The Government is moving to make decisions approving Nationally Significant Infrastructure Projects (almost) immune from legal challenge.
Getting Britain Building
Consistent with its mantra of getting Britain building, the Government is proposing to further strengthen the path to delivery of infrastructure. The Development Consent Order process was designed to deliver planning permission. This was brought in against the backdrop of increasingly lengthy and expensive public planning inquiries for infrastructure projects such as the expansion of airports. These had been (probably fairly) described as lawyer-fests.
Notwithstanding the accelerated route to a decision, as for any decision of the Government, any approval was still susceptible to a challenge in the courts (colloquially a judicial review but more accurately a statutory challenge).
Protecting Projects
In an exercise in epizeuxis, the Government is proposing to identify and protect the most nationally significant nationally significant projects, with the final decision to approve them being one of Parliament (rather than the Government) and thus exposing them to far more restrictive grounds of challenge, principally human rights.
A second proposal is to provide for a draft decision on such a project that would be exposed to the glare of legal challenge, thus affording the deciding body the opportunity to fix any issues previously identified.
As with all such measures, there is a balance to be struck. Undoubtedly there will be voices from the sectors affected loudly in support, whilst public interest groups will be equally exercised in opposition. The truth is that everybody is in favour of Government being unwavering in its cause, and critical of those who would speak out (with deference to Martin Niemöller), just so long as it is a cause that they believe in and support.
As an addendum on this issue, a recent refusal of leave to appeal to the Court of Appeal highlights both the need for professionals to remain up to speed with changes to the Civil Procedure Rules , in this case reducing the window for an application for leave from 21 to 7 days for Development Consent Order decisions, and the continuing reluctance of the courts to grant relief to claimants who have acted out of time.
As ever, the merits of a challenge are irrelevant if the claim is not accepted by the court and early legal advice is always going to be an advantage in such cases.