Written evidence submitted by the All Party Parliamentary Group on Alternative Dispute Resolution (APPG ADR) [FPS 109]

Introduction

1. The purpose of the APPG ADR is to help change the culture of Alternative Dispute Resolution (ADR) in the country by providing a valuable forum within Parliament to discuss the latest development in ADR and to promote its wider use[1]. It is in this context that this Submission is being made  jointly by John Howell MP ACIArb, its Chair, and, its public law technical adviser, John Pugh-Smith FCIArb, barrister, mediator and arbitrator practising from 39 Essex Chambers.

2. The APPG ADR has held a number of evidence sessions since its inception in 2015 including  two specific evidence sessions on the use of ADR in the public law context, most recently into the land-use planning and compensation sectors in May 2020[2]. The outcomes of these sessions is reflected in this submission. They also draw on the personal experiences of the authors

Overview

3. Drawing from these sessions together with the accompanying personal submission, based on many years professional experience[3], by John Pugh-Smith to the MCLG’s White Paper Consultation  it explains the context for mediation (and its facilitation techniques)  within the Planning System, previous initiatives and why they have only been partially successful, and, why it can be improved both in the immediate and by longer term changes, envisaged by the White Paper if more active use I made of mediation.

4. Therefore, necessarily, it responds holistically, to the eight  questions posed by the HCLGC, and, provides solutions in respect of the following :

• Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?
• How can the planning system ensure that buildings are beautiful and fit for purpose?
• What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?

5. It explains why, in response  particularly to these three questions,   the HCLG Select Committee needs urge the Government to adopt a much more proactive and achievable ADR system  so that they can  expedite an effective delivery of the reforms in question.

6. It highlights that there is a wealth of empirical research and initiatives to provide the pessary reassurances to  Government that it must seize this opportunity, as part of its seismic changes to the current Planning System, to change the culture and approach to its outworkings; but, that  these beneficial effects can only be achieved through the greater promotion and use of ADR techniques and processes.

7. It recommends that pending primary legislation, following the Scottish approach,  modest changes could be introduced  now, such as to the wording of the PPG and through a Ministerial Statement conveying the clear message that the Government requires greater use of ADR techniques and processes and, providing sanctions if they are not actively pursued.

The Case for Mediation and Facilitation in the Planning System

Dispute avoidance

8.   Mediation is generally considered once a dispute has crystallised. Increasingly, however, the mediation process is being used more strategically for early dispute management and with impressive results. This is where early review and intervention are deployed with the aim of identifying and managing conflicts. The principles underpinning the process include: restarting communication between the parties; providing a ‘safe’ arena for open discussion about the problems and the options; encouraging consideration of options for settlement that can include those a court could not consider. Experienced practitioners frequently see the damage to valuable relationships and understand that structured negotiation at an earlier stage would probably have conserved more resources a good deal sooner and achieved better outcomes. The involvement of an independent professional early on can help the parties rationalise the legal issues, rebuild the trust and the good will necessary to find agreement, assist with risk assessment and support the parties in making good decisions for themselves and their respective organisations. As facilitators, they can chair public meetings or oversee consultation exercises bringing an objective eye and guidance to ensure that issues are addressed and not buried.

9.              Co-incidentally, this type of pragmatic and proactive approach reflects the aspirations contained in the Government’s Dispute Resolution Commitment, announced by the then Justice Minister, Jonathan Djanogly MP, on 23 June 2011. It included:

• Being proactive in the management of potential disputes and in working to prevent disputes arising or escalating, in order to avoid the need to resort to the use of formal dispute mechanisms wherever possible.
• Using prompt, cost effective and efficient processes for completing negotiations and resolving disputes.
• Choosing processes appropriate in style and proportionate in costs to the issues that need to be resolved.
• Recognising that the use of appropriate dispute resolution processes can often avoid the high cost in time and resources of going to court.
• Educating employees and officials in appropriate dispute resolution techniques, in order to enable the best possible chance of success when using them

