Clean Power 2030: the role of challenges

29 April 2025

The UK Government has made it clear that to achieve its mission of clean power by 2030, a raft of reforms is needed which it is pressing ahead with at pace. The ultimate aim is to get clean power projects up and running as soon as possible, but inevitably there will be winners, losers and objectors along the way, bringing the prospect of litigation challenges.

For those investing in or promoting projects, there are two potential ways challenges could be relevant:

You want to consider challenging a public body's decision, such as rejection of an application for consent or policy changes being brought about by the Government that have a negative impact on your project; or
A project you are involved with becomes the subject of challenge.

1. Considering a challenge

What decisions can be challenged?

Any decision exercising public functions can be challenged by judicial review. These decisions will normally be taken by public bodies (e.g. Ofgem, the National Energy System Operator (NESO), the Department for Energy Security and Net Zero). Decisions may be project-specific, such as a decision to refuse an application for development consent or a regulatory restriction placed on a project, or broader such as the introduction of new policies that impact the deliverability of a project.

Connections reform

By way of example, as explained in our previous article, NESO has published, and Ofgem has now approved, its final proposals to significantly reform the grid connections process, both for new applicants and those with existing connection agreements.

Once the reforms are implemented (the implementation date is 10 June 2025), some projects will benefit from accelerated grid connection dates but a significant number of projects are expected to be deprioritised (some, in particular battery and solar projects, with little hope of connecting until at least 2035) because they do not meet both the Readiness Criteria and the Strategic Alignment Criteria (the Gate 2 Criteria). Ofgem's recent decision to approve connections reform, followed its publication of a suite of consultation documents and consultations on connections reform earlier this year, including its "minded to" decisions to approve the proposals in largely the same form as put forward by NESO.

NESO and the distribution network operators (DNOs) will be responsible for applying the Gate 2 Criteria to existing projects and making revised connection offers in accordance with the Methodologies proposed (subject to Ofgem's approval).

To assist with the implementation of the reforms, additional statutory powers to modify electricity licences and related documents (including connection and distribution agreements) have been included in the Planning and Infrastructure Bill (the Bill) which was introduced to Parliament on 11 March 2025. If the Bill is passed in its current form, those powers could only be exercised for the purpose of improving the process for managing connections to the transmission system or the distribution system, following consultation and within three years of the relevant section coming into force. The Bill would also amend the Energy Act 2023 and the Electricity Act 1989 to impose duties on NESO and the DNOs to have regard to the Government's strategic plans when NESO carries out its functions relating to the management of connections to the transmission system and when the DNOs decide how to prioritise connections (see our article for further detail on the proposed strategic plans).

This specific area of reform alone illustrates the number of different decisions that may be subject to challenge, either within the process itself (e.g. the consultation) or the final decision (e.g. revised connection offers for specific projects).

The potential for getting the reforms wrong has been demonstrated in the Government's recent acknowledgement that the solar capacities for 2031-35 set out in the Clean Power 2030 Action Plan (which will inform whether projects meet the Strategic Alignment Criteria) were misaligned and needed to be changed. Ofgem has also recommended that NESO provides additional protection to certain well-progressed projects (e.g. to projects due to connect in 2027) in addition to the protections proposed by NESO in the consulted-on methodologies.

It is worth noting that primary legislation i.e. an Act of Parliament, is treated differently and the options for challenge are more limited. However, secondary legislation (e.g. Regulations), policies, guidance, and most other specific decisions or actions can be challenged by judicial review.

How can a challenge be brought?

Judicial review is a specialised form of litigation to challenge the lawfulness of public bodies' decisions, actions or failures to act. The purpose of a claim for judicial review is to challenge the legality of the decision-making process and ultimate decision; judicial review is not an appeal on the merits against the original decision. As such, a claim for judicial review may only be brought on certain grounds.

