Changes to planning rules outlined in the Labour Government’s Plan for Change will reduce the number of times major infrastructure projects can challenged in court tackling the culture of NIMBY-ism says Prime Minister Sir Kier Starmer.
The government have revealed 58% of all decisions on major infrastructure, like nuclear plants, trainlines and windfarms, are subject to judicial review causing extensive delays and significant costs borne by tax payers.
Current rules means cases can be taken to court, sometimes deliberately to effect delay, up to three times. The new rules will reduce that to one tackling what the government describe as “pushing back against a challenge culture where small pressure groups use the courts to obstruct decisions taken in the national interest.”
Prime Minister Sir Keir Starmer said:
“For too long, blockers have had the upper hand in legal challenges – using our court processes to frustrate growth. We’re putting an end to this challenge culture by taking on the NIMBYs and a broken system that has slowed down our progress as a nation. This is the government’s Plan for Change in action – taking the brakes off Britain by reforming the planning system so it is pro-growth and pro-infrastructure.
“The current first attempt – known as the paper permission stage – will be scrapped. And primary legislation will be changed so that where a judge in an oral hearing at the High Court deems the case Totally Without Merit, it will not be possible to ask the Court of Appeal to reconsider. To ensure ongoing access to justice, a request to appeal second attempt will be allowed for other cases.”
Lord Banner KC, author of the Independent review into legal challenges against Nationally Significant Infrastructure Projects, added:
“My review concluded that there is a clear case for streamlining judicial reviews on consenting decisions for nationally significant infrastructure projects, given that delays to these projects cause real detriment to the public interest. In the course of my review, I saw broad consensus from claimants to scheme promoters that a quicker system of justice would be in their interests, provided that cases can still be tried fairly.”
“I am therefore pleased to see the government acting on the back of my review. In particular, reducing the number of permission attempts to one for truly hopeless cases should weed out the worst offenders, without risking inadvertent delays because judges choose to err on the side of caution. I look forward to seeing these changes help to deliver a step change in the pace of infrastructure delivery in the months and years ahead.”
The Law Society of England and Wales struck a balanced tone as president Richard Atkinson said
“It is important that major infrastructure projects are able to progress smoothly to deliver public benefit and provide certainty to those involved in or affected by the project. However, any reforms must balance efficiency with maintaining access to justice. Judicial review plays a vital role in upholding the rule of law by ensuring that decisions on major infrastructure projects are made in accordance with the law.”
“Removing the paper permission stage for these judicial reviews could increase both the cost and length of permission hearings. We believe this would benefit from further analysis before reforms are taken forward. The experience of our members is that making permission decisions on the papers saves costs and resource for both parties and the courts. In contrast, the preparation required for an oral hearing can be extensive, and there are additional costs to attending a hearing.
“It is possible that the certainty of higher costs – especially so early in the case, before permission is even granted – could discourage a claimant to the extent that it raises concerns for access to justice. Requiring oral hearings for all permission applications may also lengthen these proceedings, as it prevents those that could be easily dealt with from progressing more quickly.”
Reaction from property professionals welcomed the move. Tom Barton, partner in the Planning team at Mishcon de Reya, said:
“Any reforms which will speed up the delivery of major projects are welcome. While the right to challenge is sacrosanct, it can certainly be argued that at present the law is tilted too far in favour of those wishing to stall development. It is fantastic to see Lord Banner using his knowledge and insight as a practising planning lawyer to inform and drive change through his position in the Lords.
“As a country we desperately need to take action to deliver major projects to drive growth – these reforms would be a step towards doing so.”
Meanwhile a new Nature Restoration Fund will change the way funding for the mitigation of, or compensation for environmental harm associated with infrastructure project is delivered. Under current rules, developers are required to identify and meet environmental obligations, typically on a project-by-project basis, before planning permission is granted. The fund will pool contributions from developers to fund larger interventions say the government.
Environment Secretary Steve Reed said:
“Nature and development have been unnecessarily pitted against each other for too long. This has blocked economic growth but done nothing for nature’s recovery. Communities and the environment deserve better than this broken status-quo.”
“As part of the Government’s Plan for Change, these reforms will unblock infrastructure projects while protecting the natural environment we all depend on. We can now look forward to 150 key infrastructure projects going ahead within the next few years while also providing more funding to protect and restore nature.”
Deputy Prime Minister and Secretary of State for Housing Angela Rayner added:
“We have inherited a failing system that has seen vital infrastructure being held up year after year, while witnessing the devastating decline of our natural environment, precious wildlife, and protected species. That’s why we are taking a new approach to reversing this decline, striking the right balance so developers can meet their environmental obligations at pace while removing needless barriers to build the infrastructure that local communities are crying out for.”
“This government’s Plan for Change will get Britain building and deliver win-win results for both development and the environment, which will not only guarantee a comeback for nature recovery but also higher living standards, more well-paying jobs, and greater prosperity for all.”
Welcoming the move Alison Ogley, Partner at Freeths said:
“This is a potential game changer addressing the current inertia in the system, providing a solution that is more effective than individual developers trying to address environmental improvements on a project by project basis. A central fund will be better placed to tackle environmental improvements on a strategic level. The devil as ever will be in the detail. One of the major issues will be the efficient and effective operation of the central fund – it will need to be properly resourced and accountable to both developers who pay into it and other stakeholders”.
But countryside charity CPRE responded saying
“The government should bring people together to tackle the climate emergency, not set them against each other with tired, divisive language. “Campaigners bringing legal challenges only do so because they think the law is being broken. Allowing judges to block these concerns as ‘totally without merit’ is anti-democratic and, when it comes to the climate crisis, dangerously short-sighted.
said Roger Mortlock, CPRE chief executive, adding
“Climate change is the single biggest threat to the countryside. It’s clear we’ve got to build a clean energy grid fit for the future but the best way to achieve this is with local communities involved from the start. “The UK could learn from countries such as Ireland and Australia, which involve communities in decision making from the beginning, reducing the need for lengthy and expensive legal processes without eroding democracy. For everyone’s sake, we should be building consensus, not dismissing people with real ideas and solutions as “blockers”.”