Planning and Infrastructure Bill

Lord Murray of Blidworth Excerpts

Committee stage
Tuesday 9th September 2025 Lords Chamber

Moved by

[Lord Murray of Blidworth]

133: After Clause 51, insert the following new Clause—
“Promotion and use of mediation etc.(1) The Town and Country Planning Act 1990 is amended as follows.(2) After section 323A insert—“323B Promotion and use of mediation etc.(1) The Secretary of State or the Welsh Ministers may issue guidance in relation to the promotion and use of mediation and other forms of alternative dispute resolution (ADR) technique in relation to the following—(a) the preparation of local development plans and related evidence reports under Part 2,(b) a prospective applicant’s compliance with any requirements in respect of pre-application consultation imposed under or by virtue of sections 61W or 61Z,(c) assisting in the determination of an application for planning permission, including related planning obligations or their variation under sections 106 and 106A, and(d) any other matter related to planning including the acquisition or appropriation of land for planning purposes that they consider appropriate.(2) Guidance under subsection (1) may include provision about—(a) the form of mediation or other ADR technique that is to be used in a particular circumstance, and(b) the procedure to be followed in any such mediation.(3) Local authorities must have regard to any guidance issued under subsection (1).(4) Before issuing any guidance under subsection (1), the Secretary of State and the Welsh Ministers must consult—(a) planning authorities, and(b) such other persons that they consider appropriate.(5) The Secretary of State and the Welsh Ministers must make any guidance issued under subsection (1) publicly available.(6) The power under subsection (1) to issue guidance includes power to—(a) issue guidance that varies guidance issued under that subsection, and(b) revoke guidance issued under that subsection.(7) For the purposes of this section, “mediation” and “ADR technique” includes any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Secretary of State or the Welsh Ministers consider appropriate.(8) The Secretary of State and the Welsh Ministers must issue guidance under subsection (1) within the period of two years beginning with the date on which the Planning and Infrastructure Act 2025 is passed.””Member’s explanatory statement
This amendment requires that guidance must be issued on the promotion and use of mediation and other forms of ADR in the planning process. It is intended to engender a culture of informal resolution of disputes, in order to reduce the risk of the delay and expense caused by litigation.

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[Lord Murray of Blidworth (Con)]

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.

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[Lord Wilson of Sedgefield (Lab)]

I thank the noble Lord, Lord Murray, for his amendment on statutory guidance on mediation in planning. This would require the Secretary of State to publish guidance promoting the use of mediation in a range of different planning activities, including plan-making, decision-taking and the use of compulsory purchase. The thrust of the amendment is to ensure that issues are dealt with upfront, as opposed to relying on issues to be dealt with through the courts.

As the noble Lord set out in his speech at Second Reading of the Bill, this is not a new issue. Previous Governments have explored this approach multiple times, but it has borne little fruit. Although we completely agree with the underlying objective of the amendment, we regretfully cannot accept it.

We feel that a statutory duty to have regard to such guidance would not be appropriate or necessary for all planning activities. In particular, when determining planning applications, planning law requires the decision-maker to consider all relevant planning matters set out in the local development plan and weigh this with other material planning considerations.

Given this legal framework, it would not always be possible to reach consensus on all matters—this is not the exercise when determining whether development should be granted permission. Where a planning application is refused by a local planning authority, there is a well-established procedure whereby the applicant can appeal the decision. In an appeal, an independent inspector from the Planning Inspectorate, acting on behalf of the Secretary of State, will consider planning matters afresh. The procedures used give relevant parties the opportunity to state their case further. As these processes are carried out in public, it ensures that the process is transparent and fair. This process provides a considerable benefit compared with mediation, in that mediation is carried out behind closed doors.

It is common practice, and encouraged through the NPPF, that when determining applications local planning authorities work positively and proactively with applicants. It is often the case that large-scale and complex development applicants and local planning authorities enter into planning performance agreements, which will help manage the process and provide a forum for dispute resolution.

There are some areas where we actively encourage mediation already. In relation to compulsory purchase, the Government have already published guidance on the use of alternative dispute resolution techniques, including mediation, to help parties resolve concerns on the principle of compulsorily purchasing land by CPO. The Government are also committed to strengthening the system of developer contributions, including Section 106 planning obligations, to ensure new developments provide necessary affordable homes and infrastructure, and we are considering a range of options to deliver on that commitment.

For the reasons I have set out, I hope that the noble Lord can withdraw his amendment.

[Lord Murray of Blidworth (Con)]

My Lords, I am very grateful to the noble Earl, Lord Russell, for his support of the amendment. I rather agree with the questions that he asked. I look forward to seeing a copy of the letter which I am sure the Minister will write in response to the questions posed by the noble Earl. I am also grateful for the support from my noble friend on the Front Bench.

Turning then to the response from the Minister, I must confess that I am rather disappointed with the tone of the reply. Clearly, it is out of kilter with the approach taken by the senior courts of this country in encouraging the use of alternative dispute resolution. I have to say I find the reasoning as to why this particular route should not be explored unpersuasive; saying that it has not worked in earlier iterations is not a reason not to try a better formulation. That does not stack up. The second reason given was that planning processes occur in public and mediation occurs in private. That is true in all civil litigation, where mediation is positively encouraged by the courts. The point is that, if we enable the parties to negotiate in advance, we can avoid litigation, save public money and avoid delay.

I hope the Government will revisit their resistance, because I would consider returning to this issue on Report. I look forward to my meeting with the Minister’s colleague, which may or may not result in a different position. With that, I beg leave to withdraw.

Amendment 133 withdrawn.