Judicial Review and Nationally Significant Infrastructure Projects: Submission to the Ministry of Justice call for evidence on the recommendations of the independent review by Lord Banner KC

Within a short time frame, the Review conducted serious engagement with an array of appropriate stakeholders.The report is careful to outline its methods, assumptions and limitations, where relevant.2. We agree with Recommendation 1, that 'for so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIPs.'The 'Aarhus Rules' (Section VII, CPR 45) were substantially amended in 2017, requiring, inter alia, claimants to file a statement of financial means, and empowering the court to vary maximum costs liability.We endorse the views expressed in the Constitutional and Administrative Law Bar Association (ALBA) submission to the 2021 Independent Review of Administrative Law: revisiting the Aarhus Rules would be premature while the latest reforms are 'bedding in', and further reform appears to be unnecessary, as ALBA practitioners reported that the Rules are operating well in practice. 1Moreover, while the Independent Review asserts that 'there is little doubt that the cost caps... have contributed towards the proliferation of challenges to DCOs (and other planning decisions)' 2 , there is evidence that potential costs risks nonetheless continue to have a chilling effect on potential judicial review claims. 33. We agree with Recommendation 2, that 'there is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs'.As outlined in the Ministry of Justice call for evidence on this review, a more exacting statutory test for limiting standing in judicial reviews of NSIPs to those who have 'participated substantially' in decision-making process leading to the relevant Development Consent Order (DCO) decision would be ineffective at limiting challenges, difficult to define, and risk infringing access to justice. 44. We are of the view that there is a case for reviewing the DCO decision-making process more generally, particularly to ensure that the DCO examination process is made more accessible to the public.