The least glamorous measure in this area, and usually the most provable. It is also where the largest defensible component tends to hide.
Start a conversation with Cournot, the Institute’s damages concierge, already scoped to development delay & carrying costs. Pick a starting point, or describe the dispute directly.
Where a taking theory prices the use of land and a lost-profit theory projects a business that never operated, the delay measure asks a narrower and far more tractable question: what did it cost to hold this project while nothing could happen? The answer is largely documented. Land debt service accrues whether or not a permit issues. Property taxes and insurance are paid on schedule. The professional stack, architects, engineers, entitlement consultants, environmental and traffic specialists and counsel, has to stay engaged and re-engaged, and often has to redo work as codes, standards and personnel change underneath a stalled application. Site security, maintenance and holding obligations continue. None of this requires a projection of a business that never existed, which is precisely why it is the floor a serious opinion builds from before it reaches for anything more speculative. The component most often omitted is the one that is frequently the largest: construction cost escalation across the delay. If the work would have been bid in one year and is now bid in a later one, the difference in what it costs to build is a real, measurable, forward-looking loss, and it can be measured against published construction cost indices rather than asserted, which puts it on far firmer evidentiary ground than most of what appears in these claims. In a market where construction costs moved sharply across a multi-year delay, escalation can exceed every other component combined. Financing terms are a second commonly missed item: a construction loan that could have been drawn under one rate environment and must now be drawn under another is a quantifiable difference, though it requires evidence that the earlier financing was genuinely available rather than assumed. The discipline in this area is subtraction as much as addition. Costs the developer would have incurred anyway are not damages. Costs incurred on work that retains value, plans that remain usable, entitlements that survived, are not wholly lost. And carrying costs recovered as delay damages have to be reconciled against any period-of-use measure claimed under a takings theory, because the same months appearing in both is the double count opposing counsel is looking for first.
Documented, provable, and rarely disputed in existence.
Interest carried on the acquisition financing across the delay, evidenced by the loan documents and statements.
Paid on schedule regardless of entitlement status. Simple to prove and simple to verify.
The design and consultant stack held in place, re-engaged, and often required to redo superseded work.
The difference between building then and building now, measurable against published indices. Frequently the largest component.
Construction debt available on different terms than when the project was underwritten, where the earlier terms can be evidenced.
Security, maintenance, weed abatement and compliance on a site that cannot proceed.
How the Institute approaches a delay cost analysis.
Less headline value than a profit claim, and far more of it survives.
It requires no projection of a business that never operated. It is the difference between what the work would have cost then and what it costs now, and it can be measured against published indices rather than argued from experience. Over a multi-year delay in a moving construction market it is frequently larger than every other carrying component combined, and it is routinely absent from self-prepared estimates.
Usually yes, and often it should be built first. The profit claim on an unbuilt project is the measure most exposed to exclusion, and a case that rests on it alone can end with nothing if the speculative profit objection lands. The carrying and escalation claim is documented, checkable and comparatively hard to exclude, which makes it a floor rather than a fallback. There is also a persuasion argument: an opinion that begins with the provable and then reaches carefully for the projected reads as disciplined, whereas one that leads with a large projected figure and treats documented costs as an afterthought invites the tribunal to treat the whole exercise as advocacy. The two are not alternatives in any event, provided the model does not compensate the same economic harm twice, which is the reconciliation the expert has to show rather than assert.
Against published construction cost indices matched to the market, the period and the type of construction, applied to a scope that is evidenced rather than assumed. The strongest version starts from a real bid, estimate or GMP from the earlier period, so there is a documented base to escalate from, and moves it forward using a recognised series to the period when the work could actually be procured. Weaker versions escalate a conceptual budget, which invites the argument that the base was never real. The attacks are predictable: that the index chosen does not represent this market or this construction type, that the scope changed between the two periods so the comparison is not like for like, and that some escalation would have occurred during a normal approval timeline anyway, which is a fair point and should be netted out rather than waited for. Escalation is one of the few components in this area where the evidence is genuinely external to the claimant.
Costs that would have been incurred regardless, work product that retains value, and anything already compensated under another theory in the same case. Land debt service during a normal, expected approval period is a cost of doing development, not a cost of the delay, so the claim runs from the point the process departed from what was reasonably expected rather than from acquisition. Design work that remains usable has not been lost merely because it sat. Overhead allocations that would have been absorbed by other projects are contestable and often abandoned under pressure. And the reconciliation against a takings period matters: if a temporary taking measure compensates the use of the property for twenty-four months, carrying costs for those same twenty-four months require a clear explanation of why they are a separate economic harm rather than the same one measured twice.
It can, and the point is best addressed in the opening rather than conceded later. Two distinct arguments hide here. The first is mitigation: whether the developer took reasonable steps to limit the loss, which in this context can mean pursuing alternative approvals, redesigning to an approvable scheme, or disposing of the site. The second is absorption: whether internal staff and overhead nominally charged to the stalled project were in fact occupied on other work, which cuts directly at any internal cost component. Neither argument touches the external, documented items, the debt service, the taxes, the third-party fees, which is another reason those form the reliable core. A claim that presents no mitigation analysis at all invites the tribunal to construct one, and the constructed version is rarely as favourable as the one the claimant could have offered.
Describe the delay and the carry. The Institute will help you see what is documented, what is contestable, and what is probably missing.