Independent report

Independent review into legal challenges against Nationally Significant Infrastructure Projects

Published 28 October 2024

Applies to England, Scotland and Wales

Review of legal challenges to Nationally Significant Infrastructure Projects

Lord Banner KC
Assisted by Nick Grant

Introduction and list of recommendations

1. I was appointed by the Prime Minister on 12 February 2024 to undertake this review of legal challenges to development consent orders (“DCOs”) granted for nationally significant infrastructure projects (“NSIPs”) under the Planning Act 2008 (“2008 Act”).

2. By their nature, NSIPs are generally speaking the most important development projects, for both the national economy and the public interest, that progress through the planning system. Hence the bespoke consenting regime for them under the 2008 Act.

3. The prompt for this review was a concern in government and amongst some stakeholders that unmeritorious legal challenges to DCOs were causing significant undue delay to the delivery of NSIPs, with consequent detriment to the public interest.

4. The report examines that concern, informed by data as well as extensive engagement with stakeholders in the NSIP regime from a wide range of perspectives. I conclude that it is in significant respects well-founded, in the terms that I set out fully in the main body of the report.

5. I have therefore sought to examine ways of streamlining the process for judicial review of DCOs so as to minimise delays caused by unsuccessful legal challenges, whilst at the same time respecting constitutional principles and UK’s international obligations including under the Aarhus Convention^{[footnote 1]}.

6. I set out my recommendations below and explain the reasoning for them in the body of my report. If they are implemented, then I am confident that they would deliver meaningful acceleration in the handling of legal challenges to DCO decisions. Perhaps just as importantly as making the timescales quicker, my recommendations would also make them more predictable. These enhancements would increase stakeholder confidence in the NSIP regime (including from investors) as well as reducing costs and other risks caused by delays to delivery of NSIPs caused by unsuccessful legal challenges.

7. I am grateful to all stakeholders with whom I engaged as part of my information-gathering, as well as the Department for Levelling Up, Housing and Communities (“DLUHC”) Secretariat and other civil servants who provided support for the review. Without exception, they have all been extremely helpful. I owe a particular gratitude to Nick Grant of Landmark Chambers, who has supported me in this review and whose input has been integral and invaluable throughout.

Charles Banner KC
Keating Chambers
24 May 2024

Recommendation 1

For so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIPs.

Recommendation 2

There is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs.

Recommendation 3

The current three bites of the cherry to obtain permission to apply for judicial review is excessive and should be reduced to either two or one. As to this:

1) Subject to the introduction of a Practice Direction to CPR Part 52 setting target timescales in the Court of Appeal for appeals and applications for permission to appeal from the High Court in cases concerning NSIPs (see Recommendation 7 below), there should be two opportunities to obtain permission: one in the High Court and one in the Court of Appeal.

2) The Civil Procedure Rules Committee (“CPRC”) should be invited to introduce amendments to the CPR to provide that, in judicial review cases challenging a DCO, the question of whether permission should be granted shall proceed in the High Court straight to a hearing with no prior written stage. The target timescale for the oral hearing in the High Court should be within 4 weeks of the deadline for the Defendant and any Interested Parties to file their Acknowledgment of Service. The target timescale for the Court of Appeal’s determination of an application for permission to appeal against the refusal of permission to apply for judicial review should also be 4 weeks.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to reduce the number of permission stages to one (probably but not inevitably using the s.289 model)^{[footnote 2]}.

Recommendation 4

1) There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.

2) This requires further consideration in the light of whether the other recommendations in this report are taken forward.

3) The necessary further consideration could be undertaken in the context of a consultation on any proposed changes to the CPR that are made in the light of this report.

Recommendation 5

1) There are respectable arguments either way on the question of whether or not there should be a specialist ‘NSIP ticket’ within the Planning Court, pursuant to which around 4-6 judges with in-depth NSIP experience would be eligible to hear judicial review challenges to DCO decisions.

2) On balance, I conclude that the case in favour of an ‘NSIP ticket’ is not yet made out.

3) If an ‘NSIP ticket’ is introduced, this could be done either by changes to the CPR or by judicial practice. Legislation would not be required.

Recommendation 6

The CPRC should be invited to amend CPR PD 54D paragraph 3.2 to add a new subparagraph providing that DCO judicial reviews are automatically deemed Significant Planning Court Claims.

Recommendation 7

1) The CPRC should be invited to amend CPR Part 54 and/or PD 54 to introduce automatic pre-permission Case Management Conferences in judicial review claims challenging DCOs.

2) The pre-permission CMC should take place in the 2nd or 3rd week after the deadline for the Acknowledgement of Service of the Defendant(s) and any Interested Parties.

3) There should be appropriate flexibility as to the time of day and format (in person or virtual) of the pre-permission CMC so as to ensure if at all possible that at least one of the counsel retained by each party is able to participate.

4) The parties should be required to submit a joint position statement to the Court no later than 2 days prior to the pre-permission CMC, covering the topics listed at paragraph 104 of this report which shall form the agenda for the CMC.

5) If at a subsequent permission hearing, permission to proceed with the claim is granted, there should be an updated case management discussion at the end of the permission hearing, covering the topics listed at paragraph 105 of this report which shall form the agenda for that discussion.

6) Where permission is granted by the Court of Appeal:

a. If the Court of Appeal grants permission at a permission hearing and the matter is kept in the Court of Appeal, the updated case management discussion should take place at the end of that hearing;

b. If the Court of Appeal grants permission on the papers and keeps the matter in the Court of Appeal, there should be an updated case management discussion within 2 weeks covering the topics listed at paragraph 105 of this report;

c. If the Court of Appeal grants permission and returns the matter to the High Court, there should be a 2nd CMC within 2 weeks to cover the topics listed at paragraph 105 of this report which shall form the agenda for that 2nd CMC.

Recommendation 8

1) The CPRC should be invited to amend the CPR to introduce a new Practice Direction accompanying CPR Part 52, dealing with appeals to the Court of Appeal from the Planning Court, which sets target timescales for the determination of applications for permission to appeal, and (where permission is granted) thereafter substantive appeals. These target timescales should at minimum apply to DCO judicial reviews.

2) The target timescales in the Court of Appeal should be^{[footnote 3]}:

a. For permission to appeal and appeals against the refusal of permission to apply for judicial review: determination 4 weeks from the application for permission to appeal.

b. For the hearing of substantive appeals: 4 months from the application for permission to appeal.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to recharacterise challenges to DCOs as an “appeal” which, as well as reducing the number of permission bites of the cherry to one (see Recommendation 3(3) above), would also make onward appeals to the Court of Appeal subject to the heightened test for second appeals.

Recommendation 9

The President of the Supreme Court should be invited to consider amending the Supreme Court Rules to introduce target timescales for the determination of applications to the Supreme Court for permission to appeal in judicial review challenges to DCOs.

Recommendation 10

The Planning Court and Court of Appeal should be invited to publish data on a 3 month rolling basis which, at minimum, should indicate the number and percentage of cases which in the last 3 month period have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average and maximum turnaround times have been in that period (for both the permission and the substantive stages).

Part 1: Preliminary matters

Scope of this review

1. My Terms of Reference (“TOR”) were published online^{[footnote 4]} and are included in Appendix 1. They concern legal challenges to Development Consent Orders (“DCOs”) granted under the Planning Act 2008 Act (“2008 Act”) for nationally significant infrastructure projects or projects of national significance to be put through the DCO process under s.35 2008 Act (even though there is a legal difference for the purposes of this report I refer to both as “NSIPs”). Contrary to some news reports, my brief is not to consider wider issues relating to the delivery of NSIPs. The questions I asked to address are:

“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?”

2. The purpose of my review is:

“to explore causes of legal challenges brought against the NSIP regime and the scope and options for improving existing processes. We want to ensure the government is maintaining access to justice in line with our domestic and international legal obligations, whilst considering whether improving existing processes could reduce delay to vitally important infrastructure.

The Review will consider how to define the term ‘inappropriate’ legal challenges as made in the Getting Britain Building paper and establish whether challenges which can be deemed to fit this definition are having a particular impact.”

3. Challenges to the grant or refusal of a DCO are undertaken by way of a claim for judicial review, subject to the provisions of s.118 of the 2008 Act which are principally directed at time limits for the commencement of proceedings. I describe the main steps in the current judicial review at paragraphs 12-24 below.

Methodology

4. I have not been asked to undertake public consultation and given the timescale of my review, that would not have been possible in any event. If the government decides to take up my recommendations, I anticipate that consultation would likely follow.

5. My information-gathering has benefited considerably from extensive engagement with representative stakeholders in the NSIP regime. This has principally taken place by means of interviews with Nick Grant and/or myself^{[footnote 5]}, although some stakeholders have contributed their thoughts in writing either in addition to or instead of an interview.

6. The stakeholders with whom I engaged include members of the judiciary, scheme promoters, government departments, environmental charities and NGOs, the leaderships of representative groups such as the National Infrastructure Projects Association (“NIPA”) and Planning and Environment Bar Association (“PEBA”), and law firms and counsel who act both for and against NSIPs. A full list is set out in Appendix 2. These discussions were held confidentially and on the basis that, whilst the contributors would be listed, I would not generally attribute comments to any particular person. I thank all those who contributed for their very considerable assistance.

7. I have also collected data on the progress of NSIP challenges through the Courts. I have been provided by Department for Levelling Up, Housing and Communities (“DLUHC”) with a list of current or completed challenges to NSIPs, and cross referenced that against similar lists provided by three stakeholders: Angus Walker of BDB Pitmans LLP, Wildlife & Countryside Link, and Robbie Owens (NIPA). A list of the cases I have reviewed is at Appendix 3. For those cases, I have been provided with copies of various documents (such as court orders and pleadings) which have helped track their progress through the legal system. My findings are set out below. I have sought to set out the progress of claims in a broadly accurate range based on the data that I have, but I highlight the following three important caveats.

8. First, I am not a statistician and have not carried out an expert statistical analysis. This is particularly important to note given the sample of judicial reviews of DCO decisions is very small – 34 in total over the entire period the 2008 Act has been in operation – compared to the much higher volume of cases handled by the Courts. Annual overall statistics are published online from which wider trends in court use and time taken may be discerned^{[footnote 6]}.

9. Secondly, there are some gaps in the data, and I have not had sight all of the various Court orders in every case. I have therefore had to make some reasonable assumptions.

10. Thirdly, this is necessarily a moving picture. A number of DCO challenges were submitted, for example, over the course of this review.

11. These caveats do not affect my overall conclusions, which do not turn on a precise statistical analysis but upon the general picture which the information that I have been provided with more than amply demonstrates.

The current judicial review process: main steps

12. Claims for judicial review require the permission of the Court to proceed to a full hearing (typically referred to in the legal industry as a ‘substantive hearing’).

13. The threshold for permission is summarised in the following terms by the Administrative Court Guide:

“The judge will refuse permission to apply for judicial review unless satisfied that there is an arguable ground for judicial review which has a realistic prospect of success”.^{[footnote 7]}

14. This test is the product of case-law; it is not enshrined in statute or the CPR.

15. There were suggestions of a higher threshold in Mass Energy Ltd. v. Birmingham City Council [1994] Env. L.R. 298, in which the Court of Appeal considered an application for permission (or ‘leave’, as it was then termed) to apply for judicial review in the context of a challenge to the award of a contract for the disposal of waste to a company called Onyx. At p.307. Glidewell LJ, with whom Scott and Evans LJJ agreed, held (emphasis added):

“The second matter about which I think it right to express some views, is the proper approach of this Court to this application. When a judge sitting in the Crown Office List or which this Court on a renewed application is dealing with an ex parte application for leave to move for judicial review, if the judge or the court takes the view that the applicant has an arguable case, leave will normally be granted. But what is the position here?

First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us. Secondly, Mr Ouseley for the council urges us that we should take into account, in deciding whether or not to give leave, the fact that the time-scale for the provision of the incinerator plant and thus for the achievement of the council’s plan of incinerating most of the waste which arises in its area starting in 1996, depends upon the following of a contractual and construction process for which there is a very tight schedule.

If leave be granted, the full hearing and a possible appeal by either party following a full hearing or certainly possible appeal by Mass Energy if they were unsuccessful at the full hearing, would not only cause extra expense, but, most importantly says Mr Ouseley, would take a great deal of time which might well set back the date at which, in the end, the incinerator could be provided. That would be a very considerable public disadvantage.

