UK government set to limit judicial review challenges to key energy and infrastructure projects

Chancellor of the exchequer Rachel Reeves is looking to introduce a sweeping reform of planning rules which will allow critical clean energy projects to be approved by parliament, and restrict the scope of judicial review on key infrastructure projects.

The proposal would see essential clean energy ventures designated as being of ‘critical national importance’, which would limit exposure to judicial review on all but human rights grounds.

Other nationally significant infrastructure projects – including new transport and water schemes - would have a new fixed legal challenge window.

Robbie Owen, an infrastructure expert with Pinsent Masons, said the move would help meet the UK’s green energy and security goals – but that more could be done to protect projects from challenge. Owen called for parliament to have a role in relation to approving critically important national infrastructure projects when the bill for the Planning and Infrastructure Act 2025 was being considered, to shield those projects from judicial reviews.

“The government’s intention to accelerate delivery of critical green energy infrastructure is welcome and reflects the urgency of meeting the UK’s energy security and net zero goals,” he said.

“While limiting the scope for judicial review of energy projects designated by parliament as being of critical national importance should certainly help reduce delays, the government should go further and provide a process for parliament to confirm approvals given by ministers for all critically important energy, transport and water projects, which would then be completely immune from judicial review.

“There seems to be no good reason why the new parliamentary approval process shouldn’t equally apply to transport and water projects of critical national importance.”

Under the proposals (3-page / 294KB PDF), energy projects deemed of national significance would be designated as being of critical national importance by the energy secretary, with the House of Commons then voting to confirm that decision. The normal process would be then conducted for submitting and examining proposals for a development consent order, with the final decision by ministers being voted on again by the House of Commons at the end of that process.

Approved DCOs would be afforded a statutory status in the new legislation similar to an act of parliament, protecting them from judicial review on anything apart from human rights challenges, in order to reduce the risk of delay to projects in the national interest and supported by parliament.

For other projects deemed nationally significant, a new legal challenge window would be afforded for issues to be raised and addressed in relation to publication of a draft decision, aimed at reducing drawn out judicial review processes, after which the appropriate secretary of state would publish their final decision.

Following that would be a fixed time period in which any further judicial review claims must be made, but with the courts being able to refuse permission for these further claims if made on meritless grounds.

The government also proposes a change in the law to allow courts to block reviews on grounds not brought up during the earlier DCO examination process.

It claimed that just six of 167 development consent orders made since 2008 had been quashed following a challenge – but had left developers and taxpayers facing delays and significant extra costs.

The plans follow similar moves by the Irish government earlier this year to protect critical energy projects from challenge, and comes in the wake of changes to planning laws limiting the number of legal challenges and procedural requirements for nationally significant infrastructure project cases in recent years.

Owen added that it was important the reforms found the right balance between speed of delivery and maintaining confidence in a fair and robust planning process.

“Developers, investors and public bodies will closely review the detail of how these proposed changes would operate in practice and prepare their project consenting and delivery strategies accordingly,” he said.

“Clear guidance and early engagement with stakeholders will be essential to ensure that schemes can move forward with both pace and certainty.”