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Reforming Judicial Review to get Britain Building

Reforming Judicial Review to get Britain Building

Judicial Reviews are being used to slow down and block major building projects. Reforming them could get Britain building again.

Authors

Gabriel Moberg, David Lawrence

Date

October 16, 2024

October 16, 2024

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Reforming Judicial Review to get Britain Building

04-04-23
ukdayone - - - blog
©2024

Judicial Reviews are being used to slow down and block major building projects. Reforming them could get Britain building again.

Authors

Gabriel Moberg, David Lawrence

Share

Copy Link

Date

October 16, 2024

Summary

  • The Prime Minister has committed to “getting rid” of regulation which prevents investment, and explicitly cited the way that Judicial Reviews (JRs) are being used to slow down and block major building projects. 

  • JRs pose a major challenge to the new government, which wants to build 1.5 million homes over 5 years, decarbonise the energy sector by 2030, enable investment in data centres and get Britain moving again through transport projects. 

  • Currently, the threshold to challenging planning decisions is too low. Permissive standing rules, which govern who can instigate JRs, mean that individuals or organisations need only to demonstrate a legitimate interest in a case to challenge it. They do not need to show that they are directly affected.

  • Legal challenges need not be successful to be disruptive. Even where courts ultimately rule in favour of planning decisions, pausing development pending the outcome of a JR is costly in terms of time and money, creating uncertainty for developers.

  • The new government must raise the bar to challenge planning decisions and weed out frivolous cases if it wants to enable investment and deliver on its building targets. This briefing sets out some concrete reforms to the JR system to ensure the Government can deliver its growth and clean power missions.

The Challenge

Judicial reviews provide an important means for challenging and scrutinising public decisions, including the granting of planning permission for infrastructure. However, the rules governing who can challenge planning decisions in the UK and how easily they can do so have failed to keep pace with an increasing use of JRs to disrupt and delay vital infrastructure developments. 

The result is that building infrastructure has become more difficult and more costly in the UK than in many other advanced economies. Evidence from a BCG study of 1,600 projects suggests that the UK’s infrastructure costs are higher than those of Germany, France and the Eurozone. and projects take longer to complete than in the Eurozone, France, US or Australia. By reforming the rules around how JRs of planning decisions are conducted, the UK government can make the right to challenge decisions more proportionate to the need to deliver infrastructure.

Speaking at Energy UK’s annual conference in September, the Secretary of State for Energy Security and Net Zero said that the new government would “take on the blockers, the delayers, the obstructionists” in seeking to build new infrastructure. And there has been progress. The new government has set out positive reforms to the National Planning Policy Framework (NPPF) that would increase the presumption in favour of building infrastructure and make it harder to overturn a planning decision through Judicial Review (JRs). Similarly, the government has announced a plan to raise the threshold for the Nationally Significant Infrastructure Project (NSIP) designation for wind and solar farms from 50 MW installed capacity to 100 MW and 150 MW respectively. This will also help to address the problem of developers seeking to avoid the NSIP process by artificially limiting projects to 49.9 MW.

Neither of these measures, however, go far enough: they do not address the problem of delays caused by JRs. The reformed NPPF, for instance, might make it more difficult to ultimately overturn a planning decision but will do little to address the disruption and delay caused by delaying development pending the result of a JR process. Regardless of outcome, examining a JR can often take between 9 and 12 months, and closer to two years for more complex cases. If factors such as the impact of this delay on the time of year when construction can take place are included, the practical delay time is likely greater.

Since 2012, the percentage of NSIPs undergoing JR has increased from 10% to 58% due to ‘online crowdfunding and maturing organisational opposition’ to infrastructure. It is not just specific projects which have been challenged but national infrastructure strategies and policies too. Both the government’s National Networks National Policy Statement and Road Investment Strategy 2 have been challenged. Amongst the specific infrastructure projects which have been delayed or blocked by JRs include, notable examples include: 

Figure 1: Map of major UK infrastructure and housing projects delayed or blocked by JRs

A428 Black Cat to Caxton Gibbet: this £950 million investment to create a new 10 mile dual carriageway between Black Cat roundabout and Caxton Gibbet was projected to improve journeys between Milton Keynes, Bedford and Cambridge. The project was delayed for more than a year pending legal challenges. The campaign group Transport Action Network first lost its challenge to the planning decision before the High Court in February 2023 before unsuccessfully attempting to appeal the case again in May 2023. 

Aberdeen Western Peripheral Route, a major road project in Scotland intended to improve traffic flow around Aberdeen, faced a JR from environmental groups. The JR caused delays, but ultimately the courts ruled in favour of the project. The AWPR was eventually completed, albeit with significant delays and cost overruns.

Coventry Gateway was a large-scale development proposal including business parks and infrastructure improvements intended to boost the local economy. Environmental groups and local residents opposed the project, leading to a JR. The challenge focused on the environmental impact, particularly concerning greenbelt land and potential damage to local wildlife. The JR delayed the project significantly, and after prolonged legal and planning battles, the project was eventually scrapped in its original form. 