Mr Ouseley urged that factor as being a matter which should enter into the discretion which we have to exercise in deciding whether or not to give leave. I put it in a slightly different way: I regard it as being an entirely proper factor to take into account in deciding what approach we should take to the question which we have to answer, or to put it more precisely: what is the question we have to answer?

Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail – indeed in really quite minute detail in some instances – in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.

For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be – and the approach I intend to adopt will be that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong; that is to say, is likely to succeed. So the question I have posed to myself is: is Mass Energy’s case likely to succeed if we grant leave?”

16. This heightened threshold applied in Mass Energy has not been widely taken up. Subsequent case-law has sought to characterise the Court of Appeal’s reasoning as being principally based upon the fact that the permission hearing had involved a considerably more detailed analysis of the case than is usual at the permission stage. The few cases where the Courts have applied the Mass Energy test or an alternatively formulated heighted threshold for permission have been those where the Court considered itself to be in as good a position to consider the merits as it would be following a substantive hearing^{[footnote 8]}. Otherwise, the default test remains whether the claim is arguable with a realistic prospect of success.

17. Claimants for judicial review currently have three opportunities to obtain permission: first, in writing before the High Court; secondly, if permission is refused on the papers, at an oral permission hearing (“OPH”) in the High Court; thirdly, if permission is refused at that oral hearing, the Claimant may seek permission from the Court of Appeal.

18. If permission is refused and the Court considers the application to be “totally without merit” (“TWM”) it is required by CPR r. 23.12 to certify that fact on the face of the order. Where this is done, a claimant cannot request the application be reconsidered at a hearing: CPR r. 54.12(7). An application is TWM if it is “bound to fail”^{[footnote 9]}. The difference between this and the general arguability threshold for permission was set out by the Court of Appeal in R (Wasif) v. SSHD [2016] 1 W.L.R. 2793 per Underhill LJ at [15]: where a claim identifies no rational basis on which the claim can succeed, it is “bound to fail” and thus should be certified as TWM; by contrast, where there is a rational argument in support of the claim but even taking it at its highest the judge is confident it is wrong, the claim is unarguable but not TWM.

19. Sometimes, the Court will order a ‘rolled-up hearing’, meaning that the question of whether permission should be granted and the final determination of the claim are considered together at a single hearing and dealt with in a single judgment after that hearing. This has been ordered in 8 out of 34 DCO cases. There is, however, no way of accurately predicting in advance whether any particular claim will proceed by way of a rolled-up hearing, or how quickly the Court will determine a request by one or more of the parties to proceed that way (by way of example, there is recent evidence of a request for a rolled-up hearing in a planning judicial review which was made by a party at the first (paper) stage of the permission process still being undetermined some months after it was made, with no permission decision on the papers yet either).

20. If permission is granted, or a rolled-up hearing ordered, a Defendant or Interested Party is normally required to file Detailed Grounds of Resistance (“DGR”) alongside any evidence^{[footnote 10]}. Usually the deadline for filing these documents is 35 days after the date of the Order granting permission, but it can vary on a case by case basis.

21. There is no established constitutional right to multiple bites of the cherry at the permission stage. For example, challenges under s.289 of Town and Country Planning Act 1990 (“TCPA 1990”) to planning enforcement appeal decisions of the Secretary of State or his Inspectors under s.174 TCPA 1990 are characterised as an “appeal”, even though they are substantially the same in nature as a statutory review of other planning decisions under s.288 TCPA 1990. The effect of that statutory characterisation is that the Access to Justice Act 1999 (“AJA 1999”) s.54(4) applies. This states:

“No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

22. As a consequence of this provision, and in the absence of any rules of Court providing to the contrary, a refusal of permission to appeal a Secretary of State or Inspector’s decision under s.289 TCPA 1990 is final^{[footnote 11]}. There has been no suggestion by the Courts in the subsequent 25 years that confining such challenges to a single bite of the cherry at the permission stage is unconstitutional or incompatible with international obligations, notwithstanding that planning enforcement decisions can ultimately have criminal consequences.

23. The legislative characterisation of a challenge under s.289 TCPA 1990 as an “appeal”, as opposed to a judicial or statutory review, also brings into play s.55 AJA 1999. This provides that following a substantive decision by the High Court in an appeal to it in a non-criminal matter,

“no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(a) the appeal would raise an important point of principle or practice,^{[footnote 12]} or

(b) there is some other compelling reason for the Court of Appeal to hear it.”

24. The ‘second appeals test’, as it is known, is a higher threshold for permission to appeal to the Court of Appeal than the standard test applicable to first appeals, which under CPR r. 52.6 is that:

“…permission to appeal may be given only where—

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason for the appeal to be heard.”

The term “Inappropriate legal challenges”

25. In agreement with almost all the stakeholders with whom I engaged, I have concluded that it would be unhelpful to define what is an ‘inappropriate’ legal challenge or frame my recommendations by exclusive reference to this concept.

26. Claims for judicial review already fall into one of four categories depending on how they are dealt with by the Court: (1) TWM;^{[footnote 13]} (2) unarguable but not TWM;^{[footnote 14]} (3) arguable but wrong;^{[footnote 15]} and (4) well-founded^{[footnote 16]}. Neither I nor any of the stakeholders with whom I spoke could see any space for a fifth category.

27. Where a judicial review claim is well-founded, and thus succeeds, this indicates that the challenged decision has been reached contrary to law. To the extent that such claims are considered problematic for the delivery of NSIPs, that is a consequence of the legal requirements applicable to NSIPs, and not with the process of judicial review. This is outside my remit.

28. Where a judicial review claim fails, because it falls into one of the first three categories mentioned in paragraph 26 above, then the delaying effect on the NSIP in question is the same irrespective of whether it is totally without merit, ‘merely’ unarguable, or arguable but wrong – and irrespective of the Claimant’s motivation for bringing the claim. What matters is how quickly the claim is determined.

29. It is therefore more productive to focus upon what the effect of delays caused by all kinds of unsuccessful claim (whatever their motive) is, and whether in light of this there is a case for streamlining the judicial review process, so unsuccessful claims can be concluded more quickly.

30. Part 2 of this report examines what the impacts of unsuccessful legal challenges are and whether there is a case for intervention in the system (whether by government, judiciary, or others). Part 3 considers what form any such intervention should take.

Causes of legal challenges

31. In light of my conclusions in paragraphs 25-30 above, it is not strictly necessary for me to delve into the underlying reasons why legal challenges to DCOs have been brought. Nonetheless, in case it assists, I draw attention to the following points:

1) Frequent feedback was received from claimants, and those who represent them, that they feel disenfranchised by the DCO examination process under the 2008 Act. In particular, it was said that the heavy reliance on voluminous amounts of written material^{[footnote 17]} means that the process is felt by many members of the public to be inaccessible^{[footnote 18]}. I do not comment upon the merits of this assertion, but it was a recurring theme that came up during my engagement sessions.

2) A related recurring theme was widespread frustration among the public and local communities in relation to what was said to be the relatively common phenomenon of important evidence being introduced late during the examination, or indeed afterwards (prior to the Secretary of State’s decision). Again, I have not examined the merits of this complaint.

3) There was frustration on all sides of the spectrum with the fact that National Policy Statements (“NPS”) are not regularly reviewed and updated, such that until updates earlier this year many DCOs were being consented by reference to NPS which pre-dated major milestones such as the Paris Agreement, which was adopted in 2015. The feedback I received from those on the Claimant side was that this was a point of particular concern in relation to climate change impacts, which was said to have motivated some of their cases.

4) There was perceived to be genuine ambiguity in the wording of some of the NPS’s. In circumstances where NPS’s play a central role in the determination of DCO applications, and in light of the principle that the interpretation of policy is a matter for the Court,^{[footnote 19]} this appears to have been a significant prompt for legal challenge.

5) There was a widespread feeling among promoters that some Claimants may be trying to ‘kill’ schemes by increasing costs. This was denied by those acting for the Claimants.

6) Finally, there was a widespread feeling that Claimants are seeking to re-argue the merits of DCOs in the Courts, notwithstanding the frequent exhortations from the bench to the contrary^{[footnote 20]}. Having reviewed the various grounds of claim in many of the DCO cases, I tend to agree that often challenges to the planning decisions and merits have been dressed up as rationality challenges.

Part 2: Is there a case for intervention?

The available statistics on challenges to made DCOs

32. At the time of writing I have been made aware of 34 s. 118 challenges^{[footnote 21]} since the 2008 Act came into effect. Of these 34, 30 have been brought seeking to impugn the Secretary of State’s grant^{[footnote 22]} of a DCO. Of these 30, four^{[footnote 23]} have succeeded. Two by consent,^{[footnote 24]} two following High Court judgment.

33. Of the 30 challenges to the grant of a DCO, three are still awaiting their permission decision^{[footnote 25]}. Of the remaining 27:

1) At the paper stage:

a. 7 had permission granted;^{[footnote 26]}
b. 11 had permission refused;^{[footnote 27]}
c. 2 proceeded directly to an OPH without a paper determination;^{[footnote 28]}
d. 6 proceeded to a rolled-up hearing;^{[footnote 29]} and
e. 1 was conceded before a permission decision.^{[footnote 30]}

2) Of the 11 which had permission refused on the papers:

a. 3 were refused permission again at an OPH;^{[footnote 31]}
b. 1 was ordered to proceed to a rolled-up hearing;^{[footnote 32]}
c. 4 had some grounds granted permission at OPH;^{[footnote 33]}
d. 1 OPH decision is pending at the time of writing;^{[footnote 34]}
e. 2 did not renew.^{[footnote 35]}

3) Of the two which proceeded directly to an OPH without a paper determination: one was refused permission,^{[footnote 36]} and one was granted permission on some grounds linked to other claims^{[footnote 37]}.

4) Of the 7 which proceeded to a rolled-up hearing^{[footnote 38]},

a. 2 had permission granted on some grounds;^{[footnote 39]} and
b. 5 were refused permission on all grounds.^{[footnote 40]}

5) At least 9 cases which were refused permission in the High Court (whether at a rolled-up hearing or otherwise) sought permission to commence a judicial review from the Court of Appeal. Of these:

a. The Court of Appeal granted permission and returned the matter to the High Court for a substantive hearing once;^{[footnote 41]}
b. The Court of Appeal granted permission on at least some grounds but kept the matter in the Court of Appeal 4 times;^{[footnote 42]} and
c. The Court of Appeal refused permission entirely 4 times.^{[footnote 43]}

34. Therefore, overall, of the 27 claims so far which have had some form of permission decision (bearing in mind this is a moving picture), 19 (c. 70%) were ultimately granted permission to proceed on at least some grounds, and 8 (c. 30 %) did not obtain permission to proceed at all.

Case progression through the Courts

35. For the purposes of this section I have examined the NSIP cases that have progressed through the High Court and (where applicable) thereafter through the Court of Appeal and/or Supreme Court since the 2008 Act came into force in 2010. Where a case settled at a particular stage, I have taken it out of account at that stage^{[footnote 44]}. Although the focus of my review is unsuccessful challenges to NSIPs, given the relatively small sample size I have also included those cases that involved successful challenges to decisions not to approve NSIPs (which involve the same decision-making power and the same judicial review process).

36. I repeat the caveat I set out at paragraph 8 above regarding the fact this is a very small sample size. Wider trends in the Courts may be found from their published data.

(i) Case progression in the High Court

37. In analysing the data I have made the following assumptions:

1) I have taken the date of claim to be (i) the date of sealed claim form (where available), if not then (ii) the date of pleadings (where available) and if neither (i) nor (ii) is possible, then (iii) the date 6 weeks from the date of the DCO decision;

2) In calculating progress through the High Court I have excluded the progress of claims before the Planning Court came into existence (06 April 2014);^{[footnote 45]}

3) I have taken the end date as the date of the Court judgment, rather than the date of any order following it;

4) I have not included judgments delivered at an OPH in the “substantive judgments” section, which I have taken to either be (a) a judgment following a grant of permission or (b) a rolled-up hearing;

5) I have not been able to calculate or compensate for the Court term dates. So it may well be that some of these figures were affected by Court holidays; and

6) I look, later, at the extent to which the High Court has been meeting its target timescales set out in PD 54D para 3.4 in NSIP cases. I have not had access to each of the case management orders in each case and I am aware there are several cases where the court has granted permission and asked the parties to prepare further directions. I have taken the later of the date of the DGR or 35 days from the Order granting permission as the date of the expiry of the period for submitting DGRs.

