Judicial review and infrastructure: government proposes new protections for NSIPs

Following the Banner Review and its recommendations, which highlighted the adverse effect that overuse of judicial review can have on the timely delivery of infrastructure projects, the government appears to be preparing legislation to establish new consenting mechanisms. The reforms, as detailed in this Policy Paper, are intended to ensure that Nationally Significant Infrastructure Projects (NSIPs) are not hindered by unnecessary delay caused by unmeritorious legal challenge.

Background

This announcement follows earlier reforms to the consenting process for NSIPs through the implementation of the Planning and Infrastructure Act 2025 (the Act). The Act also reduced the number of attempts a claimant can make to bring a legal challenge. The government has also worked with the judiciary to amend the Civil Procedure Rules to tighten procedural requirements for NSIP cases.

Despite this, NSIPs remain vulnerable to unmeritorious legal challenges and the delays that can result from them. Recently Richard Tice, Reform UK’s deputy leader, indicated that the party could seek to use judicial review to delay major electricity grid projects^[1], highlighting the continued potential for legal challenge to be used strategically in relation to nationally significant infrastructure.

The government now seeks to go further by introducing two optional mechanisms within the existing consenting process to protect NSIPs from avoidable delay caused by judicial review.

The Proposed Reforms

The proposals are twofold. The first, a parliamentary authorisation mechanism, would remove the threat of judicial review entirely, except in cases brought on human rights grounds, for projects designated as being of Critical National Importance. The second, a challenge window mechanism, would introduce a structured period for challenge across all NSIPs, with a view to avoiding protracted judicial review proceedings.

Parliamentary Authorisation Mechanism

• This route would be limited to energy projects selected by the Energy Secretary, reflecting the UK's energy security needs and its commitment to achieving net zero.
• If a project is designated as being of Critical National Importance by the Energy Secretary, and that designation is endorsed by the House of Commons, the resulting consent is intended to attract protection broadly comparable to that enjoyed by primary legislation.
• The usual process for submitting and examining the Development Consent Order (DCO) would still run its course. Once complete, however, the final decision would return to the House of Commons for a further vote.
• If approved, the DCO would assume a separate statutory status under the enabling legislation, similar in effect to an Act of Parliament. On that basis, it would not be open to judicial review except on human rights grounds.

Challenge Window Mechanism

• This mechanism would be available for all NSIPs.
• Following the existing process, the relevant Secretary of State would issue a draft decision and a fixed period would then open for judicial review claims to be brought, allowing those points to be considered and addressed in the DCO before it is issued.
• Once the final DCO is issued, where any judicial reviews are raised on the same grounds, the courts would have a clearer basis to refuse permission or relief, making use of the provisions already introduced via the Act on meritless claims. 
• Further protection would be afforded by requiring the courts to refuse permission for a judicial review raising points that were not put forward during the consenting process or within the challenge window.

Next Steps

These proposals signal a significant further step in the government’s attempt to limit delay to major infrastructure delivery. The parliamentary consenting proposal is particularly constitutionally significant. Much will depend on how that proposal is framed in the underlying legislation, and whether it can withstand scrutiny from a public law perspective.

The government intends to engage with the judiciary, developers, investors, legal practitioners, local authorities and affected communities as the policy is taken forward.

Article authored by Esme Manclark. 

^[1] Reform UK Threatens Legal Action to Delay National Grid Power Projects - Bloomberg