct, it can certainly be argued that at present the law is tilted too far in favour of those wishing to stall development. It is fantastic to see Lord Banner using his knowledge and insight as a practising planning lawyer to inform and drive change through his position in the Lords.
“As a country we desperately need to take action to deliver major projects to drive growth – these reforms would be a step towards doing so.”
Jason Lowes, planning partner at Rapleys, added: “It’s a strong message about bringing more certainty to the development process, and we are all for that. However, the question about announcements like this is how much difference will it really make.
“Few people would object to making it harder to hold up national infrastructure up through ‘frivolous’ legal action, but details are very thin on the ground as to how the current system, which already has safeguards in place (simply making a claim does not automatically result in a hearing), will be changed. It seems to be part of a wider pattern of somewhat vague pro-development rhetoric from the government.
“Whether it actually results in changing the picture on the ground, or if it is simply to create the illusion of movement as the government’s planning reforms progress slower than promised at the election, remains to be seen – we hope it is the former.”
Alison Ogley, partner at Freeths, said: “This is a potential game changer addressing the current inertia in the system, providing a solution that is more effective than individual developers trying to address environmental improvements on a project by project basis.
“A central fund will be better placed to tackle environmental improvements on a strategic level. The devil as ever will be in the detail. One of the major issues will be the efficient and effective operation of the central fund – it will need to be properly resourced and accountable to both developers who pay into it and other stakeholders.”