38. My findings are as follows (all times are in weeks, all times other than that specifically outlined as “date from detailed grounds” are measured by reference to when the Claim was filed):

Table 1

Stage	Mean	Median	Fastest	Slowest
Paper determination	9	8	5	19
Oral Renewal hearing	19	20	12[footnote 46]	33
Substantive hearing (excl. rolled-up)	33	30	23	54[footnote 47]
Substantive hearing (rolled-up)	26	25	16	41
Substantive judgment (excl. rolled-up)	39	40	27	61[footnote 48]
Substantive judgment (rolled-up hearing)	35	31	26	47

39. I am conscious that these are relatively few samples over quite a long time. I have therefore also examined the same parameters only taking the cases from 2020 onwards:

Table 2

Stage	Mean	Median	Fastest	Slowest
Paper determination	9	8	5	16
Oral Renewal hearing	18	20	12[footnote 49]	26
Substantive hearing (excl. rolled-up)	34	41	23	54[footnote 50]
Substantive hearing (rolled-up)	28	27	16	41
Substantive judgment (excl. rolled-up)	40[footnote 51]	40[footnote 52]	27	61[footnote 53]
Substantive judgment (rolled-up hearing)	36	36	26	47

40. One of the targets contained in PD 54D para 3.4 is how quickly the substantive hearing comes on after the deadline by which the defendant or any party has to file DGRs. I have therefore looked at that, too. In the below, a negative number indicates the number of weeks by which a deadline is missed (so, -1 means the deadline is being missed by up to 1 week), and a positive number indicates how far before the deadline a hearing has been scheduled.

Table 3

Stage	Mean	Median	Fastest	Slowest
Substantive hearing from DGR deadline	-1	0	38	-35
Substantive hearing from DGR deadline (cases from 2020 onwards only)	-1	0	34	-35

41. I have assessed this progress against the target timescales set out in PD 54D paragraph 3.4. That provides:

“(a) applications for permission to apply for judicial review or planning statutory review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;

(b) oral renewals of applications for permission to apply for judicial review or planning statutory review are to be heard within one month of receipt of request for renewal;

(c) applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;

(d) planning statutory reviews are to be heard within six months of issue; and

(e) judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in Rule 54.14.”^{[footnote 54]}

42. The subparagraphs that are relevant to my Review are (a), (b) and (e). As to these:

1) In relation to subparagraph (a) the average determination time (in NSIP cases) for an application for permission on the papers is around 8-9 weeks from the date of issue compared to the target timescale of c. 7 weeks under PD 54D (3 weeks from the Acknowledgement of Service the deadline for which is 3 weeks from the service of the claim);

2) I do not have the data to enable consideration of performance against subparagraph (b);

3) In relation to subparagraph (e), the High Court is, on average, hearing judicial reviews within 10-11 weeks of the expiry period of the DGRs (the default deadline for which is 35 days after the grant of permission), compared to the target of 10 weeks under PD 54D.

4) There are, both at the permission stage and at the substantive stage, significant deviations from the average.

(ii) Case Progression in the Court of Appeal

43. I have tracked progression in the Court of Appeal based on the following assumptions:

1) As the Court of Appeal does not have an equivalent to the Planning Court, I have included the five cases which were excluded from the High Court analysis (see paragraph 37(2) above)^{[footnote 55]}:

2) Where I have not had access to the sealed Appellant’s Notice I have assumed an application was made to the Court of Appeal within 21 days of the date of the High Court judgment or (where the matter was refused permission at an OPH) the OPH;

3) In calculating the dates to judgment I have excluded those cases resolved at a permission to appeal (“PTA”) OPH^{[footnote 56]}.

44. It is important to bear in mind that the published statistics^{[footnote 57]} for the Court of Appeal show a substantial improvement in recent years in the time taken to deal with PTA applications and hand down judgments. This is obviously drawn from a much wider dataset than I have^{[footnote 58]}, and I have not broken down the Court of Appeal DCO cases year by year in the same way.

45. My findings are:

Table 4

Stage	Mean	Median	Fastest	Longest
Permission	13	11	5[footnote 59]	49[footnote 60]
Permission since 2020	11	11	5[footnote 61]	18
Hearing	34	28	18	63[footnote 62]
Hearing since 2020	27	24	18	46
Judgment	40	32	25	64[footnote 63]
Judgment since 2020	33	31	25	52

(iii) Case Progression in the Supreme Court

46. Six cases have sought permission to appeal from the Court of Appeal to the Supreme Court. Again I have used the following assumptions:

1) Where I have not had access to the application for permission to appeal to the Supreme Court I have assumed it was made 42 days from the date of the Court of Appeal decision;

2) I have taken the date from the decision as the date on the Order of the Supreme Court, though I note that sometimes there is a delay between the Order being made and being sent to the parties^{[footnote 64]}.

47. At the time of writing, three PTA applications have been refused, three are awaiting responses. The time taken for the Supreme Court to deal with applications is, on average, c. 16 weeks, with a variation between 6 weeks and 27 weeks.

Impact of legal challenges

48. In this section, I primarily focus on the ‘downstream’ impact of legal challenges on the projects under challenge. However, a number of respondents also suggested that legal challenges are having a chilling effect earlier in the administrative process, with promoters, the Examining Authority and the Secretary of State taking what is seen as an unduly precautionary approach to examining the effects of a development. One respondent indicated that, to even screen out an effect in EIA terms, it was effectively having to undertake a full EIA. This, it has been suggested, is slowing down the system ‘upstream’ too.

49. The approach taken by a scheme promoter to the progress of the NSIP once a legal challenge is launched varies promoter by promoter and scheme by scheme, as each DCO contains different requirements and different works which can be undertaken without discharging those requirements. Subject to that caveat, the following broad themes emerged.

50. First, the ‘lost time’ impact of a legal challenge to a DCO is not linear, i.e. a two year legal case does not lead to a two year delay in the start of works. This has a number of causes which include, broadly, (i) the need to undertake certain environmental works and surveys within particular seasons^{[footnote 65]}, (ii) constraints arising from other operators (such as statutory undertakers) who operate within and are affected by the system and whose cooperation is required for works to progress; and (iii) supply chain constraints^{[footnote 66]}.

51. Secondly, there may be wasted costs. Where, for example, supply chain components or workers have been booked months or years in advance the buyer may not be able to avoid, change, or move the contract, leading to aborted costs.

52. Thirdly, and as a result of a combination of the first and second reasons above, this inevitably leads to an increase in the construction costs of the project, exacerbated by other factors such as inflation. At the time of providing evidence to us, National Highways has calculated that the increase in costs arising attributable to its schemes, caused by legal challenges, is between £66 million and £121 million per scheme. The upper bound may be even higher depending on the stage legal challenges eventually reach. How these costs ‘sound’ for the taxpayer or consumer varies from scheme to scheme and provider to provider. For example, additional costs incurred by National Highways are paid for out of the public purse and are therefore covered by the taxpayer. The position is more complicated for those involved in energy infrastructure, with the increase in construction costs potentially being recovered from energy bill customers subject to oversight by Ofgem.

53. Fourthly, the benefits of the schemes are not realised in the time envisioned. DCOs are granted because decision-makers are of the view they are in the public interest. They come with a wealth of what the Secretary of State considers benefits. Those are delayed. This is of particular concern in the energy infrastructure sector where there will inevitably be costs for consumers if the renewable energy infrastructure cannot be brought online on time, and energy has to be obtained from other sources. In the renewable energy industry this cost is not simply financial – if energy has to be sourced from, for example, gas rather than solar or wind it would lead to additional greenhouse gas impacts.

54. Fifthly, as many promoters do not undertake the compulsory acquisition of land while the terms of the DCO are still in doubt, this leads to knock-on effects for third party landowners who lose clarity over whether and when their land will be acquired.

55. Sixthly, there are chilling effects for investors who operate in a global market. This is felt particularly keenly for the smaller promoters of energy schemes.

Conclusion

56. In the light of the considerations set out above, I conclude that that there is a case for streamlining the process for judicial review of DCOs, and onwards appeals arising from such cases, to reduce the time it takes for the high proportion of unsuccessful claims to be concluded. The non-linear nature of project impacts, described above, means that even reducing average times by (say) 2 months could have significant benefits. Increased certainty as to timescales, in contrast to the significant variations currently experienced, will also considerably aid project planning and investor/market confidence. Notably, almost all stakeholders, from the full range of standpoints (claimants, scheme promoters and the private & public sectors) considered that a quicker system of justice would be in their interests, provided that cases can still be tried fairly.

57. A small number of stakeholders queried whether there was any need for action, on the basis that the absolute number of DCO decisions that have been challenged is small: one respondent indicated around 30 legal challenges had been made, against 135 DCO decisions (c.22%).

58. I disagree. The absolute number is a product of the number of DCOs overall, which unsurprisingly (given the scale of NSIPs) is considerably lower than the number of conventional planning cases that progress through the TCPA 1990. What matters more is that each one is of national significance, that delays occasioned by unsuccessful challenges cause clear detriment to the public interest, the proportion of DCOs that are challenged (c.22%) is significant, and the proportion of those challenges that are unsuccessful is high. Moreover, DCO challenges have become more prevalent in recent years, from between 0-4 between 2010-2018, to a peak of 10 in 2022. In 2024 there have, so far, been 5.

Fig 1: No of s.118 JR claims brought in the High Court by year

Part 3: Potential procedural reforms

Costs

59. There is little doubt that the cost caps^{[footnote 67]} available for judicial reviews within the scope of the Aarhus Convention^{[footnote 68]} – as all NSIP cases will inevitably be – have contributed towards the proliferation of challenges to DCOs (and other planning decisions).

60. My terms of reference require me to make recommendations which are consistent with the United Kingdom’s international obligations. Changing the cost caps rules would not reduce the number of challenges to NSIPs unless the effect is that the increased costs of litigation would deter some claimants from bringing challenges to DCOs. That would not, however, be consistent with Article 9(4) of the Aarhus Convention, which provides that the costs of this type of litigation must be “not prohibitively expensive”.

61. Principally for this reason, there was hardly any appetite from stakeholders for fundamental changes to the rules relating to costs caps. Some stakeholders suggested that there may nonetheless be opportunities for refining those rules, so that there are more effective ways to ensure that those who are able to bear a higher costs burden (whether from their own resources or via crowdfunding) do so. The merits of that suggestion do not, however, fall within the remit of my review (because it would be a measure which does not bear upon the number of judicial reviews or the speed by which they are processed). Nonetheless, I do include provision for considering whether Aarhus costs caps should be varied in the standard CMC agenda that I recommend below and also again at the post-permission case management discussion – so that the level of the cap is kept under proactive review as the litigation proceeds.

Recommendation 1: for so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIPs.

Standing

62. Pursuant to the Senior Courts Act 1981, s.31(3), a claimant for judicial review must have a “sufficient interest in the matter to which the application relates” (often referred to as ‘standing’ to bring a judicial review claim). The application of this test in particular contexts is a matter for the Courts to decide. In the context of legal challenges to the grant of planning permission or development consent for major development projects, the Courts tend to take a broad approach to standing, reflecting the fact that a wide range of people can legitimately claim to have a interest in a project with significant benefits and significant impacts. One constraining factor is that, typically, a person who has not participated at all in the process leading to the challenged decision will not normally have a “sufficient interest”. See, for example, Axa General Insurance Ltd v. HM Advocate [2012] 1 A.C. 686 per Lord Reed JSC at [170] and Walton v Scottish Ministers [2013] P.T.S.R. 51 per Lord Reed JSC at [91]-[96].

63. I have considered whether in the context of challenges to DCOs, a more exacting statutory test for standing could be introduced. The strongest candidate for a heighted test is a requirement that a claimant for judicial review must have “participated substantially” in the examination of the DCO under challenge (as opposed to having had a more fleeting involvement in the process). Such a change would require primary legislation. I am unconvinced, however, that it would have any meaningful effect on the number of DCOs which are subject to challenge. Neither I nor stakeholders whom I interviewed were able to point to a single judicial review in the NSIP context where the claimant would have lacked standing if the test was “substantial participation” in the examination.

64. I also note that in 2013 the Government consulted on limiting local authority rights to challenge DCOs and that was never taken forward^{[footnote 69]}.

Recommendation 2: there is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs.

