Nationally Significant Infrastructure Projects and the Planning and Infrastructure Bill: A move in the wrong direction

Abstract

The Planning and Infrastructure Bill aims to speed up the planning process and associated decision-making. Part 1 of the Bill introduces changes in the context of Nationally Significant Infrastructure Projects (NSIPs) that warrant attention. First, the Bill removes the legal duty to consult at the pre-application stage of the NSIP development consent process. In particular it removes the public's legal right to participate at this stage. Second, it makes changes to the judicial review process which raise questions over the balance between the swift administration of justice and access to justice. This commentary argues that combined the proposed reforms reflect a move that supports a rhetoric of ‘challenge culture’. ¹ This rhetoric positions procedural and administrative law as an obstacle to infrastructure development and is something we should not ignore.

Introduction

The Planning and Infrastructure Bill was introduced to the Commons on the 11^th of March 2025. At the time of writing, the Bill was progressing through the Committee stage in the House of Lords. ² The Bill aims to speed up the planning process, increase housing and infrastructure delivery and modernise local planning authorities. Much attention has focussed on Part 3 of the Bill, and the proposed reforms relating to development and nature recovery. This is an area of notable concern with the Office for Environmental Protection (OEP) branding the Bill's original reforms as environmentally regressive and making clear that despite welcome amendments, the Bill still offers reduced environmental protections. ³ However, less attention has been paid to Part 1 of the Bill and the changes relating to Nationally Significant Infrastructure Projects (NSIPs). This commentary will focus on two key areas of change that are proposed within Part 1 of the Bill. First, the proposed removal of the legal duty to consult, in particular the duty to consult the public, at the pre-application stage of the NSIP process. Second, the proposed changes to legal challenges and the judicial review of NSIP consents.

This commentary will begin by outlining the key changes proposed to pre-application consultation and judicial review by Part 1 of the Bill, before moving on to discuss the key issues posed by the reforms. It argues that the proposed reforms reflect a move which feeds into a rhetoric of ‘challenge culture’, a rhetoric currently employed by the government in the context of major infrastructure. ⁴ This positions procedural and administrative law as an obstacle to major infrastructure development and echoes the neglect of, and even hostility towards, participation we have seen elsewhere in the environmental law context. ⁵

The Planning and Infrastructure Bill

Part 1 of the Bill amends the Planning Act 2008. ⁶ This Act addresses Nationally Significant Infrastructure Projects, that is large-scale projects falling into five general categories (energy, transport, water, wastewater and waste). Under the Planning Act, a series of National Policy Statements (NPS) set out the government's objectives for the development of nationally significant infrastructure in a particular sector. Individual NSIPs must then apply for permission (called a Development Consent Order (DCO)) before development can take place. The Secretary of State is responsible for granting the final DCO for individual projects.

The NSIP process consists of six stages. The first, pre-application, is a front-loaded stage which is critical to preparing applications. Numerous activities are required at this stage such as developing stakeholder relationships, undertaking consultation, conducting necessary project assessments (e.g. Environmental Impact Assessments), logistical preparations, developing project design. The average timeframe for this pre-application stage is 2 years. ⁷ Following this, applications are submitted to the Planning Inspectorate for the second stage, acceptance. Once accepted, applications are subject to the third pre-examination stage during which the examining authority/inspector(s) is appointed by the Planning Inspectorate. This stage usually takes around 3 months. This is followed by the fourth examination stage, during which the examining authority/inspector(s) will review the proposed project, which should take a maximum of 6 months. If an application is subject to a fast-track timeframe this should be reduced to 4 months. Next comes the fifth recommendation stage where the examining authority/inspector(s) will prepare a report and recommendation for the Secretary of State. Finally, the Secretary of State will determine whether consent (a DCO) is granted at the decision stage. Both the recommendation and decision stages should take a maximum of 3 months each, unless an application is subject to a reduced fast-track timeframe.

Due to the relatively short timeline post acceptance, the pre-application stage of the NSIP process plays an important role. Crucially, under the Planning Act 2008 developers are under a legal duty to consult those such as statutory consultees and the local community/public at this pre-application stage. ⁸ They are also under a duty to take account of these responses. ⁹ This aims to ensure that, early on, a range of voices, with different insights and experience, are heard and incorporated while the project is still evolving. The public, for example, are given the opportunity to engage with the developer to find out more about the project and how it might impact the local area. The public can ask questions, raise concerns, attend meetings and raise any issues over how the applicant is carrying out the consultation process itself. ¹⁰ Such consultation has, quite rightly, been subject to criticism for its limited nature/lack of meaningful engagement. ¹¹ However, at present, the Planning Act 2008 does at least ensure there is a legal duty to consult reflecting the participatory principles of the Aarhus Convention (The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). ¹² Under the proposed changes in Part 1 of the Planning and Infrastructure Bill, such a right is quite simply eliminated by the removal of the duty to consult. ¹³ This is a significant change.

