Planning and Infrastructure Bill

Earl Russell Excerpts

Report stage
Wednesday 22nd October 2025 Lords Chamber

Moved by

[Earl Russell]

69: 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 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 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 must consult—(a) planning authorities, and(b) such other persons that they consider appropriate.(5) The Secretary of State 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 as the Secretary of State considers appropriate.(8) The Secretary of State 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.

[Earl Russell (LD)]

My Lords, this group is on the principles of planning. I speak to Amendment 69, tabled by the noble Lord, Lord Murray, to which I have added my name; I also added my name to this amendment in Committee. This amendment seeks to place mediation and other forms of alternative dispute resolution at the core of our planning system. It represents a vital opportunity to transform a process that is all too often adversarial and cumbersome into one that resolves disputes quickly, locally and constructively. Indeed, I might dare to say that the power of mediation has brought us together on this amendment, which otherwise might be unlikely.

As a local councillor, I have sat on a planning committee and witnessed at first hand how adversarial planning can be and how complex it is—a zero-sum game. More importantly, I have worked as a community mediator and a caseworker for a number of years, specialising in neighbour disputes. That has taught me a lot, which I continue into my politics to this day. The first thing I learned as a mediator is that the problem is never what people tell you it is.

Our current planning processes revolve around conflict, often forcing developers, residents and authorities into these zero-sum games. It can be very difficult for those involved to escape from those processes themselves. This, ultimately, can lead to long legal battles, rising costs, delayed homes, immense frustration and broken systems. These are exactly the kinds of problem that this Bill is intended—and the Government state that they want—to resolve. This amendment is here to try to offer a way forward. My wish in speaking again to the amendment from the noble Lord, Lord Murray, is that I really want this Government to be open to considering a large-scale trial of mediation so that adequate data can be found and the Government can make an assessment as to the true usefulness of mediation in the English planning system.

In Committee, the Minister rejected this amendment on a number of grounds. The first was that it was not new and that the Government had explored it before. That might be true, but I believe that, when it was explored before, it was not done fully and properly. Mediation is embedded in the Scottish system and has been since 1997, with updated planning guidance in 2020-21. There it is a voluntary process, and the Scottish authorities have found that it has been very useful at all stages of planning, including in complex cases and developer-community discussions.

Research conducted by the University of Strathclyde has found that 65% of mediated Scottish cases were settled successfully in 2024, saving vast amounts of money for the courts, avoiding delays and helping to get infrastructure and homes built. Equally, the Scottish Government have commissioned independent research that found that mediation, where it was used, fostered trust, reduced conflict and helped to achieve earlier agreements compared with traditional legal routes.

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[Lord Meston (CB)]

My Lords, I wish briefly to support Amendment 69, for the reasons advanced by the noble Earl. I just want to raise one question. The amendment would provide for guidance promoting the use of mediation. I would like to know whether the expectation of that amendment, if agreed, is that mediation should become mandatory, as is really the case in much civil litigation. If it is to be mandatory, what would be the sanctions for non-compliance with a direction for mediation?

[Earl Russell (LD)]

I welcome that question. It is not that mediation would be mandatory. I strongly believe that mediation should be a voluntary process. The idea is to have guidance to make sure it is available and consistent where it is required.

--- Later in debate ---

[Baroness Taylor of Stevenage (Lab)]

My Lords, I turn first to Amendment 69, tabled by the noble Lord, Lord Murray, and moved by the noble Earl, Lord Russell. This amendment seeks to introduce statutory guidance on mediation and dispute resolution into the planning system.

First, I thank the noble Lord, Lord Murray, for his continued engagement with us on this matter since Committee. I have had a meeting with him this week on this subject. He is a passionate advocate for mediation and I appreciate the insights he has shared on this issue. I think we both want the same thing: fewer disputes on matters of planning. There are certainly areas where mediation and alternative dispute resolution can play a valuable role in the planning system—for example, on the compulsory purchase and Section 106 agreements, where negotiating and reaching consensus is required.

However, we feel that third-party mediation would not be appropriate or necessary for all planning activities. For example, it would not be applicable to planning decisions, as planning law requires the decision-maker to consider all relevant planning matters set out in the local development plan and weigh them with other material planning considerations. Furthermore, a statutory approach to mediation may add a further layer to an already complex planning framework.

Much of what we are both seeking to achieve can be done through national planning policy and guidance. Our National Planning Policy Framework actively encourages proactive and positive engagement between applicants and local planning authorities, including pre-application consultation. This is a well-established part of the system and only 4% of all planning decisions lead to an appeal. On larger-scale schemes, planning performance agreements have also played an increasingly valuable role, and we actively encourage them as a tool to assist co-operation between all parties.