The permission stage

Reducing the number of bites of the cherry at the permission stage

65. There is a compelling case for reducing the number of bites of the cherry at the permission stage. Three bites of the cherry are not necessary to secure fair and effective handling of claims. And yet, as Part 2 of this report illustrates, each bite extends the duration of a judicial review claim by several weeks at minimum and several months in some cases.

66. The key question is whether the reduction should be to two bites (one in the High Court and one in the Court of Appeal) or one (one in the High Court, with no right of appeal).

67. In either eventuality, the paper permission stage in the High Court should be eliminated. Permission applications in NSIP cases should proceed straight to an oral hearing. In a single-step permission stage in the High Court, it would not be appropriate to deny the parties an oral hearing (particularly given the complexity of such cases and the fact that DCOs invariably involve compulsory acquisition of land and rights). Moreover, I was told that judges get a relatively short time allocation to consider paper permission applications in judicial review cases.

68. The s.289 TCPA model illustrates that a single opportunity to seek permission would be consistent with constitutional principles and international obligations, provide that there is a right to an oral hearing (as there is in s.289 proceedings) prior to the Court’s determination of whether to grant permission.

69. Some stakeholders suggested that having different rules for the permission stage in NSIP judicial reviews, compared to the rules applicable to judicial and statutory reviews in other planning cases (whether in relation not the number of bites of the cherry at the permission stage or in relation to the threshold for permission, as to which see paras. 74-84 below), would be inconsistent with the UK’s obligations under Article 9(4) of the Aarhus Convention because it would be “unfair to environmental claimants (as opposed to JR claimants generally)”. I disagree for the following reasons:

1) There is no textual basis or authority (in the case-law of either the domestic courts, the CJEU or the Aarhus Convention Compliance Committee) for such a proposition. Neither the wording of the Convention nor the case-law prohibits the imposition of a permission stage in judicial review proceedings, nor do they require the permission process to be identical in all kinds of proceedings;

2) More specifically, Article 9(4) of the Convention requires that judicial proceedings must “provide adequate and effective remedies” and “be fair, equitable, timeline and not prohibitively expensive”. There is nothing in the text of the Aarhus Convention to indicate that “fairness” requires a comparison with other proceedings under the same domestic regime. Nor have I found any such requirements in decisions of the Aarhus Convention Compliance Committee, whether endorsed by the Meeting of the Parties or otherwise. “Fair” here means what is fair for the claimant^{[footnote 70]}. But the focus of “fairness” is on the quality of the proceedings themselves, for example by ensuring that procedures are impartial, free from prejudice, favouritism or self interest^{[footnote 71]}, are properly notified to claimants^{[footnote 72]}, and that there are adequate reasons^{[footnote 73]}. Article 9(4) is not about comparing some types of procedures with others;

3) It is hard to see how the Courts would hold that there is a constitutional or international law right to have multiple attempts at persuading a court that a prospective claim is arguable, or to proceed to a full hearing in a claim on grounds which whilst arguable are not likely to succeed. Fairness does not require a claim which is arguable but weak to proceed to a full trial as opposed to being weeded out at the permission stage;

4) s.289 TCPA 1990 already has different procedures at the permission and appeal stages in relation to challenges to planning enforcement appeal decisions, compared to other challenges to planning decisions (such as s.288 challenges to planning appeal decisions and judicial review challenges to local authorities’ grant of planning permission), and there has been no suggestion by the Courts that this is unconstitutional or in breach of international obligations;

5) The suggestion that there would be differentiation between “environmental claimants” and “JR claimants generally” is wrong. The differentiation would be between judicial review concerning DCOs for NSIPs (whether or not on environmental grounds), and other judicial reviews (whether or not on environmental grounds);

6) The national significance of NSIPs, and the fact that, on account of that national significance they are granted development consent under a separate, bespoke statutory regime – the 2008 Act – provides ample justification for a different approach, if a justification is needed.

70. There is a strong superficial attraction to reducing the number of bites of the cherry at the permission stage to one. Many stakeholders on the DCO promotion side expressed the view, with considerable justification, that this would significantly assist in quickly weeding out weak claims considerably more quickly than is done at present.

71. Against this, there are two strong counter-arguments in favour of maintaining a second (but not a third) opportunity to seek permission. First, as one informed stakeholder indicated, judges may be more inclined to err on the side of caution and grant permission in marginal cases if their decision is not only the first but also the final opportunity for the claimant to obtain permission. Secondly, allowing no scope for the refusal of permission to be reconsidered by another judge will inevitably carry the risk that mistakes are made, and that justice is not done. For example, in the recent Finch case^{[footnote 74]}, permission to proceed with the claim for judicial review was refused by the High Court, but following the subsequent grant of permission by the Court of Appeal, the case has proceeded to the Supreme Court on what that Court considered was an arguable point of law of general public importance concerning the approach to environmental impact assessment. The Supreme Court has, at the date of this report, still not issued judgment almost a year after the hearing, which indicates that it is finding the issue difficult to decide. Yet if there had been only one bite of the cherry at the permission stage, the case would have been extinguished at birth. I note also that in approximately half of the NSIP cases where the claimant has appealed against the refusal of permission by the High Court, the Court of Appeal has disagreed with the High Court and granted permission, see paragraph 33(5) above.

72. There is a further practical point. Reducing the number of bites of the cherry at the permission stage to one – i.e. a hearing in the High Court with no right of appeal – would require primary legislation (probably, but not necessarily, following the s.289 TCPA 1990 model). A reduction to two bites of the cherry – one in the High Court followed by a right of appeal, could be effected by amendments to Part 54 of the Civil Procedure Rules and/or the accompanying practice direction, to provide that in judicial review cases challenging a DCO, the question of whether permission should be granted should proceed straight to a hearing with no prior written stage.

73. The issue of timings in the Court of Appeal are addressed later in this report. I consider that they can be adequately resolved through the introduction of a Practice Direction to CPR Part 52 setting target timescales for appeals from the High Court in cases concerning NSIPs (this could be expressed either as applying to NSIPs cases alone or as applying to all cases which were designated in the High Court as significant Planning Court claims under CPR PD 54D, which I was told in practice all NSIP cases are). If this is done, the target timescale for the Court of Appeal to consider an appeal against the refusal of permission to apply for judicial review in an NSIP case should be either 4 or 6 weeks. On this basis, the benefits of retaining a second bite of the cherry at the permission stage would outweigh the relatively limited additional delay. The position would be more marginal, and the case for primarily legislation reducing the number of bites of the cherry to one, if target timescales for the Court of Appeal are not introduced.

74. Two stakeholders argued for the abolition of the permission stage, arguing that this would result in claims being processed more quickly overall as they could proceed straight to a substantive hearing. I disagree. I have already outlined how the permission stage could be streamlined, whilst retaining what is an important check against meritless claims taking up valuable court time as well as incurring unnecessary costs for all parties. Without a permission filter there is also a real risk that legal challenges to DCOs could further proliferate.

75. Another stakeholder suggested that in judicial review claims challenging DCOs, there should be two options at the paper permission stage: certification as Totally Without Merit or alternatively (if the claim is not TWM) a rolled-up hearing – thus avoiding the delay of a permissions stage in non-TWM cases. Were it not for Recommendation 7 below, which proposes the introduction of pre-permission Case Management Conferences in DCO judicial review cases, this proposal would have force. With the introduction of CMCs, however, the question of whether there should be a rolled-up hearing as opposed to a contested permission stage is best left to the parties and the assigned Judge to consider at the CMC in light of the particular circumstances of the case.

76. It would be sensible for Government Legal Department lawyers to be encouraged to be more prepared to suggest to their clients that permission be conceded in cases where the claim plainly meets the threshold for permission. I heard anecdotal evidence suggesting that, in practice, Government respondents in judicial reviews of NSIPs (and indeed in other contexts) contest permission in all but the most exceptional cases^{[footnote 75]}. That is my own experience too. Conceding the grant of permission does not amount to any concession as to the prospects or strength of the case to be considered at a substantive hearing. It is simply a pragmatic action which cuts out the delay caused by the permission stage in cases which are obviously going to pass through that stage. It is a practice that is widely adopted by judicial review respondents in Northern Ireland and one which should be more proactively considered by their English counterparts.

Recommendation 3: the current three bites of the cherry at the permission stage is excessive and should be reduced to either two or one. As to this:

1) Subject to the introduction of a Practice Direction to CPR Part 52 setting target timescales in the Court of Appeal for appeals and applications for permission to appeal from the High Court in cases concerning NSIPs (see Recommendation 7 below), there should be two opportunities to obtain permission: one in the High Court and one in the Court of Appeal.

2) The Civil Procedure Rules Committee (“CPRC”) should be invited to introduce amendments to the CPR to provide that, in judicial review cases challenging a DCO, the question of whether permission should be granted shall proceed in the High Court straight to a hearing with no prior written stage. The target timescale for the oral hearing in the High Court should be within 4 weeks of the deadline for the Defendant and any Interested Parties to file their Acknowledgment of Service. The target timescale for the Court of Appeal’s determination of an application for permission to appeal against the refusal of permission to apply for judicial review should also be 4 weeks.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to reduce the number of permission stages to one (probably but not inevitably using the s.289 model)^{[footnote 76]}.

Raising the threshold for permission

77. There is much to be said for raising the threshold for permission to apply for judicial review of DCOs, to the heightened Mass Energy threshold, so that only those claims likely to succeed are allowed to proceed to a substantive hearing. There is no right, either under UK constitutional principles or international law, for an arguable but weak or mediocre claim to proceed to a full hearing rather than being weeded out beforehand.

78. Raising the threshold would not be inconsistent with legislation, and therefore it could be done through amendments to CPR Part 54 (which relates to judicial and statutory review) and/or Practice Direction 54D (which relates to Planning Court claims).

79. If the threshold is raised for DCO judicial reviews also, that would introduce a mismatch between the test for permission in those cases and the test for permission in other judicial and statutory review cases, both in the planning context and more broadly. This would not be unconstitutional or contrary to international law (see paragraph 69 above). Whilst it might at first sight appear incongruous, the Administrative Court (of which the Planning Court is a component) and the appellate courts are used to applying different standards of review in different contexts of public law, for example Wednesbury reasonableness in judicial review claims relying on common law grounds and proportionality in judicial review claims relying on the European Convention on Human Rights enshrined in the Human Rights Act 1998. Further, the national significance of NSIPs and their separate, bespoke statutory regime reflecting that national significance would provide a coherent basis for distinguishing, in relation to the threshold for permission, judicial review claims of DCOs from judicial and statutory review claims in other contexts (including other planning contexts). For these reasons, the mismatch in my view presents an unconvincing rationale for not raising the threshold for permission.

80. A more powerful argument raised by some stakeholders was that if the test for permission were raised to the higher Mass Energy threshold, i.e. ‘likely to succeed’ rather than ‘arguable’, this more granular consideration of the merits of the claim would make the permission stage more cumbersome. Fuller written arguments would be likely, and the Court would likely need to spend considerably more than the default 30 minutes for an oral permission hearing (most likely at least ½ day). This could have an effect on judicial resources as well as the timely listing of permission hearings. Applications for pre-permission disclosure may also proliferate if the permission stage becomes more granular. It is notable that Mass Energy was itself a case which heard full argument and evidence, and that the Court’s decision to adopt a higher threshold for permission in that case has been characterised as being due to it being in as good a position to consider the merits as it would be following a substantive hearing.

81. Against this, there is strong anecdotal evidence that permission hearings in judicial review claims of DCOs already take considerably longer than the default 30 minutes, due to the particular legal and factual complexity of such cases, and for the same reason such claims are already document-heavy even at the permission stage. The concerns summarised in the foregoing paragraph may therefore by more hypothetical rather than real.

82. The advantage of raising the threshold for permission (namely the swifter weeding out of arguable but weak or mediocre claims) would be to some degree reduced if Recommendation 3 is taken forward, which would reduce current delays at the permission stage, both in the High Court and on appeal. The potentially more cumbersome nature of the permission stage if the threshold is raised may become more challenging if the timescales are shortened, although that is not to say they would be unworkable.

83. If the current threshold remains, there is merit in ensuring that applications for permission are tested against both aspects of the test, namely:

1) “an arguable ground for judicial review”

2) “which has a realistic prospect of success”

84. There appears to be a misapprehension on occasions that the test is mere arguability. It is not^{[footnote 77]}.

Recommendation 4:

1) There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR;

2) This requires further consideration in the light of whether the other recommendations in this report are taken forward; and

3) The necessary further consideration could be undertaken in the context of a consultation on any proposed changes to the CPR that are made in the light of this report.