Further, in attempts to reduce the perceived delay to development caused by legal challenges to NSIP decisions, and the perceived issue of unmeritorious claims, the Planning and Infrastructure Bill seeks to reform the way in which judicial review claims of NSIPs can be brought. ¹⁴ These changes follow on from the ‘Independent review into legal challenges against Nationally Significant Infrastructure Projects’ conducted by Lord Banner KC in 2024 (The Banner Report). ¹⁵

At present, ‘permission’ is required for cases to be heard. This permission is initially granted/denied by a single High Court judge based solely on the documents submitted (i.e. there is no hearing). The judge will consider whether there is an ‘arguable ground’ with a ‘realistic prospect of success’. ¹⁶ If permission is refused based on the documents, the claimant can still request that the application be reconsidered at an oral hearing in the High Court. If permission is refused at that oral hearing, the claimant can seek permission from the Court of Appeal resulting in three overall opportunities to seek permission. If, however, a High Court judge finds that a claim is ‘totally without merit’, meaning it is bound to fail, ¹⁷ on the basis of the initial paper submission the claimant loses the right to an oral rehearing but can appeal for a review of the paper submission by the Court of Appeal (without a hearing). ¹⁸

Clause 12 of the Bill makes two key changes to the judicial review process. First, removing the ‘paper permission’ stage of judicial review replacing this with an oral hearing for all cases (reducing the opportunities at which a claimant can seek permission for judicial review from three to two). ¹⁹ Second, removing any right of appeal for cases that are found to be ‘totally without merit’ at the initial High Court oral hearing (reducing the opportunity to obtain permission to just one for such cases). ²⁰

Discussion

This commentary argues that Part 1 of the Bill poses potential threats to public participation, access to justice and public accountability. Underpinning these changes lies a rhetoric of ‘challenge culture’; a phrase currently employed by the government in the context of major infrastructure. ²¹ This framing seeks to position both procedural and administrative law as an obstacle to economic development, echoing the neglect of/hostility towards participation we have seen elsewhere in the environmental law context. ²²

First, the proposed changes to pre-application consultation for NSIPs remove the pre-application public consultation requirements for major infrastructure projects. This deprives key actors of a crucial opportunity to take part in decision-making. Whilst the government has proposed issuing further guidance to assist applicants, for example setting out what the Secretary of State considers to be best practice in relation to public participation, ²³ discussion of how this will happen or what it will look like, is lacking. ²⁴ Further, while we can hope that NSIP developers will acknowledge and respect the importance, and advantages, of early community engagement, it should not be forgotten that the central change made by the Bill is to remove the public's legally enforceable right to be heard. ²⁵ Under the Bill, participation is at the mercy of developers; those with power. ²⁶ Early participation plays a key role in delivering positive outcomes and improving the quality of decision-making. ²⁷ Participation at later stages, once plans have already been submitted leaves extremely limited scope for any kind of meaningful engagement that enriches decisions by providing a range of perspectives, values and knowledge/expertise. Further, local knowledge plays an important role in helping the applicant to identify issues, exclude unsuitable options and reduce potential impacts on the local community where possible. As such, the proposed changes have notable implications not only for the quality of decision-making, but also for the distributional fairness of NSIP decisions.

At a time when we are facing the ever complex and polycentric challenges associated with biodiversity loss, climate change and the urgent need for infrastructure, excluding voices from the decision-making process poses two very real risks to the quality and justness of any decisions we make regarding infrastructure. Given that infrastructure inevitably distributes the costs/benefits in uneven ways, such exclusionary decisions risk exacerbating the existing social and economic divides we already see within our society. ²⁸ Moreover, with the reduction, or exclusion, of the public voice one of the key mechanisms through which environmental voices can enter decision-making processes, so often dominated by economic values, is removed. This absence is exacerbated by the Bill's simultaneous removal of the duty to consult statutory consultees at the pre-application stage. The absence of such expert input early on in the project's lifecycle excludes those with a range of relevant knowledge and insight from shaping the project's early development. ²⁹ This potential absence, of both statutory consultees and public voice at early stages of the project development, is particularly worrying considering the issues that have already been highlighted post-Brexit with regard to the environmental protections available and the very real risk of regression. ³⁰ Most recently, the OEP has again warned of the reduced environmental protection in the Planning and Infrastructure Bill. ³¹

