Planning and Infrastructure Bill

Lord Murray of Blidworth Excerpts

2nd reading
Wednesday 25th June 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, it is always a joy to follow the noble Lord, Lord Thurlow. It is perhaps slightly less of a joy to be speaker number 59 on the speakers’ list and honorary tail-end Charlie. I can reassure the House of two things. First, I have only one point. Secondly, it is a new one.

[Noble Lords]

Oh!

[Lord Murray of Blidworth (Con)]

I declare my interest as a practising barrister and mediator in a set of chambers that specialises in public and planning law.

The specific issue I want to discuss is, perhaps counterintuitively, the reduction of statutory appeals and contentious litigation in the planning sphere. I suggest that we do this by expanding the use of mediation and alternative dispute resolution. We should aim in the Bill to ensure that landowners, housebuilders, local authorities, nature conservation bodies, local people and other stakeholders are having proper and more constructive conversations. If they do, the likelihood of litigation in the planning sphere, with all its delay and division, could and should be reduced. In Committee, I hope to table amendments that will offer a way forward in this regard.

The Scots have been ahead of us in this game for some time. Section 40 of the Planning (Scotland) Act 2019 contains a measure introduced by the Scottish Government to provide specific legislative provision that focuses on the promotion and use of mediation in the planning process. Those measures in that Act require Scottish Ministers to issue guidance on

“the promotion and use of mediation”

and other methods for resolving disagreements related to planning matters. Experience tells us that it is working.

On the other hand, while mediation within the English planning system is known and has been successfully used, it continues to be a significantly under-deployed and under-appreciated resource. Generally, while mediation has become central—and is increasingly becoming mandatory—to the civil justice system in other fields and has been greatly encouraged by repeated appellate court judgments, the planning system lags somewhat behind, despite its potential for avoiding conflict having long been acknowledged in numerous reviews and reports from 2006, 2009, 2010 and 2011.

Despite these reviews and reports, in practice there has been little sustained progress towards the formal adoption of mediation in planning. For example, when he was Communities Secretary, the noble Lord, Lord Pickles, introduced “Section 106 brokers” in the summer of 2012. The initiative was then taken into legislation through the short-lived Sections 106BA to 106BC of the Town and Country Planning Act 1990, as inserted by the Growth and Infrastructure Act 2013, which allowed for renegotiation in respect of those agreements. However, that measure was subject to a sunset provision and expired on 30 April 2016.

Another provision was that of the Planning Minister, Sir Brandon Lewis, who included in Sections 106ZA and 106ZB of the Planning and Housing Act 2016 a measure through which a form of dispute adjudication was to be introduced. However, it was never implemented. Most recently, in summer 2021 the then Government introduced the pathfinder scheme to deploy mediation to reduce the enforcement appeal backlog. I am told that that scheme was not a success because a lot of local planning officers were less than enthusiastic about engaging in meaningful discussion about mediation, often because they did not understand the process. The experience from Scotland is that those efforts can be facilitated only by greater education and training as to the merits of and costs that can be saved by adopting that course.

It is tolerably clear, though, that where formal mediation has been used in planning scenarios, it has often been successful. Even where its techniques have been deployed informally through the presence of a neutral facilitator or chair, negotiations have been accelerated and produced better outcomes. Consequently, public and private resources have been saved, stakeholder relations have been improved and, crucially, earlier delivery of new developments and infrastructure has been the result.

Therefore, if the Bill is truly going to succeed where other measures have failed in bringing about meaningful and lasting reform of our planning system, a culture of better, more constructive and less disputatious conversations should be a part of the changed regime. Having a statutory provision promoting mediation would be timely. In the planning context, it would reflect the new mood music from the senior courts about resolving differences through better conversations, and lead to quicker, cheaper and more certain outcomes.