Mediation generally

10.               The case for mediation generally is widely accepted. Quoting Lord Neuberger’s key note address on 12 May 2015 to the Civil Mediation Council’s Annual Conference:

‘First, mediation is quicker, cheaper and less stressful and time-consuming than litigation. Secondly, mediation is more flexible than litigation in terms of potential outcomes. Thirdly, mediation is less likely to be harmful to the long term relationship between the parties. Fourthly, mediation is conducted privately, under less pressure and in somewhat less artificial circumstances than a court hearing. Fifthly, it is far more likely that both parties will emerge as “winners” or at least neither party will emerge as a disgruntled “loser”

.

11.   Furthermore, the Courts have regularly commented on its benefits in a variety of disputes..

12.              Nevertheless, it has to be recognised that, unlike litigation, where the dispute will always be resolved one way or the other, a mediation may not deliver a settlement on the day. There are many reasons why some mediations do not settle. It is rare for those mediations to be a complete waste of time and money: issues may be narrowed and some resolved or discarded, priorities better understood, options and opportunities identified and even if the result is a heightened determination to litigate then arguably that is a result. For  local authorities in particular, this can be of real value when justifying a course of action to cabinet members.

13.               Much depends on the type of ADR used; and below are some of the benefits that have been identified by those who have engaged in mediation in particular:

a) It has a different tone and atmosphere to litigation or planning appeals which tend not to foster (much) agreement.

b) It is flexible and can be adapted to the particular characteristics of the parties and the dispute.

c)  The process is usually by consent, and if not the attendance then certainly the participation and any agreement reached thereby giving the parties greater control over their decisions.

d) The parties can choose the third party to mediate or arbitrate the dispute. This gives them greater confidence in the process.

e)  The parties can choose the input from the third party i.e. whether it is helping the parties to formulate their own propositions or when asked to use his/her expertise to offer independent views to the parties.

f)  The parties can choose how the mediation is conducted; and it is one of the core skills of the mediator to adjust the process to facilitate the conduct of the negotiations in consultation with the parties and their professional advisers.

g)  The negotiations and the outcome can be confidential.

h) It can be cheaper and quicker than litigation. Most mediations only last one day.

i)  It can be used to settle all or part of a dispute.

j)  It can be used to narrow issues.

k)  The outcome can be by way of formal agreement or otherwise as circumstances dictate.

l) . A far wider range of outcomes (e.g. an apology or an explanation) is available, rather than the narrow range of remedies available to the Court or to a Planning Inspector.

m) . It can improve and restore relationships between the parties which is particularly important in sectors where there are fewer players or the costs of termination greatly outweigh the quantum in a particular dispute.

Planning mediation

14.              Mediating a planning or environmental issue differs, in John Pugh-Smith’s long experience[4], from many other kinds of dispute resolution due to the requirements of  governance, the need for transparency, the  requirement for consultation with different parties, the democratic process that has to be followed  and the wider expectations of “the public interest” ; and yet the relatively informal approach of mediation, which allows its  techniques to be applied according to need and circumstances, enables better use to  be made both of public and private sector resources particularly during the current economic recession. Furthermore, it fits well with the expectations of the last major set of statutory reforms to the planning process on early and effective community engagement in both plan-making and decisions on planning applications, a cornerstone of the Planning System since by the Planning and Compensation Act 2004, and, for major infrastructure projects under the Planning Act 2008.

Relevant history

15.              The impetus to use mediation within England (and Wales) can be traced back to March 2008 when the Westminster Government commissioned Joanna Killian, Chief Executive of Essex County Council, and David Pretty, former Chief Executive of Barratt Developments plc, to “look objectively at the planning application process, to identify how it could be further improved, and in particular to consider ways to reduce unnecessary bureaucracy, making the process swifter and more effective for the benefit of all users”  In November 2008 their final report was published[5].