HS2, the proposed high-speed railway linking London, Birmingham and (originally) Manchester and Leeds, has faced multiple JRs from environmental and local groups, focusing on the project’s environmental impact and consultation procedure. Although courts have generally found in favour of the government, these legal challenges have contributed to delays, increased costs and the eventual scaling-back of the project.

Norfolk Vanguard, an offshore wind project off the coast of East Anglia that would have provided enough energy to power 1.95 million homes per year through installation of between 90 and 156 wind turbines. Permission for the project was challenged by a single private individual, who succeeded in delaying the project by 2 years.

NW Cambridge Development (also known as Eddington), a large housing and mixed-use development by the University of Cambridge, intended to provide housing for university staff and students as well as the general public. A JR was brought by local residents and environmental groups concerned about the impact on local infrastructure, traffic, and the environment. The JR delayed the project’s progress, leading to further consultations and revisions. The development eventually moved forward, but the legal challenges contributed to delays and additional costs.

Thames Tideway Tunnel, a major infrastructure project designed to prevent sewage overflow into the River Thames, faced a JR related to the process for selection of the site for construction works. The courts ultimately ruled in favour of the project, but the JR led to significant delays.

The Opportunity

Getting Britain building can drive economic growth

By bringing the cost of infrastructure development in line with other comparable European countries, the UK government could unlock economic growth. From improving on lagging productivity and social mobility outside of London to addressing the fact that almost half of UK manufacturers believe decaying infrastructure is hurting access to labour and skills, the case for an industrial strategy that places capital spending on infrastructure front and centre is clear. 

For example, the government could capitalise on the more than 275 GW worth of renewables projects awaiting connection on the Transmission Entry Capacity register through removing planning obstacles to developing new transmission, delivering cheaper and more secure energy to the UK public. Not only would the UK save itself from spending between £1.5 billion and £3 billion per year on constraint costs by 2030, but it would benefit too - from green job creation and the economic growth that results from cheaper energy.

In many ways the UK is fortunate. With both the technical capacity and the private sector financing needed to deliver on its ambition largely in place, the UK is well positioned to gain from unleashing the economic gains of a building boom. An outdated planning system that has increasingly allowed small highly-opposed groups an outsized disruption power should not be allowed to continue preventing and delaying that building from taking place when a majority of the British public want to get Britain building again.

The UK can tighten JRs without undermining access to justice

There is an obligation to protect a public right to participation in decisions with environmental effects under the Aarhus Convention. In the UK, this protection has taken the form of cost caps for litigants challenging environmental decisions. Under UK interpretation of the Convention, the adverse costs faced by unsuccessful challengers are capped at £5,000 for individuals and £10,000 in all other cases.

While this measure has fulfilled a vital role in protecting individuals from having prohibitive costs imposed on them should their challenges to planning decisions fail, it has failed to keep pace with the challenge posed by the rise of online crowdfunding. Through maturing organisational opposition and online crowdfunding, the organisations and individuals bringing legal challenges have become increasingly well-resourced while the cost associated with bringing cases has remained static. 

Combined with permissive standing rules that allow individuals and organisations which are not directly affected by planning decisions to bring cases, the low cost of losing a challenge has led to a plethora of frivolous cases. 

Under the current system there are two types of projects: Nationally Significant Infrastructure Projects (NSIPs) and non-significant projects. The thresholds vary and are in the process of being updated but generally relate to size. For example, a 30 MW wind farm is deemed "non significant" and a 150 MW wind farm is "significant". 

As Figure 2 demonstrates, a low proportion of JRs brought against the government on town and country planning are successful (3.9% for non-significant developments and 10.2% for significant developments), and those that are ultimately heard are more likely to be found in favour of the government. To make matters worse, challenges are often repeatedly brought on the same or similar grounds where the likelihood of success is low and the purpose of the challenge is simply to disrupt through delay.

Figure 2: Most JRs brought against the government on town and country planning are unsuccessful

Source: Ministry of Justice, Judicial Review Interactive Data Tool (accessed August 2024)

Beyond permissive standing rules and inappropriate cost caps, other factors including environmental legislation, procedural grounds and the precautionary principle make challenging planning decisions overly complex and time-consuming to resolve.

Environmental legislation: The UK is subject to a complex web of environmental regulations, including those derived from EU law, like the Habitats Directive, and national laws such as the Environmental Protection Act 1990 and the Wildlife and Countryside Act 1981. These laws often require thorough assessments of environmental impacts (e.g., Environmental Impact Assessments or EIAs). If these assessments are perceived as inadequate, it provides grounds for JR. Ambiguities surrounding the application of EIAs mean that developers can face challenges even where long and extensive EIAs have been conducted. For example, the Norfolk Vanguard offshore wind farm was successfully challenged on the ground that its environmental impact assessment hadn’t taken into account the combined effect of the wind farm with a separate development.

