Independent review into legal challenges against Nationally Significant Infrastructure Projects

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 .

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

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.

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.

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.

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.

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.

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.

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 .

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).