Judicial review in retreat: Accelerating NSIP delivery for clean energy projects

In an announcement on 20 May 2026, the Chancellor, Rachel Reeves, revealed new measures to streamline the Development Consent Order (DCO) regime for Nationally Significant Infrastructure Projects (NSIPs). The latest proposals aim to curb judicial review challenges - which can delay projects significantly at great expense or, in a worst-case scenario, derail them altogether.

Events in the Middle East and their knock-on effects on energy prices loom large behind the announcement, as the statement from the Treasury stresses the need to get off what it calls the “fossil fuel rollercoaster”. The changes also signal a government that is trying to take decisive action on infrastructure delivery and to prove its credentials for getting Britain building. That said, the proposals will require primary legislation and, even if implemented, are likely to benefit only a limited number of projects targeting operation by 2030.

What reforms have been announced?

Parliamentary authorisation mechanism for clean energy projects

A new mechanism would allow Parliament to designate certain clean energy projects as being of Critical National Importance ("CNI"), following identification by the Energy Secretary. DCOs for such projects would effectively acquire statutory status akin to primary legislation. The House of Commons would vote both on the CNI designation and at the end of the DCO process, bringing the final decision within the remit of Parliament. The practical effect is significant: challenges would be limited to judicial review on human rights grounds only, materially narrowing the scope for challenge.

Pre-consent challenge window

Under the second headline reform, a fixed (and as yet undefined) judicial review window will open after the Secretary of State ("SoS") has published their draft decision on the DCO, but before the final decision. This will allow the SoS to consider and address the issues at an earlier stage, meaning that any similar issues later raised by the courts can more readily be dismissed. Courts would be empowered to refuse permission for claims based on grounds not raised during the consenting process.

PINS purview for smaller projects

Although detail remains limited at this stage, the government intends to allow smaller energy projects to apply directly to the Planning Inspectorate, bypassing local planning authorities, with the aim of speeding up decision-making for all energy generation projects not caught by the NSIP regime. This reflects a broader trend towards centralisation in infrastructure decision-making (consistent with initiatives such as Strategic Spatial Energy Planning), and an increasing wariness of leaving decisions in the hands of local planning committees which are frequently seen as a thorn in the side of Clean Power 2030 ambitions (note also the recent reforms to planning committees, national schemes of delegation and mandatory training for committee members).

How do these reforms impact the current judicial review landscape?

These proposals arrive at an interesting time, following recent successive wins for renewable energy developers against judicial review claims brought against DCOs, which suggest the interventions made by the various independent reviews and by the Planning and Infrastructure Act 2025 ("PIA") over the last year are already starting to have an effect.

Following Lord Banner KC's Independent Review into Legal Challenges against Nationally Significant Infrastructure Projects, published in October 2024, the government implemented some of the review's recommendations in order to speed up the timeline for NSIP delivery. One of Lord Banner's key proposals was to reduce the number of "bites of the cherry" claimants had recourse to, which was resulting in lengthy and costly proceedings. Even when claims were effectively a form of protest and were later found in favour of the NSIP developer, the process itself could be so costly that the delays were putting the whole project in jeopardy. By the government's calculations, legal challenges were taking on average a year and half to be resolved (in many cases running to more than two years) and had taken up 10,000 working days of court time. The full extent of these problems is hard to quantify, but it has been evident that the knock-on effect has seen risk-averse funders deciding to take their investment elsewhere.

The reforms were much welcomed by the industry. Under the old system, claimants had the right to a paper hearing, followed by an oral hearing, followed by a right of appeal to the Court of Appeal if their claim was unsuccessful at the High Court. However, following the introduction of the PIA, both the paper hearing and the right of appeal have been removed (the latter in the event that the case is "totally without merit"). We have seen this put into action recently when the judicial review brought against the Stonestreet Green Solar DCO was thrown out by the High Court, having met this "totally without merit" test, leaving the matter dead in the water with no right of appeal. This is the first use of the newly implemented section 13 of the PIA, a provision which was introduced specifically to reduce the amount of time given over to meritless claims, and which did in this case bring the matter to a conclusion within just four short months, a vast reduction on the one-and-a-half year average.

It is worth noting that the judicial review only brought three grounds of claim and was therefore a relatively simple case in comparison to other NSIP challenges, and that solar projects are by their nature not likely to engender as many grounds of claim as other NSIPs (nuclear, rail etc). It therefore remains to be seen how wide an impact this new provision will have, but it is a step in the right direction.

In a further vote of confidence for last year's reforms, this week's announcement arrives hot on the heels of the Court of Appeal's decision this week, in relation to the claim brought against the London Luton Airport Expansion Development Consent Order 2025, to refuse permission to appeal because the appellant was out of time, in a rigorous application of the procedure rules. This is a direct result of the amendments made in 2025 to the Civil Procedural Rules (CPR), which reduced the deadline for the appellant to file their notice of appeal to seven days.

Our thoughts

The two recent cases (Stonestreet Green Solar and Luton Airport) appear to indicate the start of real progress in speeding up infrastructure delivery. These are encouraging signs that policy does matter, and if the government truly intends to achieve its renewable energy objectives, it has the levers of power to make that change happen. These reforms also show that the government is increasingly taking decisions away from local authorities where critical infrastructure is concerned, emphasizing the importance of such projects. This will no doubt raise the usual questions and arguments about democratic values and empowering localities to make the decisions that affect them.

Overall, while many of the latest proposals still require legislative implementation, they reinforce a consistent policy objective: improving certainty and timelines for infrastructure delivery. If delivered effectively, that should be a positive signal for project developers and investors alike.