Plan of Action

The new government should seek to reduce the number and impact of JRs on projects. This could be done in several ways, including:

  1. Reforming standing rules: The government should narrow the rules on standing from the current threshold of demonstrating a “legitimate interest”. Instead, only individuals and groups that can demonstrate a direct and substantial interest in a development should be permitted to bring a JR.  This would likely reduce the number of environmental JRs brought by NGOs or interest groups while protecting the right of those impacted by potential developments to access justice. 

  1. Introducing higher costs for unsuccessful JRs might also deter frivolous challenges. This could be done through increasing cost thresholds depending on the Court (e.g., the threshold for the High Court could remain, but the costs protection for claims in the Court of Appeal which have been dismissed by the High Court could be reduced). Any increase in costs would need to be balanced to avoid limiting access to justice for legitimate concerns. One such balance could involve capping costs at the amount raised where crowdfunding has been used.

  1. Automatic expedition of infrastructure cases through special planning courts: There should be an automatic expedition of legal challenges to major infrastructure projects. At present, a separate application is required. This could be achieved through an amendment to the Civil Procedure Rules or through the creation of a specialised court or tribunal for planning and environmental cases. This could speed up the resolution of disputes by using streamlined procedures, prioritising swift decisions to reduce delays caused by JRs. There is precedent here in the use of specialised courts to handle intellectual property litigation and immigration cases.


  2. Removing oral renewal for planning legal challenges: The Government should remove the ability to ‘orally renew’ a claim which has been dismissed by the High Court. For context, where the High Court dismisses a challenge, before appealing to the Court of Appeal, a litigant has a second opportunity to renew their challenge. There is a good reason for excluding planning decisions from this arcane route: success rates are low (only 6/56 cases refused at first hearing were successfully renewed in 2023), and in the case of major infrastructure, they follow a robust 6 month examination process. 

  1. Simplifying environmental legislation & providing greater clarity: Already Environmental Outcomes Reports (EORs) are replacing Environmental Impact Assessments (EIAs). However, even clearer and more precise guidelines for conducting Environmental Impact Assessments could also help reduce the number of JRs based on procedural grounds. For example, the Norfolk Vanguard project was challenged on the ground that the undertaken EIAs did not take account of cumulative impacts arising from a separate development. By making clear the scope of EIAs needed, the government could reduce the amount of EIA-related litigation and better standardise EIA requirements.


  2. Tightening time limits: Tightening the time limits within which a JR can be brought could reduce delays. Currently, claimants generally have three months from the decision to bring a JR, but this period could be shortened for planning decisions. In the case of planning decisions, there is often a six week post-decision period during which the decision to grant planning can be legally challenged. This window to challenge a decision should be brought down to 28 days.

  1. Filtering out frivolous cases by requiring statutory declarations have a more than likely chance of success where the cost cap is applied:  High Court decisions can be challenged where there is either a realistic prospect of success or where there is some other fundamental reason why the challenge should be heard. The latter could be removed from the Civil Procedure Rules in cases where the litigant is already protected by the Aarhus cost caps. Similarly, barristers in those cases could be required to sign a statutory declaration that there is a more than likely chance of success, and that a claim does not reflect one which has been previously dismissed. This latter proposal would help deal with the problem of many challenges repeatedly brought on the same grounds.

FAQs

1. What is the UK’s judicial review process? 

Judicial review (JR) in the UK is a legal process where individuals, organisations, or groups can challenge the lawfulness of decisions or actions taken by public bodies, including local authorities, government departments, and regulatory agencies. The process does not question the merits of the decision itself but instead examines whether the decision-making process was carried out properly, in line with the law, and with regard to principles like fairness, transparency, and reasonableness. Judicial reviews ensure that public bodies do not exceed their powers or fail to meet their legal duties, maintaining accountability in the use of public authority.

In the context of planning permission for infrastructure, housing, and energy projects, judicial review can be used by communities and stakeholders to challenge planning permission processes. When decisions on planning applications are made, JRs allow individuals or groups to contest those decisions if they believe due process has not been followed, or relevant considerations have been overlooked. If the challenge is accepted, this is then assessed by a judge. While this mechanism is important for upholding environmental standards, local community interests, and fair governance, it can also lead to delays and uncertainty for large-scale projects, even where challenges are unsuccessful. 

2. How does the UK system differ from other countries?

Without attempting a comprehensive comparative analysis of other countries’ planning systems, there are some examples from elsewhere that the UK could learn from. 

Acknowledgements 

We would like to thank Mustafa Latif-Aramesh, Sam Dumitriu and John Myers for their help with this piece.

Gabriel Moberg

Gabriel Moberg

Gabriel Moberg is the Chief Operating Officer at the Green Grids Initiative. Gabriel was recently a Fulbright scholar at the Harvard Kennedy School of Government where he researched and published on energy policy at the Mossavar-Rahmani Center for Business and Government and the Salata Institute for Climate and Sustainability. His views are his own.

David Lawrence

David Lawrence

David Lawrence is the co-director of the UK Day One Project. He has worked in Westminster policy for the last decade, including at Chatham House, in Parliament, and as a parliamentary candidate. He holds degrees from the University of Oxford and the London School of Economics.

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Introduction
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