Proposed Legal Reforms Risk Undermining Justice in Infrastructure Planning

The Government has recently announced changes to the Judicial Review process for planning decisions for Nationally Significant Infrastructure Projects (‘NSIPs’) such as airports, railways and nuclear power stations. These changes, aimed at accelerating the delivery of critical national infrastructure, follow recommendations made by Lord Banner KC in an Independent Review of Legal Challenges to NSIPs.[1]

Some of  the proposed changes including scrapping the paper permission stage in the High Court for NSIP judicial review claims and restricting access to the Court of Appeal.  The Government have argued that these reforms are essential to unlock infrastructure projects and deliver housing, transportation and energy projects.[2] 

JUSTICE is concerned that the reforms risk sidelining public accountability, diluting the rule of law and causing practical issues in the courts.  

A Shift Away from Accountability

Judicial review is a cornerstone of the UK’s legal system, enabling individuals and organisations to challenge public decisions that may be unlawful, procedurally unfair, or irrational. We welcome the Government’s commitment to ‘ensuring that access to justice is maintained in line with its domestic and international legal obligations’ and statement . that ‘judicial review is a constitutionally important mechanism’.[3]

As the Attorney General has said, there is a crucial link between a country’s commitment to the rule of law and its levels of innovation, inward investment, trade and economic growth.’[4]

Economic Growth v Legal Protections

The Government argues that reforms are needed as delays to major infrastructure projects cost the economy.[5] Government data shows that 58% of decisions on major infrastructure projects are challenged in court. They have set out that some major road projects have incurred costs of up to £121 million per scheme because of prolonged legal proceedings,.[6] The Government has also highlighted that the average legal challenge takes around a year and a half to be resolved, with many delayed for two years or more.[7] However, this timeline applies to all judicial reviews, not solely those concerning major infrastructure projects.

We are concerned that referring to the ability to challenge Government decisions through judicial review as a ‘challenge culture’[8] undermines a critical mechanism for upholding the rule of law and ensuring public accountability. This framing pits economic development against basic legal protections, when the Government itself has acknowledged that the rule of law is fundamental to economic growth.[9]

JUSTICE opposes the removal of the paper permission stage on both access to justice and efficiency grounds. The paper permission stage is a cost-effective way for the courts to approve permission where a claim is clearly arguable, provide clear reasons for refusing permission or certify the claim as totally without merit (which means its request for permission cannot be renewed at an oral hearing). Removing the paper decision would also undermine the use of rolled-up hearings, where a paper decision determines that the permission and substantive decision can be determined together at one oral hearing.

The paper permission stage is an important opportunity for a claimant to get a High Court judge to determine if their claim is arguable. Since there is not a resource intensive oral hearing, this promotes access to justice by keeping costs down. Forcing all claimants and public authorities to attend a full oral hearing, even if they have a strong argument, will increase potential costs for both parties affecting access to justice. It is also an inefficient use of court time and resources in such claims.   

We are also opposed to removing the ability to renew a permission decision classed as totally without merit to the Court of Appeal. There is very limited data on the success of applications to the Court of Appeal but it is an important safeguard that a case can be reviewed again by senior judiciary. It is unclear why it is more time-effective for parties to give a potentially unmeritorious claim one full oral hearing in the High Court, rather than two paper applications.  

JUSTICE is concerned that reforming the permission stage for NSIP judicial reviews could lead to calls for wider reform of judicial review.[10] Judicial review is an important constitutional protection which has come under increased political attack over recent years. Restricting NSIP judicial reviews to only the strongest claims risks paving the way for similar restrictions across other areas of judicial review, including planning law more widely. Such an approach would undermine the essential role of judicial review in holding the Government accountable and protecting important constitutional safeguards such as  access to justice and the rule of law.

What Next?

JUSTICE calls for a more balanced approach to planning reform that preserves access to judicial review. This is especially when the proposed changes are likely to make the system less efficient and be impractical. Given the Government’s belief that there are economic benefits to adhering to the rule of law, they should carefully weigh the potential wider implications of undermining judicial review as an important way of ensuring good quality government decisions and public accountability. We would urge them to think again on removing the paper permission stage and limiting the right of access to the Court of Appeal.


[1] Lord Banner KC, ‘Independent review into legal challenges against Nationally Significant Infrastructure Projects’ (28 October 2024)

[2] HM Government ‘Planning Proposals to Unblock Vital Infrastructure and Drive Nature’s Recovery’ (22 January 2025)

[3] Ministry of Justice, ‘Judicial Review and Nationally Significant Infrastructure Proiects: A call for evidence on the recommendations of the independent review by Lord Banner KC’ (28 October 2024), p8

[4] Rt Hon Lord Hermer KC ‘Rule of Law essential for economic growth, says Attorney General’ (17 January 2025)

[5] HM Government ‘Planning Proposals to Unblock Vital Infrastructure and Drive Nature’s Recovery’ (22 January 2025)

[6] HM Government, ‘Prime Minister clears path to get Britain building’ (23 January 2025)

[7] ibid

[8] ibid

[9] Rt Hon Lord Hermer KC ‘Rule of Law essential for economic growth, says Attorney General’ (17 January 2025)

[10] JUSTICE ‘Response to Ministry of Justice Call for Evidence: Judicial Review and Nationally Significant Infrastructure Projects’ (9 January 2025)