An independent report by one of the nation’s top legal minds has proposed a new ‘roadmap’ to reduce delays to Nationally Significant Infrastructure Projects (NSIPs).
‘The Review of Legal Challenges to Nationally Significant Infrastructure Projects’, published by leading planning barrister Lord Charles Banner KC, sets out ten recommendations to government to reduce barriers to development and overcome challenges more quickly.
The review suggests making the judicial review process for NSIPs simpler to reduce the amount of time it takes these cases to move through the courts, as well as improving the publication of data on NSIP case progress.
The report notes that while only a quarter of decisions to grant a Development Consent Order (DCO) for a project are subject to judicial review—of which only four were overturned—the national importance of these projects means “delays resulting from unsuccessful challenges are a clear detriment to the public interest”. As such, streamlining the judicial review process for NSIPs is now seen as a priority.
One recommendation to streamline the judicial review system is to reduce the number of attempts claimants are able to make in securing permission to launch a judicial review. Currently, prospective claimants can request permission to launch a judicial review in three ways; first, in writing to the High Court, then at an oral permission hearing if permission is refused at a written stage, and finally before the court of appeal.
The report argues that fairness in the system could still be maintained if the number of allowable attempts are reduced to two; written permission and then the court of appeal. This could trim a number of weeks or months off the amount of time that projects are held up in the review system.
Another recommendation is that the threshold for likelihood of success in court be raised, with only the most likely claims to succeed reaching a full hearing. However, this recommendation was deemed to need further consideration by the government.
Following the publication of the report, housing and planning minister Matthew Pennycook said: “Building new and improved national infrastructure is essential to delivering the government’s economic growth and clean power missions and we must have planning system fit to deliver it.
“With demands on the consenting process having changed considerably over recent years, I’m grateful to Lord Banner for reviewing how we might speed up the delivery of major infrastructure projects. The government will carefully review his recommendations and consider further proposals before determining how we will further improve the NSIP regime”
Legal woes for NSIPs
The news comes as a major solar farm, granted a DCO as part of newly-appointed energy secretary Ed Miliband’s blitz of DCO grants in his first weeks in office, has recently been the subject of a significant legal challenge.
As reported by our sister publication Solar Power Portal, developer Sunnica faced judicial proceedings from Suffolk County Council concerning its 500MW solar and storage development, with the council arguing that the developer and the energy secretary had failed to consider the cost impact on the local authority. However, this challenge was dropped by the council due to the cost of the proceedings.
Removing roadblocks to renewable energy developments is likely to be a popular move. A recent poll found that 61% of those surveyed would be “frustrated” if a legal challenge halted the development of a local renewable energy project.