Second, the proposed changes to judicial review contained in the Bill pose risks to both public access to justice, and public accountability. The Bill proposes two key changes to the judicial review process. The removal of what is termed the ‘paper permission’ stage of the judicial review process and the removal of any right of appeal for cases that are found to be ‘totally without merit’ at the permission stage. Combined, these changes raise concerns relating to cost and resource implications for the parties and the courts, and the scope to bring legitimate claims. Under the proposed removal of the paper permission stage, oral hearings will be held for all NSIP judicial review cases. Oral hearings can be a ‘powerful force…to promote a change of mind by a judge’, ³² and as such the proposal has promise in guaranteeing claimants the benefit of this ‘powerful tool’. However, given the aims behind the reforms, to reduce unmeritorious claims and delay to infrastructure, there is an arguable need for greater empirical evidence and clarity over why it is considered more time-effective for parties to give a potentially unmeritorious claim one full oral hearing in the High Court, rather than two paper applications. While removal of the paper stage may allow for a more human permission process, it does inevitably risk increased costs and resource demands for both parties and the courts. ³³ Further, the implications for an already strained judicial system necessitate wider consideration of how the courts will be adequately resourced to ensure that any potential efficiency gains do in fact materialise without compromising access to justice. ³⁴

The proposed removal of the right of appeal where a claim is found to be ‘totally without merit’ poses a legitimate risk to both access to justice and accountability; any decision which is exempt from the right of appeal risks mistakes. As the Banner report itself highlights, if there was only ‘one bite of the cherry’ and no right to appeal, significant cases such as Finch might never have been heard. ³⁵ Such exclusion may only apply to a small number of cases. Nevertheless, it jeopardises access to justice, and risks undermining the purpose of judicial review; to act as a constitutional safeguard. ³⁶ While swift administration of justice is a worthwhile aim, efficiency gains should not be made at the expense of this safeguard and associated access to justice. ³⁷

It is worth noting that scrutiny, and criticism, of the judicial review process is not a new phenomenon. We have, in many ways, been here before. ³⁸ In critiquing judicial review, we see an oversimplified understanding of infrastructure delay. Other factors inevitably play a role. Not least, the delay which can stem from government's own indecision, and the political sphere. Focussing blame on judicial review is an oversimplification, which fails to engage in a more reflexive consideration of the role of these other factors in shaping how appealing infrastructure/development contexts are for developers. ³⁹

A move in the wrong direction

Individually, the proposed changes raise a number of questions. Combined, they speak to the Bill's desire to frame the public voice, and public, as an inconvenience or an obstacle to be overcome. Such an approach is problematic and risks serious damage not only to the quality and justness of infrastructure decisions, but to public trust in the planning system. This has potentially significant implications.

Trust is vital to the operation of society. ⁴⁰ In the context of infrastructure, trust can provide a basis upon which confidence in planning decisions can be established. ⁴¹ Without trust, opposition to and concern over developments is likely to increase. At present, we are already operating in a relatively low trust context. A recent Office for National Statistics survey found that two-thirds of respondents had little or no confidence that they have a say on the decisions made by the government. ⁴² Given that once damage to trust has taken place it can be very difficult to rebuild, further moves which erode public trust in planning are problematic. ⁴³ This is particularly so given that constraining formal routes to express contrasting views/concerns, through pre-application participation or limiting accountability mechanisms through judicial review, risks fostering a sense of exclusion and distrust. Crucially, removing such mechanisms is unlikely to simply prevent all disruption to NSIPs. Where people feel they aren’t being heard within the planning system, they may be forced to look for alternative ways to express themselves. ⁴⁴ One such way could be increased protest, and we have seen the implications/delay this can cause for projects. Concern relating to such delays has already prompted changes to restrict the scope for protest, some of which have recently been held to be unlawful by the Court of Appeal. ⁴⁵

The current NSIP planning and judicial review process may not be perfect. Statutory consultation is a limited form of participation. Further, fragmentation and traditional administrative legal framings in the planning context can result in a lack of creativity when it comes to dealing with the complexities of infrastructure and climate change. ⁴⁶ Despite this, it is clear that the exclusion of civic voice and limited access to justice are not the answer. The Bill's proposals are very much moves in the wrong direction.

Conclusion

Overall, the proposed changes in the Bill reflect a move which feeds into a rhetoric that frames citizen voice and civil society as ‘problems for development’; participatory planning and access to justice are cast as obstacles. ⁴⁷ When considered alongside the concerns post-Brexit about shifts in environmental law, these changes are particularly worrying. ⁴⁸ The proposed reforms in Part 1 of the Planning and Infrastructure Bill are of concern in and of themselves, but they also prompt wider concern about the further implications of starting to strip away legal protections in support of a framing that positions procedural and administrative law as a hindrance.