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In an article in the Environmental Law Review (Env. L. Rev. 2025, 27(3), 224-230 entitled “Nationally significant infrastructure projects and the Planning and Infrastructure Bill: a move in the wrong direction”) Dr Joanne Hawkins argues that the Planning & Infrastructure Bill (“the P&I Bill”) is a move in the wrong direction in respect of NSIPs.
The article focuses in particular on: (i) the proposed removal of the legal requirements for pre-application consultation for NSIPs and (ii) the reduction in the number of opportunities to obtain permission to apply for judicial review in NSIP challenges as a result of the Banner Review: see Blog 47.
Dr Hawkins notes that pre-application consultation under the Planning Act 2008 (“the 2008 Act”) “aims to ensure that, early on, a range of voices, with different insights and experience, are heard and incorporated while the project is still evolving. The public, for example, are given the opportunity to engage with the developer to find out more about the project and how it might impact the local area. The public can ask questions, raise concerns, attend meetings and raise any issues over how the applicant is carrying out the consultation process itself”.
Dr Hawkins notes that the 2008 Act currently imposes “a legal duty to consult reflecting the participatory principles of the Aarhus Convention …” and that “[u]nder the proposed changes in Part 1 of the Planning and Infrastructure Bill, such a right is quite simply eliminated by the removal of the duty to consult”.
Dr Hawkins draws attention to the proposed reforms reflecting “a move which feeds into a rhetoric of "challenge culture', a rhetoric currently employed by the government in the context of major infrastructure. This positions procedural and administrative law as an obstacle to major infrastructure development and echoes the neglect of, and even hostility towards, participation we have seen elsewhere in the environmental law context”. On this she cites Maria Lee "The Aarhus Convention 1998 and the Environment Act 2021: Eroding Public Participation' (2023) 18(6) Modern Law Review 756 and Elizabeth Fisher "Executive Environmental Law' (2020) 83(1) Modern Law Review 163.
Is the P&I Bill – very soon to receive Royal Assent and become an Act - a wrong turn in these regards? I offer a few thoughts.
1. I have a very different view from Dr Hawkins on the validity of concerns about challenge culture. In a recent paper I delivered to the Oxford Joint Planning Conference (“JPLC”) entitled “Ten reasons why Labour will fail to build 1.5 million new homes revisited: how are they doing and what else could be done to help deliver this goal?“ (which is to be published in a forthcoming special edition of the JPL) I argue that the growth of NIMBYISM and objection in the planning process is one of the ten reasons Labour will not build 1.5 million new homes by 2029. In an earlier paper I had argued that (https://www.linkedin.com/posts/james-maurici-k-c-29b16524_10-reasons-why-labour-will-fail-to-build-activity-7267946556090105856-J4cw):
“33. The UK is a country full to the brim with NIMBYs. People object to everything and anything these days. One that struck me recently was “GARD” “Group Against Reservoir Development”. I am sorry but how can you be against reservoir development?
34. Every single housing scheme attracts objection – often in very large numbers. The Internet and social media have in my working lifetime revolutionised the way opposition to development is organised, pursued and conducted. The use of AI is likely to further move things on. AI already seems pretty good at writing long, decent looking, objection letters.
…
36. But it is not just the number of NIMBYs and the number of objections made to development, some of which are truly bizarre, that is the issue. Objectors are not just more organised these days they can be well-resourced. They regularly seek Rule 6 status and lengthen major inquiries
…
37. I am not suggesting that objection should be prohibited rather just pointing out that it is a major barrier to Labour’s ambitions. These days we hear a bit more about YIMBYs; but we still see very [few] of these people, especially at inquiries.”
Revisiting this theme in my JPLC paper I say:
“40. NIMBYISM is not, of course, a uniquely British phenomenon. There is a great article by Kath Snell (20 July 2025) in the Western Australian entitled “What are NIMBYs afraid of? Fear is not a reason to reject housing developments”. She bemoans the fear which she describes as “visceral” and “loud” and says:
“[a] safe home is necessary before anyone can build a good life. When people have that foundation of stable, affordable housing, they can contribute meaningfully to their communities. And it eases costs and pressure on health care, policing, and the justice system.”
