- Against - Alex Shattock
Infrastructure. We all need it. But not all of us want it. And in a world where judicial review is available, some of us are prepared to challenge new infrastructure in court. Indeed, infrastructure challenges are on the rise. This begs the question: have infrastructure challenges, like science, gone too far?
Certainly, that is view of the author of this article in The Times (paywall) published over the summer, which names two regular claimants in particular, Transport Action Network and Dr Andrew Boswell, as being responsible for delays in bringing forward new infrastructure. Two claimants who, I should probably add, are valued clients of mine. The other culprit? I don’t need to ask: you already know the answer. The roadbuilders would have gotten away with it too, if it wasn’t for that pesky Aarhus Convention costs capping regime.
Unsurprisingly perhaps, but I am not of the view that infrastructure challenges have now become a particular problem or barrier to development.
Firstly, we need to remember where we came from: a pre-Planning Act 2008 world, where barristers were instructed for years on end, racking up endless fees while the new terminal, runway or road scheme only seemed to get further out of reach (heady days). But now, everything is railroaded through the DCO examination process, with a mere 6-week window to challenge at the very end of the line. Slim pickings for claimant environmental lawyers: many legitimate procedural complaints will naturally fall away by the time that small window opens. And, even worse, decision letters are increasingly scrutinised by government lawyers with a level of careful care and attention that often, infuriatingly, catches legal pitfalls before they are stumbled into. In short, it has never been more difficult to challenge infrastructure projects in court.
Secondly, it is inaccurate to suggest that ‘hopeless’ claims are delaying infrastructure. Claims which are hopeless are weeded out quickly by the combination of the ‘arguability’ permission bar and the accelerated timetable in the High Court for ‘significant planning cases’, a timetable that applies to pretty much every DCO challenge. A claim that gets all the way to the Court of Appeal is by definition a claim that is not hopeless. It has been deemed by the courts that the claim is arguable and that it meets the test for an appeal i.e. having a real prospect of success and/or raising an important point of principle or practice (It is true that the Court of Appeal can be slow at times: but that is no fault of claimants, and the Court can consider an appeal on an expedited basis. Certainly in my experience, it is prepared to do so in the case of infrastructure challenges).
Moreover, in the case of a truly hopeless challenge, there is nothing to stop applicants from simply cracking on and building ‘at risk’: the DCO authorises development up until it is quashed.
Thirdly, and perhaps most importantly, if you think a right to challenge is important, you can’t get annoyed when people exercise that right. No doubt infrastructure challenges are frustrating for those in the business of building infrastructure. But that is the cost of doing business in a democratic society built on the rule of law. Our national and international (Aarhus again!) obligations require us to allow groups and individuals to bring legal challenges to these kinds of decisions in order to ensure the decision has been made in a lawful manner. In many countries around the world, there is no right to challenge infrastructure decisions, and impressive infrastructure projects are built very quickly indeed. I would not want to live in those countries.
No doubt there are further opportunities to streamline the DCO and court processes to ensure that infrastructure comes forward quickly even when challenged unsuccessfully. But I do not think that further restricting the rights of claimants to bring legal challenges needs to, or should, come into it.
- For – James Maurici KC
As Alex seems to accept no one can deny there is a need for lots of new and additional infrastructure in the UK. Quite literally in fact this is so if there is an NPS in place under the 2008 Act that established there is a need. But whatever the level of need some people don’t want the infrastructure. Either because they don’t believe there should in fact be more of that type of infrastructure (e.g. roads) because of its environmental impacts or because they do believe in it, but they don’t want it in their backyards. Yes I am already discussing NIMBYs. Or they might even be BANANAs (“build absolutely nothing anywhere near anything"”). I have only just come across this phrase and I love it.
The premise of the Banner Review was “as a concern in government and amongst some stakeholders that unmeritorious legal challenges to DCOs were causing significant undue delay to the delivery of NSIPs, with consequent detriment to the public interest” (https://www.gov.uk/government/publications/independent-review-into-legal-challenges-against-nationally-significant-infrastructure-projects/independent-review-into-legal-challenges-against-nationally-significant-infrastructure-projects).
