Infrastructure Planning Blog

This week's blog covers a wide variety of infrastructure planning news from the past week:

• The government has announced an intention to introduce further restrictions on judicial review;
• A challenge to the Luton Airport Development Consent Order (DCO) was cut short due to not meeting new stricter filing obligations;
• The government is allowing local authorities to be able to recover costs of participating in DCO applications;
• An offshore windfarm DCO decision made last week is analysed; and
• The first water project DCO application is made.

Further judicial review discouragement

The Chancellor announced on Wednesday 20 May that the government is going to introduce two further reforms to discourage judicial reviews (JRs) of certain DCO decisions. I managed to sneak into the room at the UKREiiF conference in Leeds to hear her announcing them. This policy paper sets out what is proposed.

The first reform is to introduce Parliamentary approval of certain as-yet-unspecified energy DCOs of 'critical national importance', likely to include nuclear and offshore wind, so that they will not be able to be challenged in the courts other than on human rights grounds.

It is important to note that this is not the confirmation order process along the lines of the amendment suggested by Lord Hunt – it thankfully does not allude to recreating that onerous process. It appears the intention is that the Parliamentary approval would take a matter of days, not months which is to be welcomed.

The second, to apply more generally, is to issue a draft decision before a JR challenge period. If a challenge is made then the Secretary of State (SoS) can amend the decision to address it before finalising it. A further JR period would follow but new issues could not be raised - presumably unless they related to the changes made.

Both measures are likely to be helpful to some of the mega projects, though the details are eagerly awaited. The government’s ambition on JR is to be lauded, and reflects a clear view that further changes, including through primary legislation, are necessary.

This was in the same week that the Court of Appeal dismissed an appeal against an unsuccessful challenge to the grant of the Luton Airport DCO because the challenge was made late.  The relevant window for challenge was reduced from 21 days to seven days from October last year pursuant to Lord Banner's recommended reforms, but this one was made after the change; 16 days after the High Court judgment on 8 December 2025.

The judgment of the Court of Appeal can be found here, and our coverage of it is available here. The challengers sought an extension of time but didn’t get one.

Local authority charging

For most of the lifetime of the DCO regime, it has been at applicants' discretion whether to pay for third parties' costs of engaging with them and many did to a certain extent.

From 1 April 2024, eight selected public bodies became able to charge applicants for certain services related to dealing with DCO applications: the Coal Authority, the Environment Agency, the Health and Safety Executive, Historic England, the Marine Management Organisation, National Highways, Natural England and Natural Resources Wales, i.e. whether applicants like it or not.

From 8 June this year, this is to be extended to host local authorities via the Infrastructure Planning (Fees) (Amendment) Regulations 2026, i.e. only those authorities where the order limits extend into their area.

As with the existing eight bodies there are some restrictions on what can be charged:

• the charges cannot exceed the costs actually incurred, which must be reasonable
• the authority must publish a charging schedule in advance

When the earlier charging ability was introduced, guidance accompanied it, and this will also apply to local authorities.  It suggests that 'fees can be charged in relation to any advice, information or other assistance (including a response to a consultation) provided in connection with an application or proposed application'.

This will be interesting because the eight existing authorities generally behave neutrally towards DCO applications, but local authorities are sometimes implacably opposed to them.

Latest DCO decision

As two offshore windfarm DCOs were decided on the same day last week and we only reported one, here is a report of the other one.

This application was for the Dogger Bank South offshore windfarm by RWE, two areas of up to 100 offshore wind turbines each, DBS East and DBS West, over 100km east of the Yorkshire coast.

The application was examined by a full Examining Authority (ExA) of five inspectors.  The inspectors recommended that the DCO be granted but only if either strategic or project-specific compensation for effects on guillemot and razorbill was secured.

The SoS agreed with the ExA that landscape and visual, onshore historic environment and land use and agriculture effects carried great negative weight, but also that the need for the project carried very great positive weight. The ExA’s use of 'little' instead of 'limited' and 'very great' instead of 'substantial' was addressed with reference to National Policy Statement EN-1.

The only impact where the SoS disagreed with the ExA on weight was human health - the SoS went for neutral where the ExA had ascribed little positive weight.

Wake effects (i.e. new windfarms using up some of the wind that existing or earlier-consented windfarms were intending to use) were an issue again. A requirement was added to the DCO to require a 'wake effects plan' for each of the array areas to be approved by the SoS before work could commence, or that the other windfarm developers agree that mitigation for wake effects is agreed. The SoS amended the wake effects requirement proposed by the ExA to add an obligation for early consultation with nearby windfarm owners.

On ornithology, there was a focus on so-called 'Hotspot A' near the southern edge of one of the arrays due to the presence of sand eels. Even though the Applicant and the Marine Management Organisation agreed on the wording of a seabird condition in the Deemed Marine Licences forming part of the DCO, the SoS added a further obligation to monitor for indirect effects.

Not something I'd come across before, but Natural England published a report in September 2025 on the effects of offshore windfarms on migratory bats. Migratory bat monitoring was added to the 'in principle monitoring plan' as a result, a variation on calling it an outline plan.

The SoS agreed to a seven-year commencement period, longer than the usual five, because of the additional uncertainty of having essentially two separate windfarms in the DCO.

On habitats, the project demonstrated imperative reasons of overriding public interest (IROPI), allowing it to go ahead despite five potential adverse impacts on three international sites. Compensation was a mixture of a monetary contribution and the construction of artificial nesting sites, plus measures to reduce guillemot predators at sites as far away as the Isles of Scilly and Shetland. We are beginning to move away from project-specific compensation to strategic compensation on these issues but haven't fully got there yet.

First water DCO application made

And finally, the first application for a DCO to authorise a water project was made on 21 May, more than 16 years after the DCO regime first came into force, for the Hampshire Water Transfer and Water Recycling Project, made by Southern Water.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.