The prime minister wants to rein in legal challenges that stall major infrastructure projects, but is he taking on ‘blockers’ or scapegoating concerned citizens? Tim Clark reports
The prime minister has promised to tackle the NIMBYs and turbocharge new infrastructure.
Nuclear plants, train lines, wind farms; major infrastructure projects will be built quicker thanks to changes to the rules to stop “blockers” getting in the way of the government’s “plan for change”.
In the policy speech last Thursday, the PM said: “For too long, blockers have had the upper hand in legal challenges – using our court processes to frustrate growth. We’re putting an end to this challenge culture by taking on the NIMBYs and a broken system that has slowed down our progress as a nation.”
For the construction sector, such changes couldn’t come soon enough. According to the government over half – 58% – of all decisions on major infrastructure were taken to court, which it says got in the way of “the government’s central mission to grow the economy, and put more money in hard-working people’s pockets”.
The prime minister’s speech has been given a warm welcome from the sector
Sacrosanct
“Any reforms which will speed up the delivery of major projects are welcome,” says Tom Barton, partner in the planning team at Mishcon de Reya. “While the right to challenge is sacrosanct, it can certainly be argued that at present the law is tilted too far in favour of those wishing to stall development.”
Balfour Beatty, which has pivoted into an infrastructure-heavy pipeline of work, has also praised the announcement. Chief executive Leo Quinn said: “Reducing the uncertainty that delays progress and drives up costs should help unlock significant economic benefits and enable faster delivery of the critical infrastructure that the UK urgently needs.
“This is a strong start and I look forward to seeing the full plans in the upcoming Planning and Infrastructure Bill.”
The Stonehenge Tunnel is one example of a project that was delayed, saw cost inflation, mainly due to legal action. The project was cancelled by the incoming government but not before millions was spent on defending legal challenges.
Initially estimated at £1.7bn, the project aimed to improve traffic flow on the A303 while reducing its visual impact on the Stonehenge World Heritage Site. However after a challenge backed by solicitors Leigh Day, in July 2021 the High Court ruled the development consent order (DCO) unlawful, citing the Secretary of State for Transport’s failure to adequately assess the impact on each heritage asset and to consider alternatives.
In July 2023, the project was reapproved by the Conservative government with revised costs of £1.9bn due to inflation and redesigns. This prompted a renewed legal challenge by Save Stonehenge World Heritage Site (SSWHS), arguing that the decision still failed to account for the project’s harm to the site, and did not adequately evaluate alternatives.
By February 2024, the estimated cost had risen to £2.2bn, reflecting further delays. Although the High Court dismissed the latest challenge, SSWHS was granted permission to appeal in May 2024. UNESCO repeatedly warned that the project risked Stonehenge’s World Heritage status.
In July 2024, amid escalating costs estimated at £2.4bn and ongoing legal disputes, the UK government cancelled the project as part of wider budget cuts. This decision was welcomed by heritage groups but raised concerns among local authorities over unresolved traffic issues on the A303.
To be fair to the Stonehenge campaigners, the legal challenge had a solid basis. The government’s latest plans look to speed up the process for challenges, which in its opinion are inevitably “doomed to fail”.
To back up such claims the government has cited a number of projects such as wind farms in East Anglia, which were delayed by groups who went to court, but lost “at every turn”, delaying the project by two years.
Instrument of change
The mammoth Sizewell C nuclear power station in Suffolk has seen court action by what the government describes as ‘a small group of activists’, with the High Court dismissing it and describing aspects of the legal argument as ‘utterly hopeless’ – despite this, work was left uncertain for two years and legal costs increased.
Similarly, the A47 road project has also seen legal action delay the start, even though the court was dismissed as having “no logical basis”.
The prime minister is no stranger to the law, having been head of the Crown Prosecution Service, and clearly sees legislation as the instrument with which to deliver meaningful change.
The issue that the government has with the current structure of appeals is that, according to Starmer at least, many legal petitions that are considered “hopeless” still take up valuable time.