Potential grounds of challenge

The grounds under which the acts of a public body may be open to challenge by judicial review fall into three broad heads:

Public bodies' actions can be subject to judicial review on the grounds of illegality if they are ultra vires. Ultra vires, in this sense, means the public entity having acted outside the scope of its powers. A public body's actions will be illegal if the body has exceeded or misinterpreted its powers, or has used its powers for an improper purpose.

The ground of illegality also includes breaches of the Human Rights Act 1998 (HRA). The HRA incorporates most of the European Convention on Human Rights (ECHR) into English law, and requires public authorities to act in accordance with these rights.

One such right is the right to peaceful enjoyment of possessions under Article 1 of the First Protocol (A1P1) to the ECHR. Possessions protected under A1P1 can include contractual rights, although A1P1 generally only protects existing possessions rather than future income. Protected A1P1 rights may only be interfered with or restricted where prescribed by law and as long as the interference is necessary pursuant to a legitimate aim. Where there is an interference or restriction, it must be justified as proportionate to achieve the legitimate aim, which involves looking at whether a less intrusive measure could have been used and whether a "fair balance" has been struck between the public interest and the interests of those whose rights have been restricted.

It may be possible to argue, for example, that the proposed connection reforms would interfere with certain rights in existing connection agreements, or with infrastructure that has been acquired/developed in anticipation of connection to the grid, in a manner that is disproportionate and contrary to A1P1. For its part, Ofgem has concluded that the approval of the reforms would be proportionate and consistent with its obligations under the HRA, particularly with regard to A1P1, but the assessment of whether a fair balance has been struck or whether a less intrusive method could have been used is often a question of detail (and evidence) to be considered on a case-by-case basis rather than being satisfied by overarching assertions.

This is generally the most difficult ground on which to succeed in an action for judicial review, because the threshold for showing that a public body has acted unreasonably is very high. One aspect of this ground is where the claimant can show that the decision is so unreasonable that no reasonable decision maker would have reached it (Wednesbury unreasonableness).

More commonly, a decision may be successfully challenged if the decision maker failed to take into account relevant considerations or took into account irrelevant considerations. Again looking at connections reform as an example, in its Consultation Overview and Summary Decision Document Ofgem sets out a number of statutory duties to which it is said to have had regard, including its principal objective of protecting the interests of both current and future consumers and its duty to have regard to the desirability of promoting economic growth. It also refers to the statutory duties and objectives of NESO, TOs and DNOs. If there were other relevant considerations that Ofgem did not appear to have taken into account (or irrelevant considerations that have been taken into account), this could form the basis of a ground of challenge.

Further aspects include the duty of inquiry, which requires public bodies to acquaint themselves with the relevant information needed to make decisions, or situations where entities in a similar position have been treated inconsistently without rational justification.

A decision might also be challenged under the doctrine of legitimate expectation if a decision-maker represents that they will act in a particular manner and then fails to do so. A legitimate expectation may arise where a public authority makes a clear and unambiguous representation devoid of relevant qualification in respect of future conduct. For example, it might be possible to argue that a previous connection offer by a particular date, or any previous assurances as to connection, could form the basis of a legitimate expectation. However, even if such an expectation is found to exist, it may be overridden if it is in the greater public interest.

The fairness of the decision-making process is central to this ground of review which is based on the public law duty of procedural fairness. Examples include where a decision is found to be biased or predetermined (pre-judged), or if the decision was reached in a manner that did not allow for an affected person to make representations about the decision, or (in some circumstances) the decision was given but not adequately supported by reasons.

Consultations are a key potential area of challenge under this head. The requirements of an adequate and fair consultation depend on the specific context, but formal consultations must adhere to well-established legal principles known as the Gunning principles:

consultation must be undertaken at a time when proposals are still at a formative stage and not when the public body has already decided what course it will adopt;
it must include sufficient reasons for the proposals to allow those consulted to give intelligent consideration and an intelligent response. Practically this means that the information should be clear, concise and sufficiently reasoned, and the questions asked should be ones that consultees can sensibly answer. Where relevant it can also require disclosure of data/modelling;
adequate time must be given for the response; and
the product of consultation must be conscientiously taken into account when the ultimate decision is taken.

