Contribution
My Lords, I once again declare my interest as a practising barrister and mediator in a set of chambers which specialises in public and planning law.
The Government’s objective, and the overriding objective of the Bill as I understand it, is to speed up the planning process and build more homes. One way—I suggest the best way—of achieving this would be to reduce conflict and to avoid lengthy litigation about planning matters, with all the delay and expenditure which results. I venture to suggest that Amendment 133 in my name could do more than any other single measure in the Bill to achieve that objective. It is a big claim, but I make no apologies to the Committee for making it. I have been most enheartened by the positive reception that this suggestion has already had from the Government Front Bench.
This amendment can, I believe, achieve what numerous amendments to planning legislation have never focused on: namely, giving a clear legislative steer from government that all stakeholders must now seek to engage in a more constructive conversation rather than defaulting to confrontation and, ultimately, to litigation. The alternative to this amendment is that the status quo of delays, confrontation and forced outcomes will be perpetuated—an alternative which is certainly not in the public interest.
The present system, in which mediation is permitted but not encouraged, frequently allows polarised positions to be perpetuated, and, too often, their related toxic conversations simply lead to the greater likelihood of confrontation and litigation in the planning sphere, with all the attendant division, costs and delay.
As I say, mediation within the English planning system is presently known and has been successfully deployed. However, it continues to be a significantly underused and underappreciated resource. In contrast, in other spheres of litigation, mediation has now become central to the civil justice system, greatly encouraged by repeated appellate court judgments—and it is increasingly becoming mandatory. This is all the case despite the planning system recognising that the potential of mediation is long acknowledged.
In the recent case of Churchill v Merthyr Tydfil County Borough Council in 2023, in the decision of the Court of Appeal, comprising the Lady Chief Justice, the Master of the Rolls and the Deputy Master of the Rolls, it was decided that a court can order the parties to engage in non-court-based dispute resolution and can order a stay in proceedings to allow that to take place. Of course, that applies in ordinary litigation, but this amendment would mean that it would apply with full force within the planning sphere.
Planning law lags behind almost all other areas of the law. There have been earlier efforts to try to incorporate mediation in the planning sector. As I explained to the House when first raising the possibility of this amendment at Second Reading, there have been four major examples. The first was the 2006 Barker Review of Land Use Planning. The second was the Government’s 2009 response to the Killian Pretty report, which urged investigation of the use of ADR at all stages of the planning process. Thirdly, there was the 2010 report commissioned by the National Planning Forum and the Planning Inspectorate, called Mediation in Planning, and fourthly, the National Planning Forum’s 2011 Mediation in Planning: A Short Guide, which was endorsed by the then Minister for Planning, Sir Bob Neill.
Then, in 2012, the noble Lord, Lord Pickles, introduced something called Section 106 brokers, an initiative introduced when he was Communities Secretary. This system was designed to facilitate the agreement of Section 106 agreements, whereby a mediator sat with an independent surveyor and would discuss with landowners, developers and the local authority what agreements could be reached on Section 106. This was to have—and had—the effect of accelerating development projects. The initiative was then taken into legislation through the short-lived Sections 106(BA) to 106(BC) of the Town and Country Planning Act 1990, and it allowed for renegotiation of Section 106 obligations in respect of affordable housing. The sunset provision for those measures expired in April 2016. The real problem with that model was that the Treasury was paying for the mediator and the independent surveyor. We then had another legislative provision brought in under Sir Brandon Lewis, when he was Planning Minister, and that led to new Sections 106(ZA) and 106(ZB) to allow for a form of adjudication of disputes. However, those measures were never implemented.