The Planning Brief | Third Edition

Infrastructure Consenting - PA 2008

Independent review into legal challenges against Nationally Significant Infrastructure Projects published.

The UK Government has published an independent review undertaken by Lord Banner KC into legal challenges against Nationally Significant Infrastructure Projects (“NSIPs”). The review makes a number of recommendations to ‘streamline the process’ for judicial review of Development Consent Orders (“DCOs”) so as to minimise delays caused by unsuccessful legal challenges, whilst at the same time upholding the UK’s constitutional principles and international obligations. In summary, the recommendations include:

• There should be no change to the Aarhus cost cap which applies to environmental cases (capped at £5,000 for individual claimants and £10,000 in all other cases and a £35,000 limit on recovery of costs from a defendant).
• No change to the rules in relation to bringing an application for judicial review.

A reduction in the number of opportunities to obtain permission to bring a claim for judicial review should be reduced from 3 to 2 (where a time limit on determination is introduced) or 1 (where no such time limit is set) to reduce the duration of a claim.

• A review of whether the threshold for bringing a judicial review claim challenging a DCO should be raised.
• Consideration of whether there should be a specialist NSIP division within the planning court with around 4-6 judges with in-depth NSIP experience being eligible to hear judicial review challenges to DCO decisions.
• Paragraph 3.2 Civil Procedure Rules Practice Direction 54D should be amended to add a new sub-paragraph providing that DCO judicial reviews are automatically deemed Significant Planning Court Claims.
• Introduction of a pre-permission Case Management Conference with a view to streamlining the permission process.
• Amending rules to introduce target timescales for deciding permission to appeal in judicial review cases involving DCO.
• Requirement for the publication of data on a 3-month rolling basis confirming the number of cases in the previous 3-months which have met the target timescales.

In a statement made on 23 January 2025 by Lord Ponsonby of Shulbrede, it was confirmed that the Government would be taking forward the proposal to streamline the permission stage for judicial review challenges to NSIPs so that all applications for permission will be heard at an oral hearing rather than having an initial paper permission stage. For cases deemed ‘totally without merit’ a refusal will be final and cannot be appealed (for all other refused applications the ability to appeal will be retained). In addition, the Government plans to:

• Introduce optional case management conferences for NSIP judicial reviews.
• Designate NSIP judicial reviews as significant planning court claims.
• Work with the judiciary to set target timescales for NSIP judicial reviews in the Court of Appeal and the Supreme Court.

These reforms aim to provide more certainty for NSIP developers by ensuring prompt decisions on judicial review applications while still allowing valid legal challenges. However, in our view, their effectiveness depends on adequate resources for the Planning Court to expedite case hearings.

Independent review into legal challenges against Nationally Significant Infrastructure Projects - GOV.UK
Written statements - Written questions, answers and statements - UK Parliament 

Planning Policy

Grey Belt Appeal Decisions

Two Planning Inspectors (“PINS”) have allowed appeals for proposals for new homes and a battery energy storage facility (“BESS”) to be developed on grey belt land. The decisions are among the first to deal with the grey belt designation introduced to the National Planning Policy Framework (“NPPF”) in December 2024 and provide helpful clarity as to how the determination of such applications will be approached. 

1. New Homes Appeal

Firstly, the appeal decision issued on 10 January 2025 relates to the decision of Tandridge District Council to refuse permission for the demolition of existing buildings and construction of two dwellings and a garage on a green belt site, in Copthorne, Surrey. PINS concluded:

• The proposed development would be “contained within the existing boundaries of the dwelling plot and would not result in the unrestricted sprawl of large built-up areas, the merging of towns, nor affect the setting and special character of historic towns”.
• The site does not “strongly contribute” to the green belt purposes and would meet the definition of grey belt land.

2. BESS Appeal

Secondly, the appeal decision issued on 13 January 2025 relates to the decision of Walsall Metropolitan Borough Council to refuse permission for a temporary 49.35 megawatt battery energy storage facility on green belt land off Chapel Lane in Great Barr, Walsall. The Inspector concluded:

• The site is not “immediately adjacent” to a large built up area, and separated from it by open fields, it did not “strongly contribute” to purpose a of the green belt, nor does it “strongly contribute” to purpose ‘b’ (paragraph 143 NPPF).
• The scheme would result in a “minor temporary reduction” in the gap between the towns of Walsall, Birmingham and Sutton Coldfield but, “significant open land would remain between the site and these towns”.
• The development “would not fundamentally undermine” the purposes of the green belt. 

