The Planning and Infrastructure Act 2025 (the Act) received Royal Assent on 18 December 2025 and has been heralded by the government as a tool for slashing delays and costs to get homes and critical infrastructure built faster. Amongst the wide-ranging measures in the Act are provisions aimed at ensuring that tactical and frivolous judicial review challenges do not derail development.
The two principal changes are:
- streamlining the process for NSIP related challenges; and
- automatic extensions to the lifetime of planning permissions and reserved matters approvals which are subject to legal challenge.
Streamlining of legal challenges to NSIPs
The Act introduces two key changes to streamline the process for NSIP related challenges.
Firstly, the Civil Procedure Rules (CPRs) will be updated to require applications for permission to apply for judicial review of national policy statements or orders granting development consent to be decided at an oral hearing. This will remove the ability for the permission to be determined on the papers as currently provided for under CPR 54.12. The updates to the CPRs will also allow a judge to certify such cases as ‘totally without merit’ at the oral permission hearing.
Secondly, the Senior Courts Act 1981 will be amended to prohibit an appeal to the Court of Appeal where the High Court determines at an oral hearing that such an application is totally without merit.
These provisions give effect to the recommendations of Lord Banner in his independent review of judicial review proceedings in relation to NSIPs (the Banner Review). He raised a concern that under the current regime applicants have “three bites of the cherry” to obtain permission, namely the paper permission stage, the option to renew to an oral permission hearing, and the right of appeal to the Court of Appeal. Once the CPRs are updated, the paper permission stage will be scrapped, and instead applications will proceed straight to an oral hearing. Lord Banner noted that “each bite” extends the duration of a judicial review claim by several weeks at minimum and several months in some cases, and with it the construction costs of the project.
At present it is open to the High Court to determine on the papers that a NSIP claim is totally without merit. Given that the paper permission stage will be removed, the provision allowing a judge to determine at the oral hearing that a claim is totally without merit is largely a consequential amendment. However, it seems that the existing power to determine on the papers that a NSIP claim is totally without merit is seldom used.
The Banner Review refers to 11 NSIP cases where permission was refused on the papers. Of those: 3 were refused permission again at an oral permission hearing; 4 cases were granted permission at an oral permission hearing in respect of some grounds; 1 was ordered to proceed to a rolled-up hearing; 1 oral permission hearing decision was pending at time of the report; and 2 permission refusals were not renewed. Even if those two cases which were not renewed were classed as totally without merit, that represents a very small percentage of the total number of challenges. The Banner Review makes clear that it is not “an expert statistical analysis” and is based on a “very small” sample size of only 34 challenges made between the Planning Act 2008 coming into force, and October 2024. Nonetheless, the proposed amendments to the Senior Courts Act will only meaningfully streamline the judicial review process if judges use the power to certify a case as totally without merit with more muscle and more regularity.
Extension of time in the event of legal challenge
At the moment where the grant of planning permission or deemed grant of planning permission is subject to legal challenge, the period for implementation is extended by one year (s. 91(3B) TCPA 1990). However, that provision has two major limitations: firstly, it affords no extension of time where the challenge relates to the grant of outline planning permission or approval of reserved matters and secondly, the extension period is limited to one year, even in circumstances where the determination of the challenge extends beyond this.
The current extension provisions apply where “any proceedings are begun to challenge to the validity” of a detailed permission and no express provision is made for further extensions in the event of continued litigation to the Court of Appeal and Supreme Court.
From 18 February 2026 amendments will come into force which address these gaps. In summary:
- Where a person is given permission by a court to challenge the validity of a planning permission, or a deemed grant of planning permission, the period for implementation is extended by one year.
- Where permission is given to appeal to the Court of Appeal the implementation period is extended by a further one year.
- If permission is given to appeal to the Supreme Court the implementation period is extended by a further two years.
A new section 92A of the TCPA 1990 will also come into force in February 2026, which provides for an extension of time where a legal challenge is brought in respect of the grant (or deemed grant) of outline planning permission or the approval of reserved matters. The same extension periods above will apply to the period before which a reserved matters application must be made or the outline consent implemented.
In all cases the extensions in relation to the Court of Appeal and Supreme Court only apply to challenges following a full hearing, and do not apply to the refusal of permission or leave.
These are welcome amendments that level the playing field for detailed and outline consent and will help remove the motivation for challenges aimed at ‘timing out’ unimplemented developments by locking them up in the uncertainty of litigation.
