Doing different and doing better
John Pugh-Smith considers how, more creatively, to ease the lockdown in a planning context.
There is a saying in Norfolk that we “do different”. On the humorous side it may have prompted a recent BBC TV series about an eccentric landowner [1] but on the more serious it has led to collaborative workings between the local planning authorities which have included not just shared services but, for example, the construction of the Northern Distributor Road facilitating greater access to the new urban extensions around Norwich through Joint Development Plan making.
With growing and ever more strident calls for relaxing section 106 obligations in the wake of “The Lockdown” [2] and the publication of the MHCLG’s Coronavirus (COVID-19) Planning update and associated Coronavirus (COVID-19) Community Infrastructure Levy guidance on 13 May 2020 [3] where can these calls and their current Governmental responses be sensibly taken next?
Under the heading ‘Community Infrastructure Levy’ the MHCLG’s Planning update states the following:
The Community Infrastructure Levy regulations provide only limited flexibility to local authorities to defer payments. Both local authorities and developers have expressed concerns over the impact this may have on developer cashflow at the present time. In view of this, we intend to help small and medium sized developers by introducing amendments to the Community Infrastructure Levy Regulations 2010 to enable charging authorities to defer payments, to temporarily disapply late payment interest and to provide a discretion to return interest already charged where they consider it appropriate to do so. The easements can be applied to developers with an annual turnover of less than £45 million. It is intended that these easements will not be open-ended and will be removed when the economic situation has recovered. CIL regulations are subject to an affirmative resolution procedure, which requires debate in Parliament. However, existing flexibilities and the Government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control. Further guidance for local planning authorities on the use of developer contributions under the current circumstances has been published.
The associated CIL Guidance advises that until such amendment regulations [4] are able to take effect:
- CIL charging authorities are encouraged to consider making use of the ability to introduce an instalment policy (or amend an existing instalment policy); and
- noting the government’s clear intention to introduce legislation to permit deferral of CIL payments and disapply late payment interest for SMEs, CIL collecting authorities are encouraged to use their discretion in considering what, if any, enforcement action is appropriate in respect of unpaid CIL liabilities; and
- CIL authorities should take a positive approach to their engagement with SME developers, to ensure CIL liabilities do not cause undue burdens over the period of disruption caused by the coronavirus
- CIL authorities should note the existing flexibilities they have around enforcing CIL for larger developers, including flexibilities over the imposition of surcharges. Late payment interest will remain mandatory where such flexibilities are used.
In respect of Section 106s the CIL Guidance optimistically also states:
There are greater flexibilities within s106 planning obligations than CIL. Where the delivery of a planning obligation, such as a financial contribution, is triggered during this period, local authorities are encouraged to consider whether it would be appropriate to allow the developer to defer delivery. Deferral periods could be time-limited, or linked to the government’s wider legislative approach and the lifting of CIL easements (although in this case we would encourage the use of a back-stop date). Deeds of variation can be used to agree these changes. Local authorities should take a pragmatic and proportionate approach to the enforcement of section 106 planning obligations during this period. This should help remove barriers for developers and minimise the stalling of sites.
However much that advice, like that underlying the Prime Minister’s statement last Sunday, 10 May 2020, expects the application of common sense, and, now commercial pragmatism, without the continuing adoption of a “stick and carrot" approach how is it really going to work in practice?
It may be recalled that a former Secretary of State for Communities and Local Government, (Lord) Eric Pickles, perhaps on the advice of his then Planning Minister, (Sir) Bob Neill [5], 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. 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.
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 25 April 2013 but with a “sunset provision” of 30 April 2016. Although there were shortcomings in the published DCLG Guidance[ 6] and the consequent need for parties to rely both on RICS Professional Guidance [7] and a series of appeal decision letters, and, the occasional High Court challenge [8] 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 .
Next, by way of necessary historic review, is the use of 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 [9]. 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 [10] 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. Again, this alternative process could yet offer a “third way” to provide “the stick”.
The fourth, and, an easy “win” for overworked MHCLG officials would be an addition to the “appeal costs” section of the Planning Policy Practice Guidance [11] covering e.g. a refusal to allow facilitated negotiations of planning obligations as another example of unreasonable behaviour. Although last officially recommended in the National Planning Forum/Planning Inspectorate Joint Report “Mediation in Planning” (June 2010) [12] this obvious sanction, clearly reflected in all forms of procedure and protocol emanating through the Ministry of Justice [13] and even within the Arbitration Act 1996 [14] yet lies effectively “untaken” within the planning process. Surely, it is now time to include such a reference.
