Banner review offers some solutions to UK infrastructure delivery problems

Robbie Owen of Pinsent Masons was commenting after Lord Charles Banner KC set out 10 recommendations for reducing delays to NSIPs in a report published by the UK government on Monday. Publication of the report comes after Banner completed his review of legal challenges to NSIPs earlier this year. That review was commissioned by the previous government. His recommendations include ones aimed at limiting the scope to raise judicial review proceedings in respect of NSIPs and ensuring speedier resolution of such proceedings where they are lodged.

The UK government has opened a nine-week call for evidence seeking stakeholder views on the recommendations from the Banner review. Once it has assessed the feedback, it has promised to set out its own response to the review “with a focus on ensuring there is a balance between the critical need for projects and maintaining the public’s right to challenge government decisions”.

“Publication of Lord Banner’s report is timely in view of the new government’s growth and clean energy missions and comes in the wake of two recent court rulings to judicial review challenges raised against development consent orders issued in relation to two major road NSIPs – the A66 Northern Trans Pennine improvement scheme and proposed improvement of the A303 trunk road to improve journey times and facilitate access to the Stonehenge World Heritage Site,” said Owen.

“While the judicial review challenges were dismissed in both cases, they provide current context for the review Lord Banner undertook, with developers facing real challenges to progressing NSIPs due to the number of judicial review proceedings proliferating at a time where there is an unprecedented number of large projects in the pipeline for consenting over the next five years,” Owen said.

In his report, Banner said that it is “excessive” that those seeking to challenge NSIPs have three opportunities to obtain permission to do so. He said there should just be one or two opportunities to obtain permission for judicial review, at the High Court and at the Court of Appeal.

Banner further recommended that the government consider the option of raising the permission threshold for judicial review claims challenging development consent orders (DCOs), which are the instruments used to consent NSIPs. Further consideration should also be given to whether a small pool of judges with NSIP experience should be designated to hear DCO judicial reviews under a so-called ‘NSIP ticket’ within the Planning Court, he said. Banner also recommended that Civil Procedure Rules be updated to ensure that DCO judicial reviews are automatically deemed ‘significant Planning Court claims’, to ensure they are dealt with promptly.

Owen said: “If the UK is to achieve its ‘net zero’ ambitions on time and resolve the severe challenge of water scarcity, it can ill-afford for the two-plus years’ delay that dogged the Stonehenge plans to be repeated in respect of major water and energy projects in the pipeline. The Banner review contains no silver bullet to the issue of delays caused by repeated judicial reviews, but the recommendations, if implemented, can form part of the solution – in tandem with other planning reforms that are needed to improve UK infrastructure delivery.”

“More fundamental reforms, such as creating a different procedure for aspects of consenting ‘critical national priority’ infrastructure, a concept brought about by the Johnson government for offshore wind farms and since being called for to apply more widely, are needed,” Owen said.

“In addition, with its eagerly anticipated new Planning and Infrastructure Bill, the government needs to improve the process for keeping the national policy statements (NPSs) that are relevant to different types of infrastructure up to date, as there is no doubt that ageing NPSs, particularly in the last five years, have directly led to more judicial reviews of DCOs. Further, the government must legislate to provide a timetable for the redetermination of DCOs which have been quashed by judicial review, so redetermination is not delayed and government departments do not need to go through endless hoops and navigate moving goalposts in the redetermination process,” he added.

The government’s call for evidence on the Banner recommendations closes on 30 December.

Recently, the government confirmed that a new National Infrastructure and Service Transformation Authority (NISTA) is to become operational in the UK by spring 2025, to lead on strategic planning of major infrastructure projects as well as on their delivery. A new 10-year national infrastructure strategy is also to be published in the spring.