The Power of Speeches: Council House-building, JR Changes & s.73B

It is early September. Schools are back. Parliament is back, and email traffic has gone from a trickle to a flood… oh, and it’s raining!*

Given that most of us are still adjusting to a world where everyone is back at their desks and things like bedtime, and homework, are important again**. I thought I would use this blog to ease us back into things gently.

As such, I am going to look at three speeches given at three different events over the last week:

1. A speech given by the Chancellor on 7 September;
2. Matthew Pennycook’s speech at the Housing Community Summit in Liverpool on 9 September; and
3. Some comments made by a spokesperson from MHCLG at the HBF Planning Conference on 9 September

To see if we can glean anything about what the next few months may hold for the planning system. An attempt to read ahead, if you like.

Judicial Review Changes for Infrastructure

Perhaps the biggest news for the planning lawyers amongst us was the Chancellor’s speech on Monday, which contained the following paragraphs:

There are several interesting nuggets of news in here.

Firstly, the Chancellor confirmed that the government will be taking forward the changes to judicial review and statutory challenges for major infrastructure projects that it consulted on back in July.

Which is interesting, as the Ministry of Justice hasn’t actually published the government’s response to that consultation as yet.

By way of a reminder, the consultation proposed extending protections, that currently only apply to NSIPs, to major infrastructure projects and strategically significant developments granted under the Town and Country Planning Act 1990 and/ or the Transport and Works Act 1992.

Those protections are:

• removing the permission stage and removing the right of appeal for cases which are deemed totally without merit at the oral permission hearing
• Changing the CPR to formally designate these challenges and Significant Planning Court Claims
• Changing the CPR to encourage the use of case management conferences following the grant of permission to apply for judicial review
• Extending the tighter procedural timescales set for progressing NSIP claims to claims against major infrastructure projects

The consultation only closed on 27 August 2026, which makes the Chancellor’s announcement one of the quickest government decisions I have seen for a while.

They were also pretty quick off the block when it comes to “ending the consultation culture” in government.

On the same day as the speech, the Cabinet Office sent a letter headed “The Simplification and Agency of Government” to all ministers.

The letter states:

All of which suggests that we might get fewer planning consultations moving forward, which, actually, looking at the state of my inbox right now, might make for a nice change of pace…

The letter also doubles down on the commitment to reforming the judicial review process, with a view to reducing the opportunities for legal challenges to large scale infrastructure projects. Stating:

It does, however, go further than the Chancellor’s speech – as it indicates that the Government is seriously considering some of the more…interesting…proposals for reforming the judicial review process.

Back in May, a policy paper was published, that put forward two further options for limiting the availability of judicial review against major infrastructure decisions.

1. A mechanism for parliamentary authorisation for projects of “critical national importance” whereby parliament would vote a) to confirm the project was of “critical national importance” and b) to approve the final DCO – with a view to giving the final DCO similar protections against legal challenge as acts of parliament; and
2. Introducing a specific “challenge” window for DCOs, in which once a draft decision had been published, a fixed challenge period would open during which any judicial reviews must be lodged. The Secretary of State would then have some time to consider and address any issues raised before amending a final DCO. The idea being to give the courts would have a clearer basis to refuse permission or relief – in respect of challenges that were ultimately pursued on the same grounds. Permission would then be refused for a judicial review to proceed on any issues not brought up during the consent process or challenge window.

The policy paper was not a consultation. Indeed the July consultation expressly stated that the proposals sat outside of that process as:

“These reforms raise important practical and legal questions on which the Government
will separately engage with developers, investors, legal practitioners, local authorities,
and affected communities as the policy is developed and implemented. The
Government will also be engaging the judiciary to consider the impact of these
proposals on the administration of justice“.

It looks as if that engagement may now have happened, as it looks as if the parliamentary authorisation route (at least) is going to be taken forward.

So, I guess that was quite an influential speech, as speeches go…

Council Housebuilding & Affordable Housing

Whilst the Housing Minister’s speech at the Housing Community Summit on Wednesday didn’t reveal any new policies or announcements, it is nonetheless interesting for a couple of reasons.

Firstly, it expressly acknowledged just how challenging the current economic environment is for developers generally, and providers of affordable housing in particular, with the Minister stating:

and also that the funding awarded through the first stage of the Social and Affordable Housing Programme fell far short of the funding that Councils and Registered Providers actually bid for.

Secondly the speech walks an interesting line between confirming MHCLG’s commitment to reinvigorating Council housebuilding, and reassuring registered providers that they would still be supported. Stating, repeatedly, that the two routes of delivery were meant to complement each other and not be in competition; and emphasising the role and importance of partnership working within the wider sector:

Whilst also taking a moment to draw everyone’s attention to the National S.106 Affordable Housing Engagement Guidance that MHCLG launched in late August.

All of which indicates that MHCLG is trying to increase affordable housing delivery through every route possible, but with limited funding available to do so. Which is possibly not that surprising given current economic constraints.

Those economic constraints might explain why the speech also appears to reveal a subtle shift in ambition.

The Government no longer appears to be promising the greatest affordable housing boom since the post-war era, but rather “the biggest council housebuilding programme since the post-war boom ended in the early 1980s.”

Which, whilst still a reach given current levels of delivery, does seem a little more manageable…s.73B Incoming?

And last, but by no means least, according to reporting from Planning Resource, the secondary legislation and guidance needed to enact s.73B of the TCPA might be making an appearance before the end of this calendar year.

The comments were made by a MHCLG spokesperson at the HBF conference, which was held in Birmingham on Wednesday.

s.73B was introduced by s.110 of the Levelling-Up and Regeneration Act 2023, and was intended to make it slightly easier to amend planning permissions in ways that required tweaks to the description of development as well as changes to conditions.

It gives Councils the power to permit amendments to permissions that are not “substantially different from that of the existing permission” through a single application.

The provision has also been cited by some in parliament as a potential answer to some of the problems caused by hillside, but whilst it might help around the edges, it is not by any means a complete answer – as often the changes that used to be made via drop-in applications were “substantially” different from the main application i.e. replacing a commercial unit in a retail centre with a nursery or care home.

Nonetheless, it is at least interesting to note that it hasn’t been forgotten about and may well make an appearance sooner rather than later.

*I know it sound like I am moaning, but i am actually happy about this.

**both children have homework now. Which is nice.