Specialist NSIP judges in the High Court

85. There are currently a large number^{[footnote 78]} of High Court Justices authorised to sit in the Planning Court. Only four of these specialised in planning as practitioners prior to joining the judiciary. Still fewer had a significant NSIP related practice.

86. It is not the task of this Review to comment upon the factors that appear to make a judicial career less attractive to lawyers in private practice than it may have been in the past, save to observe that this general issue appears to be having an effect in the specific context of planning, in particular on the proportion of leading planning and infrastructure practitioners prepared to consider a career change to the High Court. It is right to mention this problem, even if its solutions lie outside my remit.

87. Some stakeholders felt that the heightened public interest in NSIP cases and their particularly specialist nature justified the introduction of an ‘NSIP ticket’ within the Planning Court, pursuant to which around 4-6 judges (i.e. a small, specialist pool of judges as opposed to any judge who is authorised to sit in the Planning Court) would be eligible to hear judicial review challenges to NSIPs. Concerns were expressed about particular instances where non-specialist judges in NSIP cases reached what were considered to be surprising decisions (including at the permission stage), and about the impact on stakeholder confidence in the judiciary from instances where important cases in a highly specialist field were determined by judges with little or no experience of that area.

88. Against this, other stakeholders expressed two main concerns about the idea of an ‘NSIP ticket’ proposal. First, that this could lead to ‘judicial groupthink’, and secondly that it could introduce bottlenecks in judicial resources, leading to delay, particularly at times when one or more of those with an ‘NSIP ticket’ are engaged on other matters or on leave.

89. It was also drawn to my attention that, as a matter of practice, the Planning Liaison Judge already reviews each incoming Significant Planning Court case before it is allocated, to ensure that cases are allocated to judges with an appropriate level of expertise.

90. Further, whilst most judicial review claims challenging DCOs relate to matters of planning and/or environmental law, a considerable proportion concern issues of relevance to planning generally rather than only in the specific context of NSIPs, and it is conceivably possible that such a claim may be advanced on grounds falling outside the specific field of planning law, for example on equalities or human rights grounds. These points tell in favour of retaining the current practice, whereby case allocation is the exercised of informed discretion by the Planning Liaison Judge.

91. One stakeholder suggested that it would be “constitutionally improper” for Government to advance the ‘NSIP ticket’ proposal, on the basis that it would interfere with the independence of the judiciary. I am unconvinced by this. The structure of the courts and tribunals system is a matters of public policy in which the Government and Parliament have legitimate interests. For example, the establishment of the Planning Court was itself the product of a Government proposal^{[footnote 79]}.

Recommendation 5:

1) There are respectable arguments either way on the question of whether or not there should be a specialist ‘NSIP ticket’ within the Planning Court, pursuant to which around 4-6 judges with in-depth NSIP experience would be eligible to hear judicial review challenges to DCO decisions.

2) On balance, I conclude that the case in favour of an ‘NSIP ticket’ is not yet made out.

3) If an ‘NSIP ticket’ is introduced, this could be done either by changes to the CPR or by judicial practice. Legislation would not be required.

Case management

92. Some stakeholders favoured a presumption of expedition for judicial review claims challenging DCOs. I was told of delays in applications for expedition in specific cases and of parties being deterred from making an application for expedition due to concerns about the uncertainty (in terms of both timescale and outcome) of such applications. For these reasons, some stakeholders favoured a presumption of expedition in DCO judicial reviews.

93. For Significant Planning Court Claims, there are already target timescales set out in CPR PD 54D paragraph 3.4, namely:

“ (a) applications for permission to apply for judicial review or planning statutory review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;

(b) oral renewals of applications for permission to apply for judicial review or planning statutory review are to be heard within one month of receipt of request for renewal;

(c) applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;

(d) planning statutory reviews are to be heard within six months of issue; and

(e) judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party as provided in Rule 54.14.”^{[footnote 80]}

94. Significant Planning Court Claims are defined in PD 54D paragraph 3.2 as:

“… claims which—

(a) relate to commercial, residential, or other developments which have significant economic impact either at a local level or beyond their immediate locality;

(b) raise important points of law;

(c) generate significant public interest; or

(d) by virtue of the volume or nature of technical material, are best dealt with by judges with significant experience of handling such matters.”

95. I was told that in practice all DCO judicial reviews to date have been treated as Significant Planning Court Claims. For clarity, this practice should be put on a formal footing by adding a new subparagraph to paragraph 3.2 in the following terms “(e) which relate to a decision to grant or refuse a development consent order under the PlanningAct 2008.”

96. My research indicates:

1) The target for permission decisions on the papers is not consistently met. On average, the time taken for a permission decision seems to be c. 8 weeks rather than the c. 7 weeks envisioned by PD 54D para 3.4(a), with notable outriders on either side.

2) The High Court is, on average, hearing judicial reviews within 10-11 weeks of the expiry of the time period for submission of detailed grounds. This compares to the 10 week target set out in PD 54D para 3.4(e) (see Table 2, above). That will give those involved in the process, particularly developers, some certainty once the date for filing detailed grounds is ascertained. Although as that only occurs part of the way through proceedings it is unlikely to be clear to them at or prior to the start of proceedings.

3) There is considerable variance from these averages, which undermines the ability of stakeholders in the NSIP regime to predict accurately how long it will take for a challenge to a DCO to be progressed in any given case. That uncertainty is itself detrimental to the public interest.

97. Expedition could, in principle, result in cases being heard and determined even more quickly than the PD 54D target timescales. However, judicial resources are finite and already pressed; for every case that jumps the queue, others have to be bumped down and wait longer. Whether the case for expedition in any given DCO judicial review justifies that consequence will depend upon the circumstances and is more aptly left to judicial discretion. Further, not all cases will be suitable for expedition beyond the PD 54D target timescales. Case-specific consideration of whether to grant expedition will allow for consideration of matters such as, for example, what timescales for the submission of evidence are realistically possible having regard to the complexity of the case, and whether the imposition of expedited hearing dates would cause unfairness to any party in the particular circumstances.

98. Rather than introduce a presumption of expedition and/or automatic tighter timescales than those in PD 54D, the key is to ensure that the question of whether any given case should proceed faster gets before a judge at the soonest opportunity.

99. There would also be advantages to the consideration of other procedural matters being front-loaded, as I detail below.

100. I consider that the solution is to introduce automatic pre-permission Case Management Conferences (“CMCs”) in judicial review cases challenging DCOs.

101. Following the Rosewell review of planning appeal inquiries^{[footnote 81]}, the Planning Inspectorate introduced CMCs in all planning inquiry appeals, to ensure the smooth and efficient running of such cases, by requiring the parties and the Inspector to turn their minds at an early stage to matters such as timetabling, any procedural rulings that were necessary, the range of evidence to be considered, the scope for narrowing the issues between the parties, and so on. The overwhelming consensus is that these CMCs are an invaluable measure in streamlining the planning inquiry appeal process.

102. There should be an automatic time window for the pre-permission CMC to take place, so as to avoid negotiations or debates about dates which would lead to further delay. This should be the second and third weeks after the deadline for the Acknowledgment of Service of the Defendant(s) and any Interested Parties^{[footnote 82]}.

103. The Court and the parties should be appropriately flexible about what time of day the CMC should take place and whether it should be in-person or virtual, so as to accommodate any other commitments the main protagonists may have during the CMC listing window. The CMC will be more productive if at least one counsel on each side is able to attend the CMC, rather than a substitute. Ideally, the judge assigned to determine whether permission should be granted should also conduct the pre-permission CMC.

104. The parties should be required to submit a joint position statement to the Court no later than 2 working days prior to the CMC covering the following matters^{[footnote 83]}:

1) Whether the Claimant maintains all the grounds pleaded in the light of the response submitted by the Defendant(s) and any Interested Parties;

2) Whether the Defendant(s) and any Interested Parties accept that any of the grounds are arguable;

3) The parties’ views on the pros and cons of a rolled-up hearing;

4) The parties’ views on whether the case should be subject to expedition so that it is progressed faster than the PD 54D target timescales;

5) If the claim is not to proceed to a rolled-up hearing, the parties’ suggested dates and time estimate for the permission hearing;

6) The parties’ positions on disclosure (see further below);

7) Whether the parties are aware of any other pending proceedings which could affect the present claim, and if so the parties’ position in relation to whether the cases should be joined, whether one should be stayed to await the other, and any other procedural implications;

8) The parties’ positions on whether the default Aarhus cost caps should be varied or removed under CPR r. 46.27;

9) Any other procedural matters.

105. The benefits of the parties and the Court being required to focus their minds on these issues at the earliest opportunity justify holding the CMC before any permission hearing. If at a subsequent permission hearing, permission to proceed with the claim is granted, there should be an updated case management discussion at the end of the permission hearing^{[footnote 84]}, to cover the following matters^{[footnote 85]}:

1) The time estimate for the substantive hearing;

2) Whether the case should be subject to expedition so that it is progressed faster than the PD 54D target timescales;

3) Disclosure (see further below);

4) Interim relief;

5) Whether the parties are aware of any other pending proceedings which could affect the present claim, and if so the parties’ position in relation to whether the cases should be joined, whether one should be stayed to await the other, and any other procedural implications;

6) The parties’ positions on whether the default Aarhus cost caps should be varied or removed under CPR r. 46.27; and

7) Any other procedural matters.

106. The parties’ skeleton arguments for the permission hearing should contain an appendix setting out their intended position in relation to these matters in the event that permission is granted at the hearing.

107. As noted above, disclosure should be on the agenda for both the pre-permission CMC and the post-permission case management discussion. A range of views were expressed by stakeholders about disclosure^{[footnote 86]}:

1) Some, mainly on the Claimant side, considered that more timely consideration of disclosure by Defendants, and earlier provision of documents, would provide Claimants with an earlier opportunity to undertake a fully informed view of the merits of their grounds, and to abandon those grounds or claims which disclosure demonstrated where ill-founded (albeit I was not provided with any specific examples of claims or grounds which would have been withdrawn if there had been earlier disclosure). Earlier disclosure, they said, would also reduce the risk of applications to extend deadlines later in the lifetime of a judicial review.

2) Others, by contrast, considered that this significantly overplayed the role of disclosure in judicial review proceedings, and that a requirement that Defendants (and possibly also Interested Parties) provide what would otherwise be confidential material prior to the grant of permission to apply for judicial review (or an order for a rolled-up hearing) would place undue burdens on them and run the risk of meritless judicial review claims being brought as a fishing expedition for documentation.

108. Whilst there is force in the views summarised in paragraph 107(2), there may be some cases where earlier consideration of disclosure could have a streamlining effect. This will depend case to case. Accordingly, rather than changing the rules on the timing of disclosure, as I was encouraged by some to recommend, the better course of action is for disclosure to be a specific agenda item both as the pre-permission CMC (which will at least force the parties and the Court to turn their minds to the matter at that early stage) and thereafter again at the post-permission case-management discussion. Recommendation 6: the CPRC should be invited to amend CPR PD 54D paragraph 3.2 to add a new subparagraph providing that DCO judicial reviews are automatically deemed Significant Planning Court Claims.

Recommendation 7:

1) The CPRC should be invited to amend CPR Part 54 and/or PD 54 to introduce automatic pre-permission CMCs in judicial review claims challenging DCOs.

2) The pre-permission CMC should take place in the 2nd or 3rd week after the deadline for the Acknowledgement of Service of the Defendant(s) and any Interested Parties.

3) There should be appropriate flexibility as to the time of day and format (in person or virtual) of the pre-permission CMC so as to ensure if at all possible that at least one of the counsel retained by each party is able to participate.

4) The parties should be required to submit a joint position statement to the Court no later than 2 days prior to the pre-permission CMC, covering the topics listed at paragraph 104 above which shall form the agenda for the CMC.

5) If at a subsequent permission hearing, permission to proceed with the claim is granted, there should be an updated case management discussion at the end of the permission hearing, covering the topics listed at paragraph 105 above which shall form the agenda for that discussion.

