Ask anyone trying to build in London what they fear most and it’s rarely the planning committee. It’s what can happen after the permission: the challenge that lands in the High Court at the eleventh hour and puts the whole scheme on ice.
Last week, BusinessLDN responded to the Ministry of Justice consultation on extending judicial review reform beyond nationally significant infrastructure projects. The title is a mouthful. The idea is simple. Parliament has already given the biggest national projects a faster, firmer route through the courts. The question now is whether the rest of the pipeline should get the same treatment.
For London, that’s where the action is. Most of what the capital needs to build isn’t “nationally significant” in the legal sense. The homes promised by the refreshed London Plan, estate regeneration, new schools, depots and substations: nearly all of it goes through ordinary planning, and nearly all of it carries ordinary judicial review risk.
Here’s the thing about that risk. Challenges rarely succeed; the courts have been holding the line for years. But a challenge doesn’t need to win to do damage. It only needs to exist. While it does, contractors demobilise, lenders reprice, supply chains book other work, and a delivery team burns money standing still. A major promoter with a national balance sheet can absorb that. A mid-sized housebuilder or a borough regeneration scheme often can’t, and some walk away before they start. That’s the ease of doing business problem in one line: the risk falls hardest on exactly the projects London needs most of.
The reforms on the table tackle it the right way. Not by shutting anyone out of court, which never survives contact with a judge, but by changing how long the uncertainty lasts. One prompt decision on whether a claim is arguable. An early end for claims that are totally without merit. Nobody loses the right to be heard; everybody learns sooner where they stand. Extending that to larger housing schemes, as BusinessLDN has argued, would mean more homes built in the capital, sooner, at lower cost. Given what London boroughs currently spend housing families in poor temporary accommodation, that’s not an abstract saving.
Government could go one better. It has accepted in principle that promoters of critical schemes should be compensated for the cost of delay when a challenge fails. Put a date on that commitment. It moves the cost of a hopeless claim off the project’s balance sheet, and it lets a board commit while the court does its work. No ouster, no new legal doctrine, available now.
There’s a bigger prize here too. These rules are set nationally, but delivery is local. As more powers pass to city regions, London included, the opportunity is to put delivery levers next to delivery accountability: a capital that can move at the speed of its own pipeline, inside one coherent national framework rather than a patchwork of local ones. Get that right and reform of the courts becomes part of a much larger story about who gets to build, and how fast. But that’s a subject for another piece.
For now, here’s the test I’d apply. A promoter should be able to tell its board, and its bank, the date on which challenge risk ends. Today that date is a guess. If these reforms make it firm and bring it forward, they’ll do more for building in London than any number of ambitions in any number of plans. Judge them by that.
Read BusinessLDN’s response to the Ministry of Justice’s consultation on extending recent judicial review reforms for Nationally Significant Infrastructure Projects here.