The noble Earl, Lord Russell, quoted the example of the way that Scotland deals with mediation. Section 286A of the Town and Country Planning (Scotland) Act 1997 enables Scottish Ministers to publish guidance promoting the use of mediation. Planning Circular 2/2021 sets out this guidance. Importantly, this guidance promotes the use of mediation rather than requiring its use. It clearly states that the use of mediation is not a requirement on local planning authorities. We do not need legislation to encourage the use of mediation, especially for all planning activities. As I said, there are examples of where we have used guidance to encourage the use of mediation, particularly on compulsory purchase orders.

Amendment 103 from the noble Lord, Lord Banner, and moved by the noble Baroness, Lady Scott, seeks to give decision-makers, applicants, consultees and the courts confidence that less can be more in the planning system. I thank the noble Lord for his engagement on this matter. He will know that we are taking forward regulatory reforms to this regime, removing the need for mandatory pre-application consultation and overhauling the permission stage for judicial review, which we discussed earlier.

Elsewhere, we are introducing the new nature restoration fund, reviewing the role of statutory consultees, removing the statutory consultation requirements relating to preliminary environmental information within the environmental impact assessment regulations for infra- structure planning and examining regulatory and policy requirements for small and medium-sized sites.

I again reassure the noble Lord that we agree with the sentiment of this amendment to remove unnecessary layers of duplication, and our actions show this. However, as I said in Committee, we still do not think that this amendment, though well intentioned, would provide the remedy for the lack of proportionality in our planning system. It would create a new legal test for decision-makers that risks more opportunities for legal challenge and more grounds for disagreements. It is better to promote proportionality through regulatory and policy reforms, which I know the noble Lord is aware we are committed to. It will be a key principle driving our new National Planning Policy Framework, which we are committed to publishing for consultation later this year.

Amendment 119, tabled by the noble Baroness, Lady Neville-Rolfe, seeks to ensure that public bodies discharging duties under the Bill pay consideration to the difficulties faced by small and medium-sized developers when engaging with the planning system. I am sure she will know that we appreciate the intention of the amendment and recognise the crucial role that small and medium-sized businesses play in driving up housebuilding rates, particularly by supporting a diverse housing market, responding to local housing needs and supporting faster build-out rates.

We also recognise that this part of the sector has faced incredibly significant challenges in recent years and that the planning system has become disproportionate, contributing to delays, costs and uncertainty. However, this amendment is unnecessary and duplicates the emerging reforms to the planning system.

The amendment would create a statutory obligation for public bodies to have regard to SME-specific issues. This approach is neither necessary nor proportionate. It would impose a legal duty on authorities to demonstrate how they have considered SME concerns and barriers when exercising their planning and development functions. This would create a new burden for local planning authorities and other public bodies. It would also further complicate our complex planning system and create a new avenue by which legal challenges to decisions could be brought.

That said, I assure noble Lords that the Government are committed to improving the experience of SMEs in the planning system. In May this year, we published a site thresholds working paper, seeking views on how we might better support small-site development and enable SME housebuilders to grow. This paper proposed introducing a medium-site definition, alongside a range of proposals to support a more simplified and streamlined planning process.

For applications within this new medium threshold, we are considering simplifying BNG requirements, exploring exempting these sites from the proposed building safety levy; exempting them from build-out transparency proposals; maintaining a 13-week statutory time period for determination; including the delegation of some of these developments to officers as part of the national scheme of delegation; ensuring that referrals to statutory consultees are proportionate and rely on general guidance that is readily available online where possible; uplifting the permission-in-principle threshold; and minimising validation and statutory information requirements. We are currently analysing all the comments received on this working paper, which will inform a consultation on more detailed proposals ahead of finalising our policy approach.

An amendment seeking to define SMEs in an alternative way and adding further steps to the process risks adding further complexity to the planning system and undermining the efforts to support proportionality. For these reasons, I hope that noble Lords will not press their amendments.

[Earl Russell (LD)]

My Lords, I thank the Minister for her response. This has been an interesting and, dare I say, different group of amendments. It is always important to look at principles, particularly first principles, that underline and guide what we do and why we do it. I welcome the Minister’s comments. I take her points about mediation and that we all want fewer disputes. We share all those things in common. I will go away and think about what more could be done with guidance. We want the Government to go a little bit further and support trials and rollouts to see what more can be done to better incorporate this as a tool within our planning system.

On Amendment 119, it is important that we raise these issues. The need to do more for small and medium-sized developers is widely felt among all parties across the House. I recognise what the Government have done on the site threshold paper, and it is welcome that they are looking at the results that have come back from that. I think the House as a whole would welcome further developments from that.

On Amendment 103, obviously the principle of proportionality is important. Less can indeed be more. We wonder what more can be done in this space on regulatory and policy reforms going forward.

With that, I reserve the right of the noble Lord, Lord Murray, to bring back his amendment, should he wish to. I beg leave to withdraw the amendment.

Amendment 69 withdrawn.