6) Where permission is granted by the Court of Appeal:

a. If the Court of Appeal grants permission at a permission hearing and the matter is kept in the Court of Appeal, the updated case management discussion should take place at the end of that hearing;

b. If the Court of Appeal grants permission on the papers and keeps the matter in the Court of Appeal, there should be an updated case management discussion within 2 weeks covering the topics listed at paragraph 105 of this report;

c. If the Court of Appeal grants permission and returns the matter to the High Court, there should be a 2nd CMC within 2 weeks to cover the topics listed at paragraph 105 of this report which shall form the agenda for that 2nd CMC.

The Court of Appeal

109. I have set out the statistics in relation to the Court of Appeal in Part 2 of this report. Broadly speaking, since 2020 it has taken the Court of Appeal on average around 11 weeks to determine an application for permission to appeal, and 34 weeks to deliver judgment, but with some cases taking substantially longer. Although the sample size of NSIP cases is small, meaning that any statistics must come with a health warning, these figures are broadly reflective of the turnaround times in the much broader category of planning cases generally published in the Court’s statistics from 2017-2022. Overall, Court of Appeal turnaround timescales have improved significantly since 2017^{[footnote 87]}. The fact remains, however, that unsuccessful appeals in challenges to DCO decisions cause significant additional delays to the delivery of the NSIP in question, which for the reasons outlined in Part 2 above is detrimental to the public interest. There is therefore a public interest in reducing appeal timescales.

110. A point stressed by many stakeholders was that there is considerable uncertainty in relation to timelines in the Court of Appeal – some cases are dealt with relatively swiftly, others take several months. In a sector where predictability is vital, this uncertainty is viewed by stakeholders as highly unsatisfactory. One stakeholder heavily involved in promoting DCOs described this as “the most pressing” issue within the remit of my Review. There was broad consensus on this point amongst stakeholders.

111. Unlike the High Court, of which the Planning Court is a sub-component (sitting within the Administrative Court in the Kings’ Bench Division) the Court of Appeal does not have a specialist planning division, albeit by convention there is maintained a small number of Justices of Appeal with significantly planning experience. That number is currently smaller than it has been in the past. Currently there is only one judge in the Court of Appeal whose main area of practice prior to becoming a judge was planning; and none in the Supreme Court. This may be for the same reasons as discussed at paragraph 86 above.

112. Creating a specialist planning division of the Court of Appeal would be impracticable for many reasons. There is, however, a strong case for introducing a new Practice Direction accompanying CPR Part 52, dealing with appeals from the Planning Court, which sets target timescales for the determination of applications for permission to appeal, and (where permission is granted) thereafter substantive appeals. These target timescales should at minimum apply to DCO judicial reviews, although there may be case for applying them to all appeals in cases which were designated by the High Court as Significant Planning Court Claims.

113. The target timescales should be:

1) For permission to appeal and appeals against the refusal of permission to apply for judicial review: determination 4 weeks from the application for permission to appeal; and

2) For the hearing of substantive appeals: 4 months from the application for permission to appeal.

114. These timescales, if implemented, would have the effect of:

1) Reducing the average turnaround times for appeals and PTA applications in NSIP cases by a meaningful degree; and

2) Providing more certainty to stakeholders in the NSIP regime as to how long they can expect any litigation to last if it proceeds to the Court of Appeal after the High Court.

115. In my opinion, they strike the right balance between recognising the competing pressures on judicial resources and the public interest in the swift determination of judicial reviews concerning NSIPs. They would make Court of Appeal proceedings in DCO cases subject to similar target timescales as are applicable in the High Court, which would not only considerably reduce delays but also provide stakeholders in the NSIP regime with much greater certainty as to the overall duration of post-DCO litigation. The relatively limited number of judicial review cases concerning NSIPs (a handful per year) ought to mean that these targets are not too onerous on the Court of Appeal and do not unduly delay other appeals over which the NSIP appeals would be prioritised.

116. If a party in particular case wishes to make the case for a more expedited appeal process based upon the particular circumstances of that case, it can do so either in the Appellant’s application for permission to appeal or alongside the Respondent’s statement of reasons why permission appeal should be refused (under CPR PD52C para 19(1)(a)).

117. As noted above, the legislative characterisation of a challenge under s.289 TCPA 1990 as an “appeal”, as opposed to a judicial or statutory review, brings into play s.55 AJA 1999 which imposes a higher test for permission to appeal, namely the ‘second appeals test’ discussed above. This would also be the case in the NSIP context if Recommendation 3(3) above is taken forward with primary legislation.

Recommendation 8:

1) The CPRC should be invited to amend the CPR to introduce a new Practice Direction accompanying CPR Part 52, dealing with appeals to the Court of Appeal from the Planning Court, which sets target timescales for the determination of applications for permission to appeal, and (where permission is granted) thereafter substantive appeals. These target timescales should at minimum apply to DCO judicial reviews.

2) The target timescales in the Court of Appeal should be^{[footnote 88]}:

a. For permission to appeal and appeals against the refusal of permission to apply for judicial review: determination 4 weeks from the application for permission to appeal.

b. For the hearing of substantive appeals: 4 months from the application for permission to appeal.

3) Alternatively, if target timescales for the Court of Appeal in NSIP cases are not introduced, then there may be a case for primary legislation to recharacterise challenges to DCOs as an “appeal” which, as well as reducing the number of permission bites of the cherry to one (see Recommendation 3(3) above), would also make onward appeals to the Court of Appeal subject to the heightened test for second appeals.

The Supreme Court

118. There remains the issue of further appeals to the Supreme Court. Here too, there is a bottleneck. The anecdotal experience of stakeholders was that applications for permission to appeal invariably take some months to be determined (the most recent in an NSIP case being the Supreme Court’s refusal to grant the claimant in the challenge to the DCO for Sizewell C permission to appeal – permission to appeal was refused on 8th May 2024, almost 5 months after the Court of Appeal’s order dismissing the Claimant’s first appeal). The anecdotal evidence was corroborated by the admittedly limited data on timescales of NSIP cases in the Supreme Court (and is consistent with experience of other significant planning case in the Supreme Court).

119. For similar timescales to those proposed above for the Court of Appeal to be introduced in the Supreme Court, the Supreme Court Rules would need to be amended. Under s. 45 of the Constitutional Reform Act 2005, the content of the Supreme Court Rules is a matter for the President of the Supreme Court to decide in consultation with certain bodies^{[footnote 89]}.

120. It must be recognised that the Supreme Court only entertains appeals which raise an arguable point of law of general public importance^{[footnote 90]}. At this level, therefore, the national significance of DCO judicial reviews is unlikely to be a differentiating factor justifying automatic target timescales for the hearing of substantive appeals. There may, however, be a case for introducing target timescales for the determination of applications for permission to appeal. This is a matter which the President of the Supreme Court should be invited to consider.

Recommendation 9: the President of the Supreme Court should be invited to consider amending the Supreme Court Rules to introduce target timescales for the determination of applications to the Supreme Court for permission to appeal in judicial review challenges to DCOs.

Key Performance Indicators

121. With the considerable help of Nick Grant, I was able to review data on, amongst other things, the timescales in which judicial reviews of NSIPs have been progressed by the High Court to date and by which appeals to the Court of Appeal and Supreme Court progressed thereafter.

122. That data is not currently published in an easily accessible format. It should be, so that all stakeholders in the NSIP regime have transparency as to the speed by which the Courts are progressing judicial reviews in DCO cases. This will also help inform consideration of whether further procedural improvements may in future be justified, and/or whether judicial resources in this sector should be bolstered.

123. The most straightforward approach would be for Key Performance Indicators to be published by (at least) the Planning Court and Court of Appeal which, at minimum, should indicate the percentage of cases which have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average timescales are. An advantage of extending this to Significant Planning Court cases generally (including onward appeals), as opposed to only NSIP cases, is that this will increase the sample size and thus make the statistics more reliable.

124. The Planning Inspectorate publishes similar data, regarding its turnaround times for planning and enforcement appeals, on a rolling three month basis^{[footnote 91]}. Given that the data should be easily compiled, there is no good reason why the same could not be done by the Courts.

Recommendation 10: the Planning Court and Court of Appeal should be invited to publish data on a 3 month rolling basis which, at minimum, should indicate the number and percentage of cases which in the last 3 month period have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average and maximum turnaround times have been in that period (for both the permission and the substantive stages).

Remedies and other matters

125. Some stakeholders suggested that provision should be made for the decision-making Secretary of State to issue a preliminary, or ‘minded to’, decision prior to issuing his or her final decision determining whether or not to grant a DCO^{[footnote 92]}. The parties to the examination would be given an opportunity to comment on the ‘minded to’ decision, and (so the suggestion goes) legislation would prevent any judicial review grounds being granted permission to proceed if they relate to matters which could and should have been raised in response to the ‘minded to’ decision. This, would flush out many challenges - particularly ones alleging inadequate reasons, ambiguities or other infelicities in the wording of the decision letter - before the decision is issued, and provide a pre-decision opportunity to correct errors before the final decision is issued.

126. There is much to be said for this suggestion. Other stakeholders noted, however, that it would introduce a likely substantial and time-consuming layer into the DCO consenting process, and may introduce further judicial review risks, such as claims based upon a failure properly to grapple with (what are likely to be very detailed from many parties) representations in response to the ‘minded to’ letter and/or failure to consider those representations with an open mind.

127. On balance, I do not consider that the benefits of introducing a ‘minded to’ step in the decision-making process outweigh the potential disbenefits provided that my other recommendations to speed up the judicial review process are taken forward.

128. It is conceivable that some challenges of the kind that the introduction of a ‘a minded to’ stage could flush out could, in any event, be appropriately dealt with (where the claim succeeds) by a suspended quashing order under the new powers conferred by the s.1 of the Judicial Review and Courts Act 2022. This new power has not yet been exercised by the Planning Court. A number of stakeholders considered that it could be useful in the context of challenges to DCOs, albeit no-one was able to point to a specific case so far where it would have made a difference.

129. Lastly, there was broad support for the Planning Court making greater use of the ability to certify a claim as TWM^{[footnote 93]}. There was a general feeling that this power had not been exercised as widely as it might have been in the DCO context.

Implications for judicial review in other fields

130. The remit of my review is legal challenges to DCOs relating to NSIPs. I have attempted to stick to that remit. I appreciate that if my recommendations are taken forward, there may be a case for extending some of them to all Significant Planning Court Claims, or more widely still. I do not comment on the merits of that.

131. Plainly, any changes to the procedures relating to judicial reviews of the grant of DCOs will also apply to a judicial review of a decision to refuse a DCO. The statutory context is identical and there is no basis for any distinction. No stakeholder suggested otherwise.

132. There is also likely to be sense in applying most of all of these recommendations (with appropriate adaptions) to judicial reviews of National Policy Statements issued under the 2008 Act, which set the framework for the determination of DCO applications.

Other matters affecting the delivery of NSIPs

133. In my conversations with stakeholders, several suggestions were made as to how the infrastructure consenting process could be streamlined, and how the risk of legal challenges succeeding could be reduced, in ways that fall outside my TOR. I do not comment on these in this report but I shall communicate my thoughts on these points separately.

Appendix 1: Terms of reference

Background

In the 22 November 2023 ‘Getting Great Britain Building Again’ policy paper, HM Government committed that:

The government will (therefore) explore options to discourage repeated and potentially inappropriate legal challenges that add significant taxpayer costs, while maintaining access to justice in line with our domestic and international legal obligations. We will review different ways to do this, for example, amending the rules for unsuccessful or repeated challenges and will report on the findings of this review within 3 months.

DLUHC intends to publicly appoint Charles Banner KC to lead this review. Charles will work with Nicholas Grant to support this review and DLUHC will create a dedicated Secretariat to project manage the review and act as a link between Charles and Minister Rowley, who will be the responsible minister.

Terms of reference

Purpose

The purpose of the review led by Charles Banner KC, is to explore causes of legal challenges brought against the NSIP regime and the scope and options for improving existing processes. We want to ensure the government is maintaining access to justice in line with our domestic and international legal obligations, whilst considering whether improving existing processes could reduce delay to vitally important infrastructure.

The review will consider how to define the term ‘inappropriate’ legal challenges as made in the Getting Britain Building paper and establish whether challenges which can be deemed to fit this definition are having a particular impact.

Scope

The review will aim to answer the following key question:

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?

Objectives

The review will answer this above question within 3 and a half months from the date that Charles Banner KC is appointed. This will take the form of a written report to Secretary of State DLUHC and Minister Lee Rowley Minister of State for Housing and Planning. This report may be published on GOV.UK.

