‘Sweeping reforms’ to aid energy infrastructure development – with offshore wind at the fore
The Chancellor is expected to announce sweeping reforms that will give Parliament the authority to approve critical energy schemes and better protect infrastructure projects from judicial review.
The proposed changes – on which a policy note is published today (Wednesday, May 20) – are intended to reinforce the UK’s energy security, drive down consumer bills and support the government’s central mission of economic growth.
The headline proposal would allow Parliament to designate and approve the most important clean energy projects as being of ‘Critical National Importance’ (CNI), reducing the exposure from judicial review on all but human rights grounds. This would help deliver the government’s commitment to accelerate new infrastructure development and drive growth, including much-needed projects like new power stations and offshore wind farms.
For all other nationally significant infrastructure – including transport and water projects – the government will introduce a fixed legal challenge window, at the end of which the planning consent could be updated to address any legitimate issues.
This would reduce the potential grounds for judicial review – and where any continue to be pressed, courts would be able to make use of existing reforms to deny permission where it was clear the claim was without merit. The law would also be changed to require the courts to refuse permission for a judicial review to proceed on any issues not brought up during the consenting period or in the challenge window – meaning that developers can then proceed with full confidence that no successive spurious challenges can be raised at a later stage.
Taken together the reforms are set to build on protections already passed into law through the Planning and Infrastructure Act, as the government seeks to end the practice of serial meritless legal challenges clogging up the courts. Of 167 Development Consent Order decisions made since 2008, just six were quashed following a challenge – with many more failed processes costing developers, taxpayers and the economy billions in delays and wasted time.
The new CNI route would apply exclusively to clean energy projects, reflecting the national urgency of the UK’s need to get off the fossil fuel rollercoaster. All other major infrastructure projects would benefit from the fixed-window route.
The government is also expected to allow promoters of smaller energy projects to apply directly to the Planning Inspectorate, rather than having to go through local councils. This will support faster decision-making on important generation and transmission projects that all contribute to our country’s energy resilience.
A Treasury spokesperson said: “For too long, vital infrastructure delivery has been delayed by judicial reviews of projects the country needs. The Chancellor won’t stand for it any longer and is bringing forward bold changes to support delivery.
She is clear that Parliament must take back control – to get Britain building the power plants, wind farms and grid connections that will bring bills down, strengthen our energy security, and deliver growth in every part of our country.
Lord Banner KC, author of the Independent review into legal challenges against Nationally Significant Infrastructure Projects said: “I was pleased to see the Prime Minister act on the recommendations of my review into legal challenges of nationally significant infrastructure projects last year, and these reforms are already bearing fruit. It was however clear from the many people I spoke to in the course of that work and since that there is a strong case for going further if we are to meet the scale of our infrastructure challenge.
“These proposals, which draw on the democratic mandate of the legislature, are a further bold step, and I look forward to supporting their development ahead of the government bringing forward legislation.
Robbie Owen, Partner, Pinsent Masons said: “This initiative by the government is welcomed and chimes with the case made out during the passage of the Planning and Infrastructure Bill last year that Parliament should have a role in relation to the consenting of critical national infrastructure projects. I look forward to seeing the detail but giving Parliament the authority to approve critical energy schemes and better protecting infrastructure projects from judicial review is essential if we are to deliver these much-needed projects within the timescale required.”
David Lawrence, Co-founder, Centre for British Progress said: “Judicial reviews to Nationally Significant Infrastructure Projects have driven up the cost of building Britain’s energy infrastructure and delayed vital clean energy projects. The Chancellor’s reforms tackle these rising costs, protecting consumers from higher bills and accelerating the transition to British-made clean energy.”
Dhara Vyas, Chief Executive, Energy UK, said: “Planning reform for clean energy is critical and still needs to strike a balance between a process that allows proper scrutiny of applications without unduly restricting the country’s ability to build the infrastructure necessary to strengthen our energy security, boost our economy, and help stop energy bills being at the mercy of global events.
“We warmly welcome today’s announcement that builds on earlier pledges of reform in relation to the National Planning Policy Framework, the Planning and Infrastructure Act, and the Fingleton Review. Judicial Review will still have a vital role to play but in its intended purpose of ensuring the right legal process has been followed – rather than to re-examine the whole application again. These reforms will ensure fairness remains within the planning process while enabling the much-needed roll-out of clean energy infrastructure to be accelerated.”