The precise legal grounds for a challenge will depend on the terms of any final decision and the challenger's (known as the claimant) position.

For more information on consultations, and top tips for influencing policy, see our podcast.

Judicial review procedure

Judicial review is subject to its own specialised procedural rules and differs from other types of litigation in many key respects.

One of the most important practical points to be aware of is that a claim for judicial review must be brought promptly and in any event not later than 3 months after the grounds to make the claim first arose. The rule does not mean that a claimant has three months in which to bring a claim and there have been many cases in which applications have been refused even though a claim has been brought within 3 months, because the court has found that this was not prompt enough. There are additional complications if a challenge is aimed at an earlier part of the process, for example, the consultation, in which case advice should be sought urgently as waiting to challenge a final substantive decision may be too late. It is also worth being aware that different, even shorter, time limits apply for judicial review of planning and procurement decisions.

Typically, in a judicial review, the court will assess the decision-maker's decision by reference to the information that it had before it at the time of making the decision. Therefore, it is worth putting time and effort into ensuring the strongest points and supporting evidence are put before the relevant public body at the earliest possible stage (e.g. during consultation), as it can be difficult to challenge decisions later using material that was not before the decision maker at the time of the final decision.

The process for bringing a claim for judicial review is frontloaded, in that claimants are expected to file their full legal grounds and any evidence in support, which could comprise relevant documents, factual witness statements and expert evidence, at the outset of the claim. Fresh expert evidence in judicial review proceedings is rare, because of the focus on material that was before the decision maker at the time of the decision, but can sometimes be appropriate (particularly where questions of proportionality are involved).

Finally, for successful judicial review claims, remedies are discretionary and will generally involve the quashing of the public body's decision for it to be re-made. Damages are usually only available for a breach of the HRA.

For more information on challenging policy listen to our podcast.

2. What if my project is subject to challenge?

If your project is given the green light by a public body to proceed but is then challenged by someone else through judicial review, or similar, proceedings, many of the same principles set out above will be relevant. The grounds of challenge that can be used by claimants will be as outlined above, and the same procedural context will apply.

The public body which made the decision will be the main defendant named in court documents, but the consent holder who is directly affected by the claim can also participate in the proceedings as an "interested party". This allows the organisation who often has the most to lose, i.e. the promoter of the project subject to challenge, to play a full role in the defence of that litigation, including by putting forward key evidence relating to the project and the application process and making independent submissions to the court.

Interested parties can also influence the timetable for the litigation, including by requesting expedition (fast-tracking) of a case if it is particularly urgent. Without such expedition, judicial review proceedings can take 12-18 months to be resolved, or potentially longer if the case progresses up through the appeal system.

Delays to judicial reviews of nationally significant infrastructure projects have been the subject of detailed consideration and the Government recently announced reforms aimed at speeding up the judicial review process for this category of cases (which are also set to be implemented as part of the Planning and Infrastructure Bill). You can read more about this here.

Promoters of projects can take various steps throughout the application process to minimise the risk of a successful judicial review challenge, and therefore the risk of your consent being quashed. An understanding of public law principles is useful here in dealing with the public body considering your application and ensuring that these principles are being properly adhered to throughout the process.

If you would like more information on challenges, from either perspective, please contact us.

Article tags

clean power challenges energy transition UK energy

Related categories

UK Energy transition Electricity Renewable Energy

Key contacts

Nusrat Zar

Partner, London

James Wood

Partner, London

Jasveer Randhawa

Knowledge Counsel, London

Benjamin Coney Critchley

Senior Associate, London

Sarah Pollock

Partner, London and Nordic Group

Dr Silke Goldberg

Partner, London, Israel Group , Nordic Group and Ukraine Group

Kate Laidlow-Singh

Of Counsel, London

Disclaimer

The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.