The review reports to the Minister of State for Housing and Planning. The review will report halfway through the 3 and a half month period to update the minister.

Remit

The review will be both independent and advisory focused on the causes of legal challenges brought against the NSIP regime and the scope and options for improving existing processes.

New panel members

The review may co-opt new panel members. These must be agreed by the Minister for Housing and Planning and the Secretary of State for Levelling Up, Housing and Communities.

Meetings

The DLUHC Secretariat will meet regularly with Charles Banner KC throughout the course of the review, bringing in officials from Ministry of Justice and the Department for Environment, Food and Rural Affairs as appropriate.

Charles Banner KC will also have a halfway check in with Minister Rowley halfway into the 3 and a half month review period.

Support for the review

A DLUHC Secretariat will provide support to the review.

Duration

The review will begin on 12 February 2024 and report 3 and a half months after the review period is over on the 27 May 2024.

Appendix 2: List of stakeholders who provided information

1. Rt. Hon. Lord Carnwath CVO
2. The Hon. Mr Justice Holgate
3. Samuel Allen, Private Secretary to the Master of the Rolls
4. Sir John Armitt, National Infrastructure Commission
5. Val Armstrong, WSP
6. Clare Barras, National Highways
7. Paul Bellingham, National Highways
8. Richard Benwell, Wildlife & Countryside Link
9. Jan Bessell, Pinsent Masons LLP
10. Pete Bryant, Sizewell C
11. Tom Carpen, Thames Water
12. Edmund Camerer Cuss
13. Emma Clark, Wildlife & Countryside Link
14. Prof. Ben Clifford, UCL
15. Celina Colquhoun, 39 Essex Chambers
16. Carol Day, RSPB
17. Sharon Darcy, Linear Infrastructure Planning Panel
18. Callum Doyle, The Infrastructure Forum
19. Julian Forbes-Laird, FLAC
20. Rob Garden, CMS
21. Ricky Gama, Leigh Day LLP
22. Ian Gilbey, Pinsent Masons LLP
23. Richard Griffiths, Pinsent Masons LLP
24. Rose Grogan, 39 Essex Chambers
25. Richard Guyatt, Womble Bond Dickinson LLP
26. Savannah Harper, Friends of the Earth
27. David Harries, Aaron & Partners
28. Sarah Henderson, Mott McDonald
29. Sarah Holmes, Womble Bond Dickinson LLP
30. Michael Humphreys KC, Francis Taylor Building
31. Kate Jones, National Grid
32. Sally Keith, National Highways
33. Sandy Luk, Marine Conservation Society
34. Sarah Marshall, National Highways
35. Graham Mather, The Infrastructure Forum
36. James Maurici KC, Landmark Chambers
37. Gordon McCreath, Pinsent Masons LLP
38. Prof Janice Morphet, Visiting Professor at UCL
39. Steven Norris, National Infrastructure Project Association (“NIPA”)
40. Robbie Owen, NIPA
41. Stewart Patience, National Highways
42. Lara Peterson, WSP
43. Rebecca Pullinger, The Woodland Trust and Wildlife & Countryside Link
44. Julia Pyke, Sizewell C
45. Leo Quinn, Balfour Beatty
46. Paul Reilly, WSP
47. Philip Ridley, East Suffolk Council
48. Simon Ricketts, Town Legal LLP
49. Bridget Rosewell CBE
50. Nick Simms, National Trust
51. James Strachan KC, 39 Essex Chambers
52. Rosie Sutherland, RSPB
53. Rachel Sykes, Womble Bond Dickinson LLP
54. Niall Toru, Friends of the Earth
55. Paul Tucker KC, Kings Chambers, Chair of the Planning and Environment Bar Association
56. Richard Turney KC, Landmark Chambers
57. Angus Walker, BDB Pitmans LLP
58. David Wolfe KC, Matrix Chambers
59. David Wood, Hogan Lovells
60. Nusrat Zar, Herbert Smith Freehills
61. Further feedback received from unnamed lawyers in the Ministry of Justice, Department for Transport, and Department for Energy Security and Net Zero

Appendix 3: Table of cases

Name of case: R (An Taisce (National trust for Ireland) v. SSECC
DCO: Hinkley Point C New Nuclear Power Station
SoS decision: Consent
SoS date: 19/03/2013
High Court: [2013] EWHC 4161 (Admin)
Court of Appeal: [2014] EWCA Civ 1111
UKSC: PTA refused
Shorthand: An Taisce

Name of case: R (Gate) v. SST
DCO: Heysham to M6 Link Road
SoS decision: Consent
SoS date: 19/03/2013
High Court: [2013] EWHC 2937 (Admin)
Court of Appeal: PTA refused on papers
Shorthand: Gate

Name of case: R (FCC Environment (UK) Ltd v. SSECC
DCO: Rookery South Energy from Waste Generating Station
SoS decision: Consent
SoS date: 22/11/2011 03/2013
High Court: [2014] EWHC 947 (Admin)
Court of Appeal: [2015] EWCA Civ 55
Shorthand: FCC Environment

Name of case: Halite Energy Group Ltd v. SSECC
DCO: Preesall Saltfield Underground Gas Storage
SoS decision: Refuse
SoS date: 09/04/2013
High Court: [2014] EWHC 17 (Admin)
Court of Appeal: CA appeal dismissed by consent
Shorthand: Halite Energy Group

Name of case: Associated British Ports v. SST
DCO: Able Marine Energy Park
SoS decision: Consent
SoS date: 18/12/2013
High Court: CO/5686/2014, refused on papers and not renewed
Shorthand: Associated British Ports

Name of case: R (Thames Blue Green London Plan ) v. SSCLG
DCO: Thames Water Utilities Ltd (Thames Tideway Tunnel) Order 2014
SoS decision: Consent
SoS date: 12/09/2014
High Court: [2015] EWHC 495 (Admin)
Court of Appeal: [2015] EWCA Civ 876
Shorthand: Thames Blue Green London Plan

Name of case: R (Williams) v. SSECC
DCO: Clocaenog Forest Onshore Wind Farm
SoS decision: Consent
SoS date: 12/09/2014
High Court: [2015] EWHC 1202 (Admin)
Court of Appeal: [2015] EWCA Civ 1400
Shorthand: Williams

Name of case: R (Scarisbrick) v. SSCLG
DCO: White Moss Landfill Order
SoS decision: Consent
SoS date: 19/05/2015
High Court: [2016] EWHC 715 (Admin)
Court of Appeal: [2017] EWCA Civ 787
UKSC: PTA refused
Shorthand: Scarisbrick

Name of case: R (Myndd Y Gwynt Ltd) v. SSBEIS
DCO: Mynydd y Gwynt Onshore Wind Farm
SoS decision: Refuse
SoS date: 20/11/2015
High Court: [2016] EWHC 2581 (Admin)
Court of Appeal: [2018] EWCA Civ 231
Shorthand: Myndd Y Gwynt

Name of case: R (John Mars Jones) v. SSBEIS
DCO: North Wales Wind Farms Connection
SoS decision: Consent
SoS date: 28/07/2016
High Court: [2017] EWHC 1111 (Admin)
Shorthand: John Mars Jones

Name of case: R (ClientEarth) v. SSBEIS
DCO: Drax Re-power
SoS decision: Consent
SoS date: 04/10/2019
High Court: [2020] EWHC 1303 (Admin)
Court of Appeal: [2021] EWCA Civ 43
Shorthand: ClientEarth

Name of case: Mayor of London v. SSBEIS
DCO: Riverside Energy Park (EfW)
SoS decision: Consent
SoS date: 09/04/2020
High Court: CO/1876/2020, claim discontinued
Shorthand: Mayor of London

Name of case: R (Pearce) v. SSBEIS
DCO: Norfolk Vanguard Offshore Wind Farm
SoS decision: Consent
SoS date: 01/07/2020
High Court: [2021] EWHC 326 (Admin)
Shorthand: Pearce

Name of case: R (Dawes) v. SST
DCO: Manston Airport
SoS decision: Consent
SoS date: 09/07/2020
High Court: CO/2917/2020, quashed by consent
Shorthand: Dawes 1

Name of case: R (Save Stonehenge World Heritage Site) v. SST
DCO: A303 Amesbury to Berwick Down (Stonehenge)
SoS decision: Consent
SoS date: 12/11/2020
High Court: [2021] EWHC 2161 (Admin)
Shorthand: Stonehenge 1

Name of case: R (Mair Bain) v. SST
DCO: A38 Derby Junctions
SoS decision: Consent
SoS date: 08/01/2021
High Court: CO/642/2021, quashed by consent
Shorthand: Mair Bain 1

Name of case: EFW Group Ltd v. SSBEIS
DCO: Wheelabrator Kemsley Generating Station (K3) and Wheelabrator Kemsley North (WKN) Waste to Energy Facility
SoS decision: Consent 1, Refuse 1
SoS date: 19/02/2021
High Court: [2021] EWHC 2697 (Admin)
Court of Appeal: PTA refused on papers
Shorthand: EFW Group

Name of case: R (Aquind Ltd) v. SSBEIS
DCO: AQUIND interconnector
SoS decision: Refuse
SoS date: 20/01/2022
High Court: [2023] EWHC 98 (Admin)
Shorthand: Aquind

Name of case: R (Substation Action Save East Suffolk Ltd) v. SSBEIS
DCO: East Anglia ONE North Offshore Wind Farm
SoS decision: Consent
SoS date: 31/03/2022
High Court: [2022] EWHC 3177 (Admin)
Court of Appeal: [2024] EWCA Civ 12
UKSC: PTA pending
Shorthand: SASES

Name of case: R (Suffolk Energy Action Solutions SPV) v. SSESNZ
DCO: East Anglia ONE North Offshore Wind Farm
SoS decision: Consent
SoS date: 31/03/2022
High Court: [2023] EWHC 1796 (Admin)
Court of Appeal: [2024] EWCA Civ 277
UKSC: PTA pending
Shorthand: SASES

Name of case: R (Together Against Sizewell C) v. SSESNZ
DCO: Sizewell C Nuclear Generating Station
SoS decision: Consent
SoS date: 20/07/2022
High Court: [2023] EWHC 1526 (Admin)
Court of Appeal: [2023] EWCA Civ 1517
UKSC: PTA pending
Shorthand: TASC

Name of case: R (Boswell) v. SST
DCO: A47 Blofield to North Burlingham
SoS decision: Consent
SoS date: 22/06/2022
High Court: [2023] EWHC 1710 (Admin)
Court of Appeal: [2024] EWCA Civ 145
UKSC: PTA pending
Shorthand: Boswell 1(1)

Name of case: R (Boswell) v. SST
DCO: A47 North Tuddenham to Easton
SoS decision: Consent
SoS date: 12/08/2022
High Court: [2023] EWHC 1710 (Admin)
Court of Appeal: [2024] EWCA Civ 145
UKSC: PTA pending
Shorthand: Boswell 1(2)

Name of case: R (Boswell) v. SST
DCO: A47-A11 Thickthorn Junction
SoS decision: Consent
SoS date: 14/10/2022
High Court: [2023] EWHC 1710 (Admin)
Court of Appeal: [2024] EWCA Civ 145
UKSC: PTA pending
Shorthand: Boswell 1(3)

Name of case: R (CPRE) v. SST
DCO: A57 Link Roads (previously known as Trans Pennine Upgrade Programme)
SoS decision: Consent
SoS date: 16/11/2022
High Court: [2023] EWHC 2917 (Admin)
Shorthand: CPRE

Name of case: R (Transport Action Network) v. SST
DCO: A428 Black Cat to Caxton Gibbet Road Improvement scheme
SoS decision: Consent
SoS date:18/08/2022
High Court: CO/3586/2022 Permission refused on papers and at OPH
Court of Appeal: PTA refused on papers
Shorthand: TAN 1

Name of case: R (Dawes) v. SST
DCO: Manston Airport redetermination
SoS decision: Consent
SoS date: 18/08/2022
High Court: [2023] EWHC 2352 (Admin)
Court of Appeal: [2024] EWCA Civ 560
Shorthand: Dawes 2

Name of case: R (Save Stonehenge World Heritage Site Ltd) v. SST
DCO: A303 Stonehenge
SoS decision: Consent
SoS date: 14/07/2023
High Court: [2024] EWHC 339 (Admin)
Court of Appeal: PTA granted, rolled-up hearing to take place in CA
Shorthand: Stonehenge 2