41. This chimes with Caitlin Moran’s piece in The Times last year saying that:
“It's easy to be nimby when you think some new development is requisitioning a much loved field — the field with all your childhood memories in it – to house other people’s families. But when you realise it’s your children or grandchildren that would live there, then how valuable are your childhood memories? Are they worth more than other people’s futures? Are they worth more than someone’s first home?”
42. In the UK, and some other western democracies, the right to object to new development is seen as almost sacrosanct – a human right in and of itself. A world view that is supported by the Aarhus Convention and in particular its second pillar which is focussed on public participation. In contrast there is no established human right to a home in the UK. Article 8 of the European Convention on Human Rights (“ECHR”) protects your rights in respect of your existing home but it does not give you a right to housing. The right to a home is a social human right not protected by the ECHR or the Human Rights Act 1998. It is a strange world we live in where in law the right of existing home owners to object to development near to them carries greater force than the right of all people to a decent home.”
In addition, I argue that legal challenges will be another reason that Labour will not meet its target: “ … There is an increasing trend that I have seen of NIMBYs carrying on the fight even once planning permission is granted and the legal challenge to it failed … Delay is always the objectors’ friend) and note that so far, the focus of the Government has been exclusively on limiting challenges in the 2008 Act context not in relation to other planning decision-making e.g. new housing.
2. But just because I come at this from a very different perspective to Dr Hawkins does not mean that I necessarily disagree with her concerns about the P&I Bill:
“16. Recommendations 3 and 4 are considered in parallel. While there was some support within NIPA for reducing the number of bites of the cherry for permission from three to two there was among others a sense that the written permission stage is important and should not be removed. There was some support for raising the permission threshold but there are difficulties about the formulation of this and concern about whether it would really make much of a difference.
17. The concern around there being three bites of the cherry for permission is focussed on:
a. the delay that going through potentially three permission stages clearly causes;
b. the fact that few challengers give up after a paper refusal in the High Court or indeed until all “bites” have been fully exhausted; and
c. given the scale and complexity of NSIPs there is a strong tendency for courts just to grant permission almost regardless, and so allow the matters to be considered further.
18. Given the issues outlined above, NIPA proposes that consideration be given to a more radical alternative proposal.
19. There is no permission stage with some statutory reviews (e.g. challenges under the Transport and Works Act 1992 and the Harbours Act 1964, and challenges to compulsory purchase orders under section 23 of the Acquisition of Land Act 1981) and this used to be the position on s.288 challenges under the Town and Country Planning Act 1990 (“the 1990 Act”). No difficulties have arisen under those two other infrastructure planning regimes as a result. NIPA would therefore propose:
a. There be no permission stage for challenges to DCOs, instead all cases proceed following filing and service of detailed grounds from the defendant and interested parties, at first instance, to a substantive hearing as soon as possible, within a structured timetable. The imposition of a timetable, by the court, would reduce the level of uncertainty (suffered by NSIP promoters currently) and would enable more
effective re-evaluation and restructuring of project programming and financing in response to the delay caused by the legal challenge. The production of a timetable could be mandated by the CPR (or could be an output of the case management conference (‘CMC’) if that process were adopted and the permission stage removed – see response to Recommendation 7 below). Overall, it was felt that these reform proposals could be expected to lead to a sooner final resolution in many cases, potentially saving approximately 3 months.
b. If a challenge is truly hopeless there remains the ability for a defendant or interested party to apply for a strike out/summary judgment, but proceeding to a full hearing may in the end still be more efficacious.
c. The recommendation (see Recommendation 7) for a CMC could be taken up and take place following detailed grounds and a fixed number of weeks before the date set for the full hearing itself”
This is a fully Aarhus compliant solution and, in my view, likely to yield better results.
This blog post was written by James Maurici KC.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.
