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A leading planning barrister has recommended streamlining the process for judicial reviews of development consent orders after a review into the system.

Lord Charles Banner KC was commissioned at the beginning of this year by Michael Gove, then a secretary of state in Rishi Sunak鈥檚 Conservative administration.

His report into the system for appealing against decisions on Nationally Significant Infrastructure Projects (NSIP), which includes major infrastructure schemes relating to energy, transport, water and waste, was published yesterday.

It concluded that the existing process was creating delays and increased costs both 鈥渄ownstream鈥� in the construction process, but also 鈥渦pstream鈥� among those making decisions on infrastructure investment.

Banner said he had been made aware of 34 challenges under section 118 since the Planning Act 2008 came into effect in 2010.

Of those, 30 sought to overturn the secretary of state鈥檚 grant of a DCO. Only four challenges were successful. 

His analysis of case progression through the High Court revealed that the average time for a paper determination was around nine weeks, an oral renewal hearing took approximately 19 weeks, and a substantive hearing (excluding rolled-up hearings) took about 33 weeks.

Banner said National Highways had calculated that the increase in costs attributable to legal challenges was between 拢66m and 拢121m per scheme. 

He also said the 鈥榣ost time鈥� impact of a legal challenge was non-linear, meaning a two-year legal case did not lead to a two-year delay in the start of works. 

>> Read more: Infrastructure and speeding up the planning system 

He found that as well as 鈥渄ownstream鈥� delays to construction work on major projects, legal challenges were also resulting in a 鈥渃hilling effect earlier in the administrative approach鈥�.

鈥淥ne respondent indicated that, to even screen out an effect in [Environmental Impact Assessment] terms, it was effectively having to undertake a full EIA,鈥� Banner reported.

鈥淚 conclude that that there is a case for streamlining the process for judicial review of DCOs, and onwards appeals arising from such cases, to reduce the time it takes for the high proportion of unsuccessful claims to be concluded,鈥� he said.

鈥淒elays occasioned by unsuccessful challenges cause clear detriment to the public interest, the proportion of DCOs that are challenged (c.22%) is significant, and the proportion of those challenges that are unsuccessful is high. 

鈥淢oreover, DCO challenges have become more prevalent in recent years, from between 0-4 between 2010-2018, to a peak of 10 in 2022. In 2024 there have, so far, been 5.鈥�

Banner recommended that the number of 鈥渂ites at the cherry鈥� to obtain permission for judicial review should be reduced from three to two and the paper permission stage in the High Court should be eliminated, with applications proceeding directly to an oral hearing.

He also recommended new target timescales for the court of appeal and supreme court and the regular publication of how quickly DCO judicial reviews are actually progressing through the courts.

Banner found that cost caps, which limit legal costs for unsuccessful claimants at 拢5,000-拢10,000 have contributed to the rise in legal challenges. 

But he said that as long as the UK remained within the Aarhaus Treaty, which established these rules, there was 鈥渘o case for amending the rules鈥�.

Housing and planning minister Matthew Pennycook said he was 鈥済rateful鈥� to Banner for reviewing the system and said he would 鈥渃arefully review his recommendations鈥� before determining its plans to amend the NSIP system.

鈥満诙瓷缜� new and improved national infrastructure is essential to delivering the government鈥檚 economic growth and clean power missions and we must have planning system fit to deliver it,鈥� he said.