Name of case: R (Mair Bain) v. SST
DCO: A38 Derby Junctions
SoS decision: Consent
SoS date: 17/08/2023
High Court: AC-2023-BHM-000189, Outstanding
Shorthand: Mair Bain 2

Name of case: R (Boswell) v. SST
DCO: A12 Chelmsford to A120 widening scheme
SoS decision: Consent
SoS date: 12/01/2024
High Court: AC-2024-LON-000626, Outstanding
Shorthand: Boswell 2

Name of case: R (Transport Action Network) v. SST
DCO: A66 Northern Trans-Pennine project
SoS decision: Consent
SoS date: 07/03/2024
High Court: AC-2024-LON-1314, Outstanding
Shorthand: TAN 2

Name of case: R (Biofuelwatch UK) v. SSENZ
DCO: Drax Bioenergy with Carbon Capture and Storage Project
SoS decision: Consent
SoS date: 16/01/2024
High Court: AC-2024-LON-000713, refused on papers and not renewed
Shorthand: Biofuelwatch

Name of case: R (Boswell) v. SSENZ
DCO: Net Zero Teesside
SoS decision: Consent
SoS date: 16/02/2024
High Court: AC-2024-LON-001067, Outstanding
Shorthand: Boswell 3

Name of case: R (Fenland DC) v. SSENZ
DCO: Medworth Energy from Waste Combined Heat and Power Facility
SoS decision: Consent
SoS date: 20/02/2024
High Court: AC-2024-LON-001087, Outstanding
Shorthand: Fenland DC

1. The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”). ↩

2. See also Recommendation 7(3). ↩

3. There are likely to be other knock-on adjustments (for DCO cases) to the various deadlines for the submission of documents by the parties in Court of Appeal proceedings. ↩

4. Terms of Reference. ↩

5. In the vast majority of instances, both of us. ↩

6. See the Civil Justice quarterly statistics and in particular the statistics for the Royal Courts of Justice from 2017-2022. ↩

7. See the Administrative Court Guide (2023) paragraph 9.1.3 and the case-law cited therein. Even where a claim is arguable, permission may be refused on the grounds of a lack of standing, delay, the availability of an alternative remedy, the academic nature of the claim and/or that it is highly likely that the outcome for the claimant would not have been substantially different had the legal error complained of not occurred. ↩

8. See e.g. Maurici, When does the Heightened Mass Energy Permission Test Apply [2015] J.R. 105 and the discussion in R (Plan B Earth) v. Secretary of State for Transport [2020] P.T.S.R. 1446 per Lindblom, Singh and Haddon-Cave LJJ at [262]-[265]. Note also that in R (Plan B Earth) the Court of Appeal declined to apply the Mass Energy standard for permission, in part on the basis that the considerations underlying the Court of Appeal’s judgment in that case fell away in the context of a rolled-up hearing. ↩

9. R (Grace) v. SSHD [2014] 1 W.L.R. 3432 per Maurice Kay LJ at [13]. To be “bound to fail” the application does not have to be repetitive or be made by a vexatious litigant. ↩

10. CPR r. 54.32. ↩

11. Save, in the most exceptional cases, where the Court is asked to exercise its inherent jurisdiction to revisit its order refusing permission. ↩

12. Under limb (a) the appeal must also have a “real prospect of success”: see CPR r. 52.7(2)(a)(i). ↩

13. See paragraph 18 above. ↩

14. Meaning that permission to proceed with the claim for judicial review should be refused. ↩

15. Meaning that permission should be granted, but the claim should be dismissed. ↩

16. Meaning that permission should be granted and the claim should be allowed. ↩

17. National Highways’ application for the Lower Thames Crossing DCO is said to be the longest ever at over 350,000 pages. See e.g. City AM’s report Lower Thames Crossing Planning Application becomes UK’s longest ever – at more than 350,000 pages, and costing almost £300m. ↩

18. This was a concern raised by practitioners when the Planning Act was introduced: see Maurici Judicial Review Under the Planning Act 2008 (2009) JPL 4, 446-451. ↩

19. Tesco Stores Ltd v. Dundee City Council [2012] P.T.S.R. 983 per Lord Reed JSC at [17]-[22]. ↩

20. See e.g. St Modwen Developments v. SSCLG [2018] P.T.S.R. 746 per Lindblom LJ at [6(3)], Stonehenge 1 per Holgate J at paragraph 1 of the Appendix. ↩

21. I have excluded from this sample Millstone v. SSBEIS CO/3447/2019 which concerned, not the grant of a DCO under s. 118 2008 Act, but the refusal to withdraw one once granted. ↩

22. Those brought against the refusal of a DCO are Halite Energy Group, Myndd Y Gwynt, EFW Group Ltd and Aquind. ↩

23. Pearce, Dawes 1, Stonehenge 1, Mair Bain 1. ↩

24. Dawes 1, Mair Bain 1. ↩

25. TAN 2, Boswell 3 and Fenland DC. Boswell 3 has been sent to a rolled-up hearing. ↩

26. FCC Environment, John Mars Jones, ClientEarth, Mayor of London, Pearce, Dawes 1, SASES. ↩

27. Associated British Ports, Scarisbrick, SEASS, TASC, Boswell 1(1), Boswell 1(2), Dawes 2, TAN 1, Mair Bain 2, Boswell 2, Biofuelwatch. ↩

28. Thames Blue Green London Plan and Boswell 1(3). ↩

29. An Taisce, Gate, Williams, Stonehenge 1, CPRE, and Stonehenge 2. Boswell 3 has now also been sent to a rolled-up hearing. ↩

30. Mair Bain 1. ↩

31. Scarisbrick, SEASS, and TAN1. ↩

32. TASC. ↩

33. Boswell 1(1), Boswell 1(2), Dawes 2, and Mair Bain 2. ↩

34. Boswell 2. ↩

35. Associated British Ports, Biofuelwatch. ↩

36. Thames Blue Green London Plan. ↩

37. Boswell 1(3). ↩

38. Noting also that Boswell 3 has been sent to a rolled-up hearing but that has not taken place at the time of writing. ↩

39. Stonehenge 1, CPRE on its alternative case. ↩

40. An Taisce, Gate, Williams, TASC, and Stonehenge 2. I note that for An Taisce and Gate the judgments are not entirely clear on whether (i) permission was refused or (ii) permission was granted but the claim dismissed, but in the Court of Appeal the matter was treated as an appeal against a refusal to grant permission for judicial review. CPRE was refused permission on its primary case. ↩

41. SEASS. ↩

42. An Taisce, Scarisbrick, TASC, Stonehenge 2. ↩

43. Gate, Thames Blue Green London Plan, TAN 1, Williams. ↩

44. So e.g. where a case was settled by consent after, say, permission on the papers, I have taken its progress up to papers stage into account, but not thereafter. ↩

45. The claims excluded are An Taisce, Gate, FCC Environment, Hailite Energy Group Ltd and Associated British Ports. ↩

46. One of the claims was determined faster at oral hearing, at 10 weeks. However, this was Boswell 1(3) and was therefore linked to Boswell 1(1) and Boswell 1(2) which were heard at the same OPH. ↩

47. SEASS, which, unusually, obtained permission to bring the JR from the Court of Appeal and then returned to the High Court. The next longest period was 42 weeks. ↩

48. SEASS again. The next longest was 51. ↩

49. Subject to the same caveat regarding Boswell 1(3). ↩

50. SEASS. The next longest is 40 weeks. ↩

51. Reduced to 37 weeks if SEASS is removed from the sample. ↩

52. Reduced to 38 weeks if SEASS is removed from the sample. ↩

53. SEASS. If that is removed the next longest is 51 weeks. ↩

54. These timescales will need to be updated if my recommendation to do away with the paper permission stage is taken up (Recommendation 3). ↩

55. i.e. An Taisce, Gate, FCC, Hailute Energy Group Ltd and Associated British Ports Ltd. ↩

56. It used to be the case that an appellant for permission to appeal to the Court of Appeal could renew as of right an unsuccessful PTA application orally. That is no longer the case. ↩

57. Table 4.2 of the statistics for the Royal Courts of Justice from 2017-2022. ↩

58. 17 cases, as set out in Appendix 3. ↩

59. 5 weeks is the fastest I have found for cases where I have both the dated application for permission and the order. There are two other cases where I have had to assume the PTA date. In those cases the times are 2 weeks and 3 weeks for a permission decision. ↩

60. The 49 week case appears to be a dramatic outlier. I am not clear for the explanation for it. 18 weeks is the next longest. ↩

61. This is subject to the same caveat as fn 60, above. ↩

62. This is an outlier. The next longest is 48. ↩

63. Again this is an outlier, the next longest is 52. ↩

64. I note for example the Supreme Court’s order refused PTA in the TASC case was dated 8 May 2024 but was received on 13 May 2024. ↩

65. As an example, albeit outside of the NSIP JR context, one respondent indicated that a condition imposed on a Marine Licence requiring a two-month delay to works for environmental reasons would have led to a two year delay in delivering the final project at a cost running to the tens, if not hundreds, of millions of pounds. ↩

66. Where, for example, there is global competition for particular supply chain parts or workers months of disruption can occur if a developer misses its ‘window’. ↩

67. CPR r. 46.23-46.28. ↩

68. The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. ↩

69. Ministry of Justice Judicial Review: Proposals for further reform (Sept 2013), Cm 8703 paras. 61-62. ↩

70. ACCC/C/2008/27 (UK), at [45]. ↩

71. ACCC/C/2011/57 (Denmark), at [44]. ↩

72. ACCC/C/2004/6 (Kazakhstan), at [28]-[29]. ↩

73. ACCC/C/2013/81 (Sweden), at [96]. ↩

74. UKSC 2022/0064, on appeal from [2022] P.T.S.R. 958. ↩

75. Excluding cases in relation to which a rolled-up hearing is sought and/or directed. ↩

76. See also Recommendation 7(3). ↩

77. See e.g. Sharma v. Brown-Antoine [2007] 1 W.L.R. 780 per Lord Bingham at [14(4)]. ↩

78. I have not been provided with confirmation of the precise number but I understand it to be over 20. ↩

79. Minister unveils details of specialist planning court (Planning Resource). ↩

80. These timescales will need to be updated if my recommendation to do away with the paper permission stage is taken up (Recommendation 3). ↩

81. Independent review of planning appeal inquiries: report. ↩

82. There is likely to be a consequent need to require any reply by the Claimant to be filed and served in good time prior to the CMC. ↩

83. All of these matters came up in our discussions with stakeholders as matters in relation to which timely consideration would help streamline the JR process. ↩

84. Where the Court of Appeal grants permission to apply for JR, the case management discussion could take place either in the Court of Appeal (if it grants permission at a hearing and/or keeps it) or pursuant to a 2nd CMC in the High Court (if the Court of Appeal grants permission on the papers and remits the matter to the High Court). ↩

85. There is currently some discussion of directions at the end of permission hearings when permission is granted, but this tends to be perfunctory and without the benefit of prior written position statements. ↩

86. Pursuant to the Duty of Candour, Defendants in judicial review proceedings have an obligation to ensure the information relevant to the issues in the claim is drawn to the Court’s attention, whether it supports or undermines their case: Administrative Court Guide (2023) para 15.2. This applies at all stages, but what it requires varies depending on the stage of proceedings reached: Administrative Court Guide (2023) section 15.3. This duty is not necessarily the same as a duty to disclose documents. The test for disclosure of documents is whether it is necessary to resolve the matter fairly and justly: see, in the planning context, Friends of the Earth Ltd v. SSLUHC [2023] EWHC 3255 (KB) per Sir Duncan Ouseley at [15]. In a challenge to a decision to make a DCO, ordinarily the only documents required will be the Decision Letter, Examining Authority’s report and any relevant documents before the Examining Authority of Secretary of State: Stonehenge 2 per Holgate J at [154]-[158]. ↩

87. Above, paragraph 8 and the statistics cited there. ↩

88. There are likely to be other knock-on adjustments (for DCO cases) to the various deadlines for the submission of documents by the parties in Court of Appeal proceedings. ↩

89. A recent consultation on changes to the rules closed on 17 May 2024: Rules of The Court - The Supreme Court. ↩

90. See Supreme Court Practice Direction 3 para 3.3.3. ↩

91. Planning Inspectorate statistical release 25 April 2024. ↩

92. This would require amendments to the 2008 Act. ↩

93. See paragraph 18 above. ↩