How to challenge a development consent order

The Planning Act 2008 (PA) introduced a consenting regime ?for nationally significant infrastructure projects (NSIPs). NSIPs include a variety of typically larger projects, ?such as airports, generating stations, and, most recently, geological disposal facilities for radioactive waste. ?The PA also provided for legal challenges to be made to development consent orders (DCOs) for NSIPs. 

However, over five years have elapsed since the provisions in the PA came into force, and not one legal challenge to the granting of a DCO has yet been successful. This practice note sets out some procedural pointers on how to make sure any challenge gets off on the right foot.

Judicial review

Although the NSIP regime is specialised, section 118(1)(a) PC provides that any challenge to a DCO must be ‘brought by a claim for judicial review’ for a court to entertain the proceedings, so the usual judicial review grounds of claim apply to any challenge. 

However, it is important not ?to lose sight of the fact that although the claim has to be brought by way of judicial review, there are several important procedural differences to ordinary ?judicial review claims. 

Timeframe for challenges

It can be tempting to get a challenge in early; however, the effect of section 118(1)(b) is that you cannot challenge before the publication of the DCO, or the statement of reasons for making the DCO, if that comes later. ?This avoids premature and potentially unnecessary challenges made without the ?full reasons for the DCO being available.  

But take care not to ?challenge too late. Following ?its amendment by the Criminal Justice and Courts Act 2015 (CJCA), section 118(1)(b) PA now provides that for claims brought on or after 13 April 2015, a court only has jurisdiction to hear a challenge to the granting of a DCO if the claim form is filed ‘before the end of the period of six weeks beginning with the day after the day on which the order is published’. Previously, time began to run on the day the DCO was published. 

R (Williams) v Secretary of State for Energy and Climate Change [2015] EWHC 1202 (Admin), and the combined cases of R (Blue Green London Plan) v The Secretary of State for Environment, Food and Rural Affairs and R (Southwark LBC) v The Secretary of State for Communities and Local Government [2015] EWHC 495 (Admin) are all recent, high-profile examples of challenges to the granting of DCOs that were lodged one day too late. ?The courts do not have the power to extend the time for filing the claim form so in each case the result was dramatic: the courts did not have jurisdiction to hear the claims. 

It is never good practice to aim to file a claim form on the final day for doing so. Six weeks is a very short period for bringing together and setting out a complex claim, but last minute hiccups and unforeseen circumstances can easily lead to the deadline being missed. The potential consequences mean that it’s not worth taking the risk: always aim to have everything ready to go at least two days before the actual deadline. ?If in any doubt, seek advice again at the earliest opportunity. 

Procedural points

In Williams (which was not concerned with the CJCA amendments), it was held that a DCO put onto the Planning Inspectorate’s website on Friday 12 September 2014 was ‘published’ on that date, such that time started to run on that date. ?It followed that (under the old formulation) the final date for ?the claim form to be filed was Thursday 23 October 2014. If they had been in force at the time, the CJCA amendments would have pushed that on a day to Friday 24 October 2014 and the challenge would have been in time. 

Procedural points can be lost in the detail of the substance of any challenge, but Williams and Blue Green are clear examples of how procedural failings can be fatal to a claim before any consideration is even given to the substance. The moral of this practice note? Better a good case a day early than a great case a day late. SJ

Jack Connah is a barrister practising from Francis Taylor Building @FTB_law www.ftb.eu.com