16.              One of the recommendations of the Killian Pretty Review was that greater use of alternative dispute resolution approaches should be encouraged at all stages of the planning application process where this can deliver the right decisions in a less adversarial and more cost efficient way.  To achieve this objective the report anticipated that local authorities and applicants should explore opportunities for applying alternative dispute resolution approaches throughout the process, and, that the Department for Communities and Local Government and the Planning Inspectorate should carry out a more detailed investigation into the use of formal mediation as a less adversarial and speedy alternative to appeal.

17. The Westminster Government’s formal Response, published in March 2009, stated that “the Planning Inspectorate would work with Communities and Local Government and others on investigating the role of mediation in reducing the need for planning and enforcement appeals and/or reducing the time and effort involved in determining such appeals”. In response to this commitment Katrine Sporle, Chief Executive of the Planning Inspectorate (PINS), initiated a project jointly with the National Planning Forum (NPF)[6] to meet the Government’s response to that recommendation by investigating the potential use of mediation in the planning system. Leonora Rozee (former Deputy Chief Executive and Director of Policy at PINS) was appointed to Chair the Project’s Working Party.  The Project was  supported by funding from PINS, the NPF and the Planning Advisory Service. In August 2009 a cross sector “Working Party or “steering group” was set up covering national and local government interests, advisory bodies, professional and business interests and third sector interests. Expressions of interest were sought from the planning community for live planning cases which might be suitable for mediation, which have included a major urban extension, several complex enforcement cases and a number of Area Action Plans.  The Project reported, formally, in June 2010[7]. Following the various recommendations in “Mediation in Planning further work was undertaken looking at the means by which certain “pathfinder” planning authorities could better embrace the use of mediation in their planning delivery service with help from a panel of practising mediators with specialist planning expertise. In April 2011 a further initiative got underway with five initial authorities taking  up the offer[8] together with the launch of the reference publication, Mediation in Planning- A Short Guide”[9] (endorsed by the then Planning Minister, Bob Neill MP).

18. Because of the continuing effects of the “naughties” economic recession, the then Secretary of State for Communities and Local Government, (Lord) Eric Pickles, perhaps on the advice of his then Planning Minister, (Sir) Bob Neill[10],  introduced  a “Section 106 Brokers” service to unlock “stalled sites” in August 2012.  Administered by the Homes & Communities Agency  it operated a panel of “planning professionals” including lawyers and surveyors, including myself. They dealt with referrals  in both formal and informal “mediation” sessions concerning residential, commercial and mixed use schemes, and, with a fair degree of success despite the scheme’s effective operation being hampered by  Central Government funding restrictions  and cumbersome “triaging” procedures.  In short, a pragmatic and potentially either self-funding or certainly “kick-started” method of providing, again,  both  the “opportunities” and the “mechanisms ” without the need for legislative or policy changes and without delay.

19. Partly based upon the identified benefits of the “Section 106 brokers”  initiative but also in response to growing cries for specific legislation about affordable housing relaxations, legislation then ensued with  Sections 106BA to BC were inserted by the Growth and Infrastructure Act 2013 into the Town and Country Planning Act 1990 with effect from 25th April 2013 but with a “sunset  provision” of 30th April 2016.  Although there were shortcomings in the published DCLG Guidance[11] and the consequent need for parties to rely both on RICS Professional Guidance[12]  and a series of appeal decision letters, and,  the occasional High Court challenge[13] the mandatory system worked reasonably effectively, if frustratingly in terms of delay  and resulting costs from having to engage a statutory review process. So, again ., there already exists a statutory solution surely which could be reintroduced swiftly . 

20. Next , by way of necessary historic review,  was the legislative  initiative to introduce  Section 106 “adjudication  procedures”. It had been intended for new Sections 106ZA to ZB  of the 1990 Act to be brought into operation  under  the Housing and Planning Act 2016[14] . However, like several initiatives under the 2016 Act  they have remained  unimplemented. As well as a shift in government policy the reason may have been  in part due to yet another change in Planning Minister[15] but also concerns expressed by the RICS and others ,during the overlapping technical  guidance consultation phase, regarding the need to avoid  cumbersome procedures if the scheme was to be attractive to the development industry and workable. Nevertheless,  these were not insoluble problems.