The Planning Reform Working Paper on Planning Committees was published by the Government on 9 December 2024. The key proposals from the paper include the following:

• National Scheme of Delegation

The paper sets out three options introducing a standardised approach to delegating decisions to planning officers, aiming to streamline the decision-making process and reduce delays:

Option 1: Planning applications which comply with the local development plan should be delegated to planning officers for decision-making, rather than being reviewed by the planning committee

Option 2: Planning decisions should be delegated to planning officers by default, with the exception of applications that represent a departure from the local development plan

Option 3: All planning applications should be delegated to planning officers by default, with a specific list of exceptions that would be reviewed by the planning committee (major residential/commercial development not on an allocated site, land on the Green Belt engaging exceptional circumstances test in the NPPF, EIA development etc)

• Targeted Committees for Strategic Development: Creating smaller, specialised committees 
  

These committees would take ownership of strategic development applications and would operate in addition to the main planning committee, focussing only on those developments that are critical to supporting local economic development and local housing need, providing long term focus and consistency for the most important schemes.

• Mandatory Training for Committee Members: Implementing compulsory training for all planning committee members 

Planning Reform Working Paper: Planning Committees - GOV.UK

Planning Reform Working Paper: Development and Nature Recovery 

This Paper invites views on proposals for a new approach to how housing and infrastructure development can meet its environmental obligations and contribute to nature recovery. The Paper states the Government will meet its objectives by taking 3 steps for which the Planning and Infrastructure Bill will provide the necessary legislative underpinning:

1. Moving responsibility for identifying actions to address environmental impacts away from multiple project-specific assessments in an area to a single strategic assessment and delivery plan.
2. Moving more responsibility for planning and implementing these strategic actions onto the state, delivered through organisations with the right expertise.
3. Allowing impacts to be dealt with strategically in exchange for a financial payment that helps fund strategic actions, so development can proceed more quickly. 

The Paper outlines several scenarios to balance development and environmental sustainability:

• Holistic Nature Recovery: this scenario emphasises a comprehensive approach to nature recovery, aiming for better environmental outcomes by integrating nature recovery into the planning process.
• Positive Environmental Outcomes: instead of merely offsetting environmental impacts, this scenario seeks to use development projects to deliver positive outcomes for nature. This could involve creating new habitats or enhancing existing ones.
• Strategic Interventions: by pooling contributions from various developments, this scenario aims to fund large-scale environmental improvements that have a significant impact on nature recovery.
• Efficient Legislative Changes: the paper suggests using the Planning and Infrastructure Bill to streamline the process for meeting environmental obligations, making it easier for developers to comply while ensuring robust environmental protections.

Planning and Infrastructure Bill

The Planning and Infrastructure Bill (“the Bill”), announced in the King’s Speech on 17 July 2024, seeks to make a number of significant changes to the current planning regime. The recent policy paper issued on 26 January 2025 by the Ministry of Housing, Communities and Local Government entitled “Streamlining Infrastructure Planning” offers further insight into some of the changes the Bill is intended to bring about, which includes those detailed below. The Bill looks to: 

• Amend the Planning Act 2008 to require each NPS to be updated at least every 5 years, and also to introduce a more streamlined process for making changes to NPSs. It is claimed that this will reduce the overall time taken to update an NPS from around three years to just one. 
• Amend the Planning Act 2008 to make the following changes to the NSIP regime:
  • Change the application acceptance requirements which moves towards an outcomes-based approach, meaning that minor changes in the post-acceptance period may be made without the withdrawal or rejection of the application and so that ultimately, the consultation may be undertaken more proportionately.
  • Introduce a new duty on all parties to identify and narrow down any areas of disagreement during the pre-application stage.
  • Revise requirements regarding the contents of consultation reports.
  • Remove the requirement to consult Category 3 persons during the pre-application stage.
• Introduce a two-week window post-decision whereby upon the publishing of a draft order alongside the SoS’ decision, applicants will be able to propose minor corrections in relation to typographical and referencing errors to the DCO before it is published to avoid the need for a correction order.
• Remove the distinction between material and non-material changes on post-consent changes to DCOs and streamline the process into a single approach to all changes.
• Introduce a new power for the SoS to judge whether a project which qualifies as an NSIP would be better suited to be considered through a separate consenting regime.
• Streamline and improve the delivery of road infrastructure and general transport schemes, including the amendment to temporary possession powers, cost recovery and the introduction of further statutory deadlines to provide certainty to stakeholders. 

CPO and Compensation

Compulsory Purchase Process and Compensation Reforms

On 19 December 2024, MHCLG launched an Open Consultation on the Compulsory Purchase Process and Compensation Reforms. The consultation seeks views on a range of proposals aimed at streamlining the compulsory purchase process to make it cheaper, quicker and fairer for all parties involved and to ensure that compensation rules are more equitable. 

Compulsory Purchase Process and Compensation

Consultation by MHCLG

The Levelling Up and Regeneration Act 2023 (“LURA”) introduced a power to allow the removal of “hope value” from the assessment of compensation where it is in the public interest (via the inclusion of specific directions in CPOs). 

