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.

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.

Renters’ Rights Bill

Lord Murray of Blidworth Excerpts

Tuesday 22nd April 2025 Lords Chamber

[Lord Empey (UUP)]

My Lords, I declare an interest on the register in regard to this matter.

The Government cannot take this legislation in isolation. As a country, we are taking policy actions that diminish supply and increase demand. Our population is increasing—and that is a deliberate decision. The net effect of that, of course, is that, with local authorities not building properties in the manner and at the rate that they used to, we are creating circumstances where we have a perfect storm of increased demand and reduced supply. The supply is reducing, and the Bill will have the perverse effect of reducing it even further.

We have to take a holistic view. It is not simply a question of dealing with tenancies in isolation; we have to look at the big picture. As we have heard from the noble Baroness, Lady Scott, in her proposal, the vast majority of these people are small-business people. Most people in the sector have these properties as part of what they deem to be their pensions. But equally, we all want to see fairness. We know that “landlord” is almost a dirty word. Historically, we have had Rachman and suchlike tainting the whole sector. There has been a steady drip of measures over the years mitigating against provision in the rented sector, such as interest no longer being offset against tax for people who are doing buy-to-lets and so on. Regulation has increased—some of it very necessary for health and safety, but the burden is going up.

Clearly, in places such as London, there is massive demand that is basically impossible to meet. Unlike countries such as Germany, where the rented sector is totally different—in many cases it is the norm that people rent properties and do not own them—we are in a different place. We concentrate on private ownership of our own properties, so rental is different. Reference was made to assessment. I ask the Minister: has an assessment been made of the impact on the supply of properties?

The number of properties will, I expect, continue to diminish, and that puts extra pressure on local authorities. The LGA has been explicit about that. This is increasing homelessness, and we have the pressures there and the pressures from immigration and from asylum seekers. Yet we are taking measures—whether in this sort of legislation or others—that mitigate against people taking on a private property to rent. Unless somebody can make a profit out of renting, why would they bother? Then you have all the hassle of going through the courts, not getting paid, et cetera.

On the other side of the coin, there are properties that are in a very poor state. We have seen examples of landlords who do not maintain them properly. Nobody wants that, and the Government clearly have a mandate to make change. However, I am far from convinced that the fairness that we all want to see, and which the Government have a right to insist upon, is necessarily achieved by the measures in this Bill. While the proposal from the noble Baroness, Lady Scott, and the noble Lord, Lord Jackson, may or may not be to the Government’s liking, at least one can see where they are coming from and why they are doing it.

If the Government are not prepared to adopt that, let the Minister come forward with a coherent mechanism that a landlord can use if they happen to have a tenant who is not abiding by the rules. It does not have to be Amendment 8; it could be something else, but let us see it, get it on the table and discuss it, so that the consensus whereby we all wish to see improvements can be achieved. There is no point having a Bill the perverse effect of which will be to reduce supply. Nobody will gain from that. I ask the Minister kindly to address that in her summing up.

[Lord Murray of Blidworth (Con)]

My Lords, I too support the amendment tabled by my noble friend Lady Scott of Bybrook. I should say that my wife owns a one-bedroom property which she is in the process of selling, in part because of the potential effects of this Bill and the reasons so eloquently outlined by the previous three speakers.

As a young barrister, I used to practise landlord and tenant. I used to go around the country defending and prosecuting cases of repossession or otherwise, or resisting possession claims for properties. I know how long and painful the process is to try to repossess a property in circumstances where a tenant has not paid rent. I also know the pain that that can inflict on a small landlord who is using the rent to pay the mortgage and to pay the maintenance on that property.

As the noble Lord made abundantly clear in his speech a moment ago, not all landlords are of the Rachman ilk, with thousands of properties under their belt, and out to do down the tenant. As the noble Lord, Lord Jackson, said, in so many cases, this is a relationship of happiness and contentment. The landlord looks after the property and uses the rent money to pay the mortgage on the property and maintain it for the tenant. The tenant has the flexibility of being able to leave that property when they wish, and they do not have the burden of maintaining it. It is an important flexibility within the labour market.

The abolition of Section 21 will have a very damaging effect on our housing market. I say that because the court system is simply not ready for a situation where the only grounds upon which you can take back a property in a circumstance where a tenancy has failed would be by bringing proceedings for non-payment of rent or for some other breach of the tenancy. Those sorts of proceedings take a very long time to work their way through the court system. I recall, as a young practitioner, there still being cases under the 1977 Rent Act where the rent had stayed the same as it was in the 1970s and the tenant was effectively irremovable. It was a nightmare for the owner. It was a rigidity in the housing system, which was ended by the use of Section 21 notices.