Lessons learned and still to be learnt

21. From the lessons already learned from the above, and, from the experiences of  specialist planning practitioners, who are also  accredited mediators, it has long been clear that when participants have a sufficient understanding of the flexibility of the mediation process and its facilitatory  nature then they are prepared to “buy into” it.  Indeed, the NPF/PINS Project’s survey of Chief Planning Officers revealed a more widespread knowledge of, and positive attitude towards, mediation than was initially anticipated.

22. However, there still needed, and needs yet,  to be a change in the culture of the Planning System.  Given that this remains fundamentally concerned with the balancing of the private interest of the applicant with wider public interest concerns of the planning authority, conflict is inherent within its operation. All too frequently  it can lead to a confrontational approach to dealing with planning issues and, all too often, an imbalance between those ‘in the know’ and those ‘outside’.  Lack of trust between major players is too often demonstrated.  When trust breaks down between, for example,  developers and local planning authorities, citizens and ‘experts’, elected members and officers, it can lead to poor and inefficient decision-making.  Since mediation is based on the need for cooperation, as it is a voluntary process controlled by the parties, it offers the potential to build (even re-build) trust.

23. With appeal as the primary resolution procedure the parties are locked into a system where one party has to lose; and the statistics, coupled with continuing attempts to kerb their duration, increasingly make it an expensive course of last but necessary resort . Given, also, the current crisis in viability and delivery there is a growing need to resolve, more speedily, the resolution of infrastructure costs, affordable housing delivery and the like. However, the role of mediation can go well beyond the boundaries of an alternative dispute resolution vehicle for appeals and s.106 negotiations. For example, mediation could be included within planning delivery agreements for major projects.

24. The essence of “mediation” is the use of a neutral third party.  Whether this exercise is, in essence, facilitated dialogue and/or facilitated negotiation is dependent upon the stage or stages at which this form of “neutral chairing” is introduced. Certainly, it is a  process that can enrich the consultation process, underpin the preparation of planning briefs and reduce the areas of real conflict. It  can also enable local ownership of issues to be retained, consistent with the aims of the spatial planning system to deliver local solutions to local problems. It can, too, permit the exploration of a wide range of issues which affect the use and development of land in a non confrontational manner thus potentially supporting a more holistic approach to the resolution of planning issues, for example, in certain types of enforcement cases and in development planning. Indeed, the more consensual and co-operative approach which mediation requires is consistent with, for example, the aims of the ‘frontloaded’ spatial planning system introduced by the Planning and Compulsory Purchase Act 2004, and, the “localism” agenda of the current Coalition Government.

25. However, the nature of the current Planning System is such that if the techniques are to be more widely applied then the term “mediation” will need to be more understood as well as more flexibly defined; for the activities involved are likely to differ according to the nature of the process involved, whether this be  development plan, enforcement, planning application, and, the stage at which mediation techniques are introduced into the relevant planning issue.  It also requires real Government support and incentivisation to introduce greater flexibility into the current system, and, a change in the current climate of performance targets. On the other hand,  with continuing pressure on resources in both the public and the private sector leading to greater desire to find more cost effective means of dispute resolution mediation has a significant role to play in helping deliver a faster and more effective twenty-first century planning system.

Some recent empirical support

26. At its recent evidence session, held online, on 4th May 2020, the APPG ADR heard from a number of expert witnesses, including John Pugh-Smith, on the subject “Land-use assembly, planning, compensation and ADR: lessons learned and next steps”[16]: It also benefitted from the results of  recent membership surveys  of the Compulsory Purchase Association (CPA) and the Planning and Environment Bar Association (PEBA). These necessarily overlapping surveys took place earlier this year and prior to the start of the March “Lockdown”. It also heard from Graham Boyack of Scottish Mediation (see further below) two CPO specialists, David Baker  of Baker Rose, Chartered Surveyors, and David Holland of Squire Patton Boggs, Solicitors about their experiences, particularly acting for claimants.