Section 1 of the consultation paper sets out the Government’s proposed reforms to this power. They include (but are not limited to the following): 

• An expansion of the list of CPO powers, and the associated acquiring authorities, where directions to remove hope value may be sought to include the power under section 125 of the Local Government Act 1972 (CPOs made on behalf of town and community councils by local authorities).
• Furthermore, amendments are proposed to the Acquisition of Land Act 1981 so that a decision on the confirmation of a CPO which includes a direction to remove hope value can be delegated by the Secretary of State and instead be undertaken by an inspector (where there are objections to the CPO) and by an acquiring authority (where there are no objections to the CPO). 
• In addition, the Government is considering whether a general power (to supplement the case-by-case directions made under section 14A of the Land Compensation Act 1961) could be introduced which would enable the Secretary of State in England or the Welsh Ministers in Wales to make a direction to remove hope value from the assessment of compensation for a specific category of sites where justified in the public interest (i.e. brownfield land in built-up areas, suitable for housing delivery; and land allocated for residential development in an adopted plan). 

Section 2 of the consultation paper outlines proposals to make technical changes to the CPO process and the rules for the assessment of compensation. The proposals for procedural change include (but are not limited to the following):

• Permitting the service of notices under CPO legislation to be undertaken by electronic methods.
• Simplifying the information relating to the description of land published in newspaper notices of the making and confirmation of CPOs.
• Expediting the period within which land or property, subject of a General Vesting Declaration (“GVD”), will vest in an acquiring authority so that in certain circumstances (details of which are outlined in the consultation paper) a minimum vesting period of six weeks, instead of the usual three months, will apply. 

Environmental Impact Assessment

Natural England v Andrew Jonathan Chubb Cooper [2025] EWCA civ 15

The Court of Appeal recently granted Natural England ("NE"), a permanent injunction against a tenant farmer, Andrew Cooper, to prevent him from cultivating land containing areas of archaeological interest. This decision enforces compliance with the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations 2006 (SI 2006 No. 2522) ("the EIA Regulations"), ensuring that any significant projects undergo proper environmental scrutiny.

Mr Cooper was required to apply for EIA consent to NE before carrying out any cultivation of his North Devon farm which contained Mesolithic flint tool artefacts. His application remained undetermined by NE as he failed to provide sufficient information for NE to make a decision, nevertheless he continued to plow, breaching the EIA Regulations. NE sought and obtained an interim injunction in the High Court to restrain Mr Cooper from cultivating the fields without first complying with the requirements of the Regulations. The High Court judge concluded that NE did not have power or standing to bring a claim for the permanent injunction, and explained why he considered that s.13(1) of the Natural Environment and Rural Communities Act 2006 (“NERCA 2006”) did not empower NE to do this:

• S.13(1) could only apply to something considered to be incidental to the discharge of one or more of NE's functions, not simply its "general purpose". 
• the EIA Regulations create offences for contravening specific requirements, for example, to obtain a screening decision, there is no link between NE's discharge of those regulatory functions and the obtaining of an injunction to ensure compliance with the EIA Regulations.
• Parliament chose not to include an express power for NE to bring civil proceedings, but the EA could ask the Attorney General to give his consent for the bringing of a relator action only.

NE appealed. The Court of Appeal considered whether NE had the power and standing as the regulator in relation to the EIA Regulations to obtain an injunction:

• The Court found that the word “functions” in s13(1) of the NERCA 2006 - which provided that NE may do anything that appears to it to be conducive or incidental to the discharge of its functions – was to be given a broad meaning. 
• The Court accepted that NE’s role was as regulator and controlling authority of the scheme of environmental protection created by the Regulations, concluding that NE had the power to apply for an injunction to uphold the responsibilities for the protection of the environment entrusted to it under the Regulations and to secure compliance with the Regulations, thereby discharging NE’s regulatory function under the scheme created by Parliament.
• The Court concluded that as NE is responsible for securing that relevant projects are subjected to the EIA process, and for enforcing that regime, it would have standing to seek the injunction sought to secure compliance with the Regulations. The Court therefore decided that the permanent injunction sought by NE should be granted.

This case sets a legal precedent, empowering regulatory bodies like Natural England to enforce compliance through court injunctions. This could lead to more proactive enforcement actions in the future.

Natural England v Cooper [2025] EWCA Civ 15 (16 January 2025)

Clean Power 2030 Action Plan

In December, the Department for Energy Security and Net Zero issued its plan for achieving the Government’s target of transitioning to at least 95% clean power sources by 2030, intending to tackle three major challenges: the need for a secure and affordable energy supply, the creation of essential new energy industries and the need to reduce greenhouse gas emissions. 

The plan sets out a number of reforms, including reforms to the planning system (such as prioritisation of “mission-critical projects” and updates to the NPPF), legislative reforms such as through the Planning and Infrastructure Bill and ensuring that communities directly benefit from the transition to clean energy. 

It is estimated that these plans will unlock investment from the private sector of an estimated value of £40 billion on average a year between 2025-2030 (£30 billion investment in generation assets and £10 billion investment in transmission network assets), stabilise energy prices for consumers and create thousands of skilled jobs.

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