Now I predicted this issue. Writing back in 2009 in the JPL, in an article entitled, “Judicial review under the Planning Act 2008” (J.P.L. 2009, 4, 446-451). I said:
““It seems to the author likely that the Planning Act will result in future years in a large number of legal challenges to planning decision-making on major infrastructure projects. There are many reasons for this
First, the Government argues that the Planning Act will give communities a "far greater say" on such projects. This is a view which has received little support from those outside Government. The opposing view is that communities will feel increasingly disenfranchised by the process leading to the grant of a development consent and this will, in the author's opinion, make all the more likely legal challenges whether to the development consent ultimately granted or to other decisions along the way including the adoption of an NPS. Such challenges may well be seen as the only remaining genuine opportunity to air objections to such proposals. What is more, such challenges are, it seems, to be all the more [because of] the growing influence of the Aarhus Convention …”
Interestingly the Banner Review picks up on some of these themes:
“31 … 1) Frequent feedback was received from claimants, and those who represent them, that they feel disenfranchised by the DCO examination process under the 2008 Act. In particular, it was said that the heavy reliance on voluminous amounts of written material means that the process is felt by many members of the public to be inaccessible. I do not comment upon the merits of this assertion, but it was a recurring theme that came up during my engagement sessions.
…
59. There is little doubt that the cost caps available for judicial reviews within the scope of the Aarhus Convention – as all NSIP cases will inevitably be – have contributed towards the proliferation of challenges to DCOs (and other planning decisions).”
So, I think it is clear there is an issue. The Banner Review makes that case convincingly – looking at the data. he Banner Review says that the minimum additional cost caused by challenges to road schemes is £66m per scheme. That is an eye watering amount of money that could be better spent on other things.
So, in direct response to Alex’s points above.
Firstly, the fact that it is difficult to win a DCO challenge is nothing to the point. Delay is the friend of the objector and the enemy of those seeking to deliver much needed infrastructure. It seems clear to me that the arguability threshold is too low. Permission is somewhat unpredictable sometimes. In the High Court you are more likely these days to get a specialist Planning Judge which can mean more scrutiny of arguability. But not all the High Court judges determining permission are truly planning specialists. And in the Court of Appeal 9 times out of 10 you have no specialist Planning Judge on permission. So, the Banner Review is I think right to suggest that “there may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.” The totally without merit marking is, in my view, too rarely used.
Alex says that in the case of a truly hopeless challenge, there is nothing to stop applicants from simply cracking on and building ‘at risk’. Nothing in law – unless the claimants seek interim relief and relying on the Aarhus Convention argue they need not provide a cross-undertaking. But in reality these multi-million and billion pound projects will not be funded with a judicial review hanging over the scheme. The risks here are too big to think anyone might take them. And what happens if the DCO is quashed? The regime makes development of an NSIP without a DCO a straight criminal offence unlike under the Town and Country Planning Act 1990.
Thirdly, the right to challenge is important but there must be limits. I have some sympathy with the Banner Review suggestion of limiting the opportunities to apply for permission from 3 (it was not long ago 4) to 2 but I think there are difficulties. Which of the 3 stages is best axed? There are arguments for it being the Court of Appeal – given how slow it can be. But the Banner Review suggests removing the paper permission stage in the High Court. I am not sure. I am aware of at least one NPS and DCO challenge that were not further pursued after refusal of permission on the papers. Maybe the answer is not to reduce the opportunities to get permission but rather to have time limits imposed on Court of Appeal decisions in the 2008 context. Fourth, Alex is correct that the Aarhus Costs rules have definitely increased litigation in this area but the protections already in place are said not to be enough for the Aarhus Compliance Committee in Geneva and hence the Government are (see earlier blogs) conducting a call for evidence seeking views on options to bring the UK into compliance with its obligations under the Aarhus Convention as ruled on by the Committee: see https://www.gov.uk/government/calls-for-evidence/access-to-justice-in-relation-to-the-aarhus-convention. I think the rules go far enough and should not go further.
This blog post was written by James Maurici KC and Alex Shattock.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick is a planning and environment specialist. He has featured in many of the most high profile recent planning and environmental law cases, including R (Finch) v Surrey County Council [2024] UKSC 20; CG Fry v SSLUHC [2024] EWCA Civ 730 (due in the Supreme Court in early 2025); R (Clarke-Holland) v SSLUH [2023]EWHC 3140 (Admin) and R (Friends of the Earth) v SSLUHC [2023] EWHC 3255 (KB). He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including: Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation); and various environmental litigation in the High Court and Court of Appeal for the NGO Rights: Community: Action. He regularly advises individual and NGO clients on Aarhus costs protection.