27. The membership surveys were undertaken to ascertain the varying degrees of experience of ADR which, in the case of the CPA, engages solicitors, barristers and surveyors and with PEBA, just barristers. Overall, a 20 per cent response rate was achieved[17]  to a series of questions seeking the use and experiences from those acting in one or more of the following capacities: Mediator; Independent Expert/Adjudicator/Evaluator; Arbitrator; Neutral ‘chair’; Facilitator (i.e. intermediary); Advocate; Expert Witness. The first question posed was as follows: “Within the last five years, in relation to compensation, land-use, and/or community issues (e.g. party walls, rights to light, boundary disputes) have you acted in the following capacities (more than one can be answered)?” Unsurprisingly, for professional associations, 43 per cent of respondents confirmed that they had acted as advocates in CPO matters and , 41 per cent in planning. As expert witnesses in CPO matters 40 per cent had so acted and 10 per cent had done so in planning ones. As independent experts 12 per cent of respondents  had acted in that capacity in CPO and 8 per cent in planning matters. As  mediators,  nearly 10 per cent had so acted in connection with planning matters and 8 per cent with CPO issues followed, as facilitators,  by just over 5 per cent equally  for CPO and planning matters. Another question asked was: “Where used, how did the parties perceive the process?.  In reply, where the outcome was successful, 33 per cent of respondents stated that it had been positive, of which 12 per cent had been  impressed and 17 per cent relieved.  Even where the ADR process failed while 13 per cent had negative perceptions,  5 per cent remained positive; and in 27 per cent  of cases opinions varied between the parties as to the outcome. Finally, in the context o this article, when respondents were then asked to rank “the drivers required to change behaviours in relation to ADR”, 38 per cent of them placed, first, legislation followed by professional guidance (28 per cent), then procedural requirements (14 per cent), then educating clients (13 per cent) and training at 7 per cent.  Procedural requirements received the second highest ranking at 35 per cent followed by professional guidance at 32 per cent.

28. These results as well as their timing are further demonstrations  that facilitated non-confrontational dialogue  can and does lead to equal and even better outcomes. Indeed, perhaps, the greater positivity to use ADR may, in part, now be due to the  CPA’s own Compensation Protocol[18]  which requires “that in all cases parties should give due consideration to any opportunity to avoid a Reference or narrow the issues between them by using alternative dispute resolution advocate the use of ADR”. This expectation is also to be found in the  previous and, with greater emphasis, the  replacement Practice Directions 2020 for the Upper Tribunal (Lands Chamber)[19].

Next steps

29. Accordingly,  an easy “win” for overworked MHCLG officials would be  an addition to the “appeal costs”  section of  the Planning Policy Practice Guidance[20] covering e.g.  a refusal to  allow facilitated negotiations of planning obligations  as another example of unreasonable  behaviour.  Although last officially  recommended  in  the NPF/PINS Joint Report “Mediation in Planning” (June 2010)[21] this  obvious sanction, clearly reflected in all forms of procedure  and protocol emanating through the Ministry of Justice[22] and even  within the Arbitration Act 1996[23]  yet lies effectively “untaken” within the planning process. Surely, it is now time to include such a reference.

30. Further, and more holistically, there needs to be a significant statutory underpinning. This could be readily achieved by  Westminster following  the approach taken by Holyrood within the Planning (Scotland) Act 2019 and include a specific statutory provision promoting and using mediation. .Section 40 of the 2019 Act  introduces a new Section 268A into the Town and Country Planning (Scotland) Act 1997:

268APromotion and use of mediation etc.

(1) The Scottish Ministers may issue guidance in relation to the promotion and use of mediation 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 section 35B,

(c) assisting in the determination of an application for planning permission,

(d) any other matter related to planning that they consider appropriate.

(2) Guidance under subsection (1) may include provision about—

(a) the form of mediation 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 Scottish Ministers must consult—

(a) planning authorities, and

(b) such other persons that the Scottish Ministers consider appropriate.