Jason Lowes, planning partner at Rapleys, said: “It’s a strong message about bringing more certainty to the development process, and we are all for that. However, the question about announcements like this is how much difference will it really make.
“Few people would object to making it harder to hold up national infrastructure up through ‘frivolous’ legal action, but details are very thin on the ground as to how the current system, which already has safeguards in place (simply making a claim does not automatically result in a hearing), will be changed.”
The proposals build on the findings of an independent review, led by Lord Charles Banner KC, into the delays caused by legal challenges to the delivery of Nationally Significant Infrastructure Projects (NSIPs).
The review sought to streamline the judicial review process while safeguarding access to justice, and ensuring compliance with the UK’s international obligations, such as the Aarhus Convention.
Lord Banner’s review suggested limiting the number of opportunities for claimants to seek permission for judicial reviews of Development Consent Orders (DCOs). For example, the process could be reduced to a single permission stage, such as an oral hearing in the High Court, freeing up valuable court time and expedite the resolution of cases.
The review also recommended setting up a specialised cadre of High Court judges with expertise in NSIPs to help also speed up the process. These judges would ensure more informed and consistent decision-making in cases related to major infrastructure projects.
Broad concensus
Commenting on the plans, Lord Banner said: “In the course of my review, I saw broad consensus from claimants to scheme promoters that a quicker system of justice would be in their interests, provided that cases can still be tried fairly.
“I am therefore pleased to see the government acting on the back of my review. In particular, reducing the number of permission attempts to one for truly hopeless cases should weed out the worst offenders, without risking inadvertent delays because judges choose to err on the side of caution.”
Streamlining procedures was another central focus, with the review proposing the classification of NSIP-related cases as ‘significant planning court claims.’ This would introduce tailored processes to reduce delays.
The review also suggested raising the threshold for granting permission to bring judicial review claims against DCOs, ensuring that only cases with “substantial merit” would be able to proceed.
It is not clear how many legal claims this would halt, however the government is hoping that it would ease the burden on the courts.
Improved case management was recommended to enhance efficiency further. Automatic pre-permission case management conferences could be introduced to identify key issues early and set clear timelines.
Additionally, the review emphasised the importance of publishing regular data on the progress and outcomes of judicial review cases related to NSIPs, promoting transparency and enabling performance monitoring.
Barton is optimistic about the changes. “It is fantastic to see Lord Banner using his knowledge and insight as a practising planning lawyer to inform and drive change through his position in the Lords,” he adds. “As a country we desperately need to take action to deliver major projects to drive growth – these reforms would be a step towards doing so.”
Legal minefield
For those seeking to improve the delivery of infrastructure in the UK, the plans to turbocharge planning and streamline the legal system may sound positive. However the idea that legal opposition can be stymied may prove problematic.
Judicial review is a key mechanism to ensure accountability, with it used as a means for the public to challenge decisions that they may deem to be unlawful or flawed – at least procedurally. So to remove some of those rights will be watched closely. By speeding the system up the government can argue that those same rights still exist, but that they don’t have the ability to stall projects for as long.
The government has acknowledged its commitments to the Aarhus Convention – which guarantees public participation and access to legal remedies for environmental and planning decisions – but again will argue such protections still exist.
Politically, the government may come up against challenges to its plans, maybe not in the legal system, but in political campaigns.
Niall Toru, senior lawyer at Friends of the Earth, which has brought a number of legal cases forward in recent years, said: “No one is above the law, not even the government.
“Friends of the Earth only brings cases we think are strong and necessary to protect people and nature from unlawful harm – and considering our string of recent legal wins, so do the courts.
“It is deeply concerning that Labour is attempting to scapegoat claimants. If ministers don’t want to be challenged in the courts, they should act within the law, because already cases aren’t allowed to proceed unless they have merit.”
All eyes will be on the forthcoming Infrastructure and Planning Bill to see how and where the legal changes will come.
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