Finally, and more holistically, Westminster could follow 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:
268A Promotion 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.”.
At its recent evidence session, held online, on 4 May 2020 the All Party Parliamentary Group on Alternative Dispute Resolution heard from a number of expert witnesses, including myself, on the subject: Land-use assembly, planning, compensation and ADR: lessons learned and next steps [15].
Amongst the panel speakers was 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 [16] 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?
So, by way of conclusion, there are a number of tried mechanisms by which we can “do different” as we ease the land-use planning system out of the effects of The Lockdown”. Indeed, there is more than a degree of irony that, seemingly, the Chinese characters for the word “Crisis” also can spell “danger” and “opportunity” .Surely, now is the time to start actively seizing those opportunities both from the “top down” and “bottom up” if we are going to achieve lasting beneficial changes from the far reaching effects of this pandemic.
John Pugh-Smith FSA FCIArb practises as a barrister from 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. or by telephone at 020 7832 1111.
John is also a member of the RICS President’s appointment panel. He has acted as advising counsel and also an arbitrator, independent expert and dispute facilitator on a variety of references concerning the interpretation of section 106 and development agreements. He served as one of the DCLG’s panel of “Section 106 brokers” and currently acts as one of the two technical advisers to the All Party Parliamentary Group on Alternative Dispute Resolution and as a member of the Design Council’s Highways England Design Review Panel.
[1] http://www.wivetonhall.co.uk/normal-for-norfolk/
[3] https://www.gov.uk/guidance/coronavirus-covid-19-planning-update https://www.gov.uk/guidance/coronavirus-covid-19-community-infrastructure-levy-guidance
[4] The CIL Guidance states: “CIL regulations are subject to an affirmative resolution procedure, which requires debate in Parliament. However, existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate, they will not be charged extra for matters that were outside of their control".
[5] See Bob Neill’s Foreword to “Mediation in Planning: A Short Guide” (June 2011)
[6] Section 106 affordable housing requirements: Review and appeal (April 2013) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/192641/Section_106_affordable_housing_requirements_-_Review_and_appeal.pdf
[7] https://www.local.gov.uk/sites/default/files/documents/document-fdc.pdf (2012) now extensively revised and updated by the RICS with a new Professional Statement effective from 1st May 2019: https://www.rics.org/globalassets/rics-website/media/upholding-professional-standards/sector-standards/building-surveying/financial-viability-in-planning-conduct-and-reporting-rics.pdf
[8] Including the last “throw of the dice” as to the retrospective effect of the legislation in York City Council v One (Leeds) Ltd [2018] EWCA Civ 1883
[9] Sections 158 & 159 of the 2016 Act
[10] The initiative had been actively promoted by Brandon Lewis, then Planning Minister
[11] https://www.gov.uk/claim-planning-appeal-costs
[12] https://www.ihbc.org.uk/news/docs/Final%20Report%20-%20Mediation%20in%20Planning%20-%20PDF020710.pdf
[13] Civil Procedure Rules CPR 44.2: Upper Tribunal (Lands Chamber) Practice Direction 2010; Pre-Action Protocol for Judicial Review, and, regular judicial pronouncements, most recently DSN Ltd v Blackpool Football Club Ltd [2020] EWHC 670 (QB) @ 28:”
“ …. Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in their ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money. Even if they do involve payment of money, the amount may compare favourably (if the settlement is timely) with the irrecoverable costs, in money terms alone, of an action that has been successfully fought …. .”
[14] Section 61(2)
[15] The Session recording and the slides can be viewed on the following link: https://www.ciarb.org/policy/uk-appg-on-adr/appg-projects/. A separate article will follow in due course.
[16] What do we mean by Mediation in this context? While a more traditional view of mediation would see (usually two) parties coming together across a table in a formal setting, mediation can in fact be carried out through a variety of approaches and these other approaches may be better suited to certain areas of the planning system. Mediation can be woven into public engagement processes within the planning system as a means to promote greater dialogue, understanding and consensus – which supports the Scottish Government’s aim to ‘front-load’ early and meaningful engagement. Examples include the use of a mediative approach to wider public engagement activities, including workshops, charrette-style processes and also a civic mediation style approach where the conflict can involve a large group of people each with different thoughts and ideas. The use of mediation has the potential to support a more inclusive planning system by enabling more people to express and contribute their ideas in decision-making.
See also the joint article by John Howell MP and John Pugh-Smith: Mediation and Planning Disputes (Feb. 2020).