(5) The Scottish 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” includes any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Scottish Ministers consider appropriate.

(8) The Scottish Ministers must issue guidance under subsection (1) within the period of two years beginning with the date on which the Planning (Scotland) Act 2019 received Royal Assent.”.

31. At the same  evidence session, held online, on 4th May 2020  the APPG ADR heard  Graham Boyack, the Director of Scottish Mediation, whose organisation, supported by the Planning Advisory Service, has been at the forefront of promoting and now helping outwork the provisions of new Section 268A. He explained that  as there is a particular focus in the 2019 Act  on collaboration, consensus and frontloading the system there are  real  opportunities for mediation[24] to support this pro-active approach and to seek to deal with and mitigate potential conflict at an early stage, before more entrenched conflict has the chance to become established. While mediation has been adopted in some planning systems in other countries but predominantly this has been  at the later stages, mainly at appeal where disagreement is fully established and it will be more difficult to find common ground to reach mutually agreeable solutions. Now, Scotland has the opportunity here to be forward thinking and innovative in its approach and therefore we have taken a conscious decision to focus upon the more formative stages of the planning process as well as mediation processes for planning applications, for example, should there be a threshold number of objections after which a mediation style event must be offered within the community?

.

Specific ADR Shortcomings in  the White Paper

32. In the MHCLG White Paper Consultation Submissions from both the APPG ADR and the CIArb it has been highlighted that there is a noticeable  lack of information pertaining to the notion of dispute and dispute settlement throughout the White Paper, despite priding itself on bringing an end to opaqueness and increase transparency. This conspicuous omission leads one to believe that the authors of the White Paper on the one hand wished to stand firmly behind the need for clearer rules for planning decisions whilst on the other hand not caring to address the problem with any distinctive solutions or remedies.

33. Furthermore, with confidence levels for elected officials now down into the lower fifties – according to findings presented in the White Paper – it is more crucial than ever that citizens across the country can regain a feeling of procedural control over the process. Access to justice is one of the core pillars of our democratic system of governance; and ADR is an exemplary vehicle through which such a virtue can be more easily attained in cases where traditional procedural routes are either unavailable or simply unattainable for affected parties.

34. The sheer measurability of the communal impact of planning decisions and infrastructure development should therefore warrant increased awareness of alternative means of dispute resolution than the current statutory processes.

35. Although The White Paper focuses heavily on equality and justice aspects, but throughout its 84 pages not one mention is made of the words conflict, dispute, or resolution. Another conspicuous omission is that it  goes into detail regarding the many unjust or transparent aspects of the Planning System. But nowhere identifies the constructive solutions that are readily available to improve conversations  and outcomes.

36. To illustrate, like  CIArb, the following areas  would be well served by the inclusion of ADR-related content.

Simplifying the role of Local Plans, to focus on identifying land under three categories and making the process more streamlined and engaging

37. Given the draconian and lasting effects (both social and commercial) on categorising land as either “growth”, “renewal” and “protected” any mature democratic system requires there to be adequate consultation  and dialogue to enable the difficult “conversations” to take place in as emotive environment as is capable of achievement. Mediation and its facilitation techniques, from neutral chairing through to structured mediation sessions, whether confidential to the extent of non-disclosure agreements, subject to “Chatham House Rules” or to an invitation –only audience, are sufficiently flexible and adaptable to assist with the delivery of this key aspect.

38. Furthermore, there is a wealth of material upon which MHCLG can draw including previous Governmental enquiries[25], published empirical research[26] as well as specific case study examples[27] and initiatives[28][29]  mentioned above.

Planning for beautiful and sustainable places

39. Again, this an area where dialogue and consensus building has worked using facilitators including The Princes’ Foundation BIMBY toolkit initiative[30] for local communities with which I was involved.. This can provide a platform for conversations about design and layout particularly in a Neighbourhood Plan-making context, and, in public consultation on a Design Brief for a specific project. e.g. an urban extension or garden community.