To describe those notices as being no-fault evictions is very much only half the story. As the noble Baroness, Lady Scott, pointed out, the purpose of Section 21 notices is to enable an agreement to rent a property to come to an end, perhaps because you want to live in the house yourself, or you want to sell the property because you need the money for some other purpose. Section 21 serves a vital role in the housing market and its abolition is something we would all come to regret.

I therefore strongly urge the Government to consider carefully an exemption for small landlords of the type suggested by my noble friend in this amendment. This is worth very careful consideration. We have not heard enough about the readiness of the court service to implement this abolition.

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[Baroness Taylor of Stevenage (Lab)]

My Lords, I thank the noble Baroness, Lady Scott, for moving Amendment 8, and the noble Lords, Lord Jackson, Lord Empey and Lord Murray, and the noble Baroness, Lady Thornhill, for their comments. This amendment would allow fixed-term initial tenancies where the landlord lets fewer than five properties. As I am sure the noble Baroness would expect, the Government cannot accept this amendment. It would be neither fair nor justified for some tenants to have fewer rights, simply because the landlord happens to have a smaller property portfolio at the point at which the tenancy is entered into. All tenants must enjoy the benefits of the new system and the flexibility that periodic tenancies provide.

I have already commented on the likely impact on the market under Amendment 1. As I mentioned earlier, the noble Baroness referred to changes to the law in Scotland, which was very different in the important matter of rent controls. I met with the Scottish Housing Minister during the recent British-Irish Council and discussed this with him in order to learn lessons from what happened in Scotland.

The English Private Landlord Survey shows that 83% of landlords have four properties or fewer. Accepting this amendment would mean fixed terms remaining available for half of all tenancies. This would clearly fly in the face of what this Bill is trying to achieve. It would definitely break the manifesto commitment that we have already clearly set out and which we stand by.

It is also important to clarify that retaining fixed terms would not preserve the Section 21 eviction process, although this is a common misconception. Nor would it automatically retain the accelerated court procedure used for Section 21 claims, which allows cases to proceed without a hearing. If this amendment were accepted, landlords would still be required to seek possession using one of the grounds in Section 8 of the Housing Act 1988, for which the accelerated court procedure is not available. The removal of Section 21 evictions is the cornerstone of this legislation, and the Government will not accept its reintroduction to reduce court costs or for any other purpose. The noble Lord, Lord Murray, was a Minister in the last Government. I remind him that his Government also had the policy of removing Section 21 evictions. The noble Lord must have had a memory lapse in the Chamber this afternoon.

The noble Lord, Lord Jackson, referred to the cost of court possession hearings for smaller landlords. We are confident that the Bill does not levy unfair new costs on landlords. However, it is reasonable to expect landlords to ensure that their business model covers the possible cost of possession cases proceeding through court. The current accelerated court procedure is not a guarantee of avoiding court proceedings or the associated costs.

I will comment briefly on the points made by the noble Lord—

[Lord Murray of Blidworth (Con)]

Can the Minister give us a rough estimate of the legal costs of repossessing a flat on the grounds of non-payment of rent, from beginning to end of the proceedings?

[Baroness Taylor of Stevenage (Lab)]

I am sure the noble Lord has a figure in mind. I will write to him; as he would expect, I do not have that figure at my fingertips.

The availability of court hearings is vital for tenants’ access to justice, especially in the new system whereby landlords must always evidence that grounds are met. We are working closely with our colleagues in the Ministry of Justice and HM Courts & Tribunals Service to make the possession process more efficient and easier to understand. The noble Lord, Lord Jackson, made a very good point. It can be difficult for both landlord and tenant to understand the process. They may be deterred from accessing the legal redress to which they are entitled because of difficulties in understanding how it works.

We are also committed to digitising the process. I can reassure the noble Lord that we are working closely with the MoJ to make sure that the justice system is fully prepared to implement the Renters’ Rights Bill once enacted. I am not going to guarantee end-to-end digitisation of the whole court system—that is way beyond my remit in this Chamber—but we are working on it in relation to renters’ rights. This includes a commitment to digitising the county court possession process to create a modern, efficient service for court users. I was reassured to find that this is being built on to an existing system, rather than being created from scratch. Work is proceeding at pace on that.

The noble Lord, Lord Empey, and the noble Baroness, Lady Thornhill—