Inside Infrastructure: Judicial review and UK major projects

Managing the risks of judicial review challenges to major infrastructure projects

The UK continues to be regarded as a highly attractive jurisdiction for infrastructure investment, supported by the Government’s 10‑Year Infrastructure Strategy, a £725 billion funding pipeline, a sophisticated financial ecosystem and initiatives such as the Contracts for Difference and Regulated Asset Base models. In recent years, however, there has been a notable rise in judicial review challenges brought by activists, interest groups and NGOs, creating risks for the successful and timely delivery of major infrastructure projects.

In this blog post, we consider this trend and potential mitigation strategies for developers and investors who are increasingly having to factor judicial‑review‑related delays into their delivery programmes.

Major infrastructure projects as a target for judicial review challenges

Judicial review claims challenge the lawfulness and fairness of public body decisions. Several features distinguish them from ordinary litigation: claimants must demonstrate a “sufficient interest” to bring the claim; successful challenges usually result in an order quashing (setting aside) the decision and/or compelling or prohibiting a public body’s action rather than damages; and they may only be brought on specific grounds, such as on the basis that a public body has acted beyond its powers, acted irrationally (for example by failing to consider relevant matters) and/or failed to follow a fair procedure.

Major infrastructure projects depend on a series of key public body decisions—including planning permissions, development consent orders (DCOs), the design and award of Government support schemes (such as the Contracts for Difference or Regulated Asset Base models), and various licences and permits—and these decisions often become the focal point of judicial review challenges. While judicial review risk is inherent in any Government decision affecting large projects, decisions relating to environmental impacts are particularly vulnerable to challenge due to the complex policy judgements and evidence-based assessments they require.

A recent Government report found that legal challenges concerning DCOs have spiked, with 58% facing challenge, often from climate or environmental activists. For example, in both R (Boswell) v Secretary of State for Energy Security and Net Zero and R (Boswell) v Secretary of State for Transport, the Claimant challenged DCOs for a carbon capture, utilisation and storage project and a highways project respectively, alleging flaws in how greenhouse gas emissions were assessed or considered. 

Both claims ultimately failed, but each took over a year to resolve.

Some challenges do succeed, resulting in major developments being delayed or abandoned entirely. In R (Finch) v Surrey County Council, which concerned the grant of planning permission for an onshore well site, the Supreme Court quashed the Council’s decision on the basis that the developer’s Environmental Impact Assessment failed to consider Scope 3 emissions (read more here), and the project is now on hold. More recently, a climate charity successfully challenged a Ministerial decision to approve a 90‑megawatt data centre in Buckinghamshire on the basis of inadequate consideration of the project’s climate and environmental impacts, leading the Government to concede that the approval was flawed and should be quashed.

Overall, only a relatively small proportion of judicial review claims relating to major infrastructure projects succeed (since 2008, only 4 out of 30 challenges to a DCO have been upheld). Nevertheless, with each challenge taking on average 1.4 years to conclude, they can disrupt financing and construction milestones, extend delivery timelines and impact supply chains and investor appetite.

Recognising the significant adverse impacts these challenges can have on critical infrastructure projects, the Government has introduced changes to the judicial review regime for Nationally Significant Infrastructure Projects (NSIPs) aimed at accelerating the process and reducing delays. These changes are contained in the Planning and Infrastructure Act 2025, which received Royal Assent on 18 December 2025. However, the provisions reforming judicial review for NSIPs will require further commencement regulations before they take effect (for a deeper dive into the proposed changes, read our blog post here).

In the meantime, there remain other steps that developers and investors can take to minimise the disruption caused by judicial review challenges.

Mitigating the risks

Although litigation risk crystallises at the point a public body makes a relevant decision, a project’s vulnerability to challenge is often shaped much earlier in its lifecycle. Adopting strategies at the planning stage that reflect recent challenges and Court decisions can ultimately improve the resilience of project consents and reduce the risk of judicial review.

For example, to mitigate risks associated with planning and DCO decisions, developers should consider aligning their proposals closely with existing policy (including net zero initiatives) to demonstrate how the project supports national objectives, while being transparent about adverse impacts and mitigation measures. This may reduce the risk of governmental consent being deemed “irrational”. Following the Finch judgment, developers should also consider whether their project requires an assessment of Scope 3 emissions in the Environmental Impact Assessment, including emissions associated with “downstream” products. The Government has since issued new guidance setting out expectations for how Scope 3 emissions from offshore oil and gas projects should be assessed.

Separately, developers may wish to consider whether meaningful engagement with stakeholders beyond statutory planning and DCO requirements would be beneficial. This may include engagement with communities and NGOs, as well as transparent communication about environmental impacts and any strategies adopted to mitigate challenge risk. Where a challenge appears likely, developers may also want to proactively factor potential judicial review proceedings into project timelines, identifying key risk points and preparing contingencies to mitigate delays, cost exposure and project uncertainty.

Finally, if a project becomes the subject of a judicial review challenge, there may be steps that developers or other stakeholders can take to mitigate its impact, such as participating in proceedings as an intervener (with the Court’s permission) or as an interested party, and/or seeking an expedited timetable.