40. While it may well still be the intention of Government to abolish the current Design Council it should retain and enhance its panel of Built Environment Experts (BEEs)[31] or introduce an equivalent service. The BEE service was set up by the former Commission for Architecture and the Built Environment (CABE) to offer a design review service when it became a registered charity (Design Council CABE), at modest costs.

Decision-making should be faster and more certain & enforcement powers and sanctions should be strengthened

41. It is commendable to want to speed up lengthy bureaucratic processes and strengthen the intra-systemic rule of law. However, it is not clear how these goals are to be achieved. Lessening the burden of cumbersome red tape and excessive regulatory actions can lead to fruitful developments; but there has to be a vehicle in place through which such development can be achieved.

Disputes in regard to developer obligations             

42. This in an area where mediation, both formal and informal, has been used to good effect, including the 2012/14 “Section 106 brokering” scheme. Accordingly,  as the White Paper dwells into the subject of new developer obligations,  ensuring of these adequately and timeously coming to fruition will require using ADR techniques, something that the Government’s Consultation Response needs to address too.

Compulsory purchase and compensation

43. Attention has already been drawn attention to The Compulsory Purchase Association’s Land Compensation Claims Protocol[32] . Together with its associated Alternative Resolution Dispute Guidance[33]  it has identified and advocated the benefits of using ADR when speeding up compensation payments. This makes the fact that the White Paper does not include any mention of these findings when it talks about compulsory purchase odd, and,, now out of synch with both professional practice and the approach taken by the Upper Tribunal (Lands Chamber) in its Practice Directions[34] .

Conclusions & Recommendations

44. The encouragement of a less adversarial and more nuanced approach to land-use planning  can and would improve the quality, speed and certainty of decision-making, and, thereby reduce the uncertainties and delays which the White Paper has highlighted.

45. As there has been sufficient significant and meaningful empirical research and initiatives by past Governments over the last 12 years there can be no sensible reason why the Government’s Consultation Response to recognise the tangible benefits   that can be derived from the  greater promotion and use of ADR within its proposed reforms. These should an English equivalent of Section 40 of the Planning (Scotland) Act 2019 with related statutory guidance promoting and using mediation.

46. Furthermore, in the interim, there are simple but effective ways of conveying these benefits  within even the current Planning System, through modest changes to the national Planning Practice Guidance accompanied by a Ministerial Statement. .

47. Accordingly, the APPG urges the HCLGC Select Committee to endorse these recommendations. .

October 2020

ENDNOTE

John Pugh-Smith FSA, FCIArb is a , CEDR Accredited Mediator and specialist planning barrister[35] He is one of the two specialist advisers to the All Party Parliamentary Group for Alternative Dispute Resolution (“APPG ADR”), particularly on public law matters.

His collective experience comes from being a specialist planning practitioner since the late 1980s, and, an accredited  mediator since 2005. Since that latter time he has been at the forefront of initiatives to introduce mediation and its related techniques into the planning system, helping to set  up an RICS DRS specialist planning panel, acted as PEBA and Bar Council representative on the NPF/PINS Working Party responding to the Killian Pretty Review, acted as one of the pilot mediators, acted as one of the DCLG’s panel of “Section 106 brokers”, appointed as a Design Council CABE Built Environment Expert,(BEE) and acted as a member of the Highways England Design Review Panel. He also  gave evidence, as a mediation practitioner, .to the APPG ADR in sessions held in January 2017 and in May 2020[36]. He is currently a standing member of the RICS President’s Panel for non-rent review dispute resolution (acting either as arbitrator, mediator or neutral expert), a Design Council BEE,  a panel member of the Association of Northern Mediators, and, a member of the Bar Council’s ADR Panel and also the Compulsory Purchase Association’s ADR Sub-Committee. He has written extensively on the subject (footnoted below) particularly in the context of the Planning System.

Referenced Annexes (can be separately provided)

Annexe A: NPF/PINS Final Report: Mediation in Planning ( 2010)

Annexe B: “Mediation in Planning – A Short  Guide (2011)