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How does ADR help "to do better"?

In this second article John Pugh-Smith reviews the results of recent membership surveys of the Compulsory Purchase Association and the Planning and Environment Bar Association and their successful outworkings particularly in the fields of compulsory acquisition and statutory compensation.

In my article “Doing Different & Doing Better: How, more creatively, to ease ‘The Lockdown’ in a Planning Context” [1], following the publication of the MHCLG’s Coronavirus (COVID-19) Planning update and associated guidance on 13 May 2020 [2] I explained that there are a number of tried and tested mechanisms, both statutory and through Government initiatives, by which we can now “do different” as we ease the land-use planning system out of the effects of The Lockdown”.

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” [3]: As well as drawing from my experiences, not only as instructed counsel but also as the neutral dispute resolver, I was able to draw from the results of recent membership surveys of the Compulsory Purchase Association and the Planning and Environment Bar Association. These necessarily overlapping surveys took place earlier this year and prior to the start of the March “Lockdown”. It also heard from 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.

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% response rate was achieved [4] 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% of respondents confirmed that they had acted as advocates in CPO matters and 41% in planning. As expert witnesses in CPO matters 40% had so acted and 10% had done so in planning ones. As independent experts 12% of respondents had acted in that capacity in CPO and 8% in planning matters. As mediators, nearly 10% had so acted in connection with planning matters and 8% with CPO issues followed, as facilitators, by just over 5% 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% of respondents stated that it had been positive, of which 12% had been impressed and 17% relieved.  Even where the ADR process failed while 13% had negative perceptions, 5% remained positive; and in 27% of cases opinions varied between the parties as to the outcome.

Finally, in the context of this article, when respondents were then asked to rank “the drivers required to change behaviours in relation to ADR”, 38% of them placed, first, legislation followed by professional guidance (28%), then procedural requirements (14%), then educating clients (13%) and training at 7%. Procedural requirements received the second highest ranking at 35% followed by professional guidance at 32%.

While the cynic may quip that statistics, like a drunk leaning against a lamp-post, are there to provide more necessary support than illumination 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 [5] [6] 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 current Practice Directions for the Upper Tribunal (Lands Chamber) [7]; and it is my understanding that there is likely to be an even greater expectation stated in the forthcoming replacement version.

So, while the flexibility and pragmatism encouraged by the MHCLG’s May 2020 Covid-19 guidance is welcome it fails to make any mention of ADR techniques even in the context of helping to speed up compensation payments. Given the real and tangible benefits arising from the use of ADR as well as the clear steer from the Upper Tribunal (Lands Chamber) surely Central Government, particularly MHCLG and DfT, could reap greater benefits including both the earlier delivery of projects and savings in their costs of physical achievement if that steer was to be rearticulated at Ministerial level, and, soon. Now is the time to start actively seizing these various opportunities both from the “top down” and “bottom up” if we are going to achieve those lasting beneficial changes that we all desire 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] https://www.39essex.com/planning-environment-property-newsletter-14th-may-2020/ https://www.localgovernmentlawyer.co.uk/planning/318-planning-features/43677-doing-different-and-doing-better

[2] https://www.gov.uk/guidance/coronavirus-covid-19-planning-update; https://www.gov.uk/guidance/coronavirus-covid-19-compulsory-purchase-guidance#dealing-with-claimants  

[3] The Session recording and the slides can be viewed on the following link: https://www.ciarb.org/policy/uk-appg-on-adr/appg-projects/.

[4] 136 replies of which 39 were both PEBA as well as CPA members

[5] http://www.compulsorypurchaseassociation.org/land-compensation-claims-protocol.html  (October 2018)

[6] ttp://www.compulsorypurchaseassociation.org/files/ADR.pdf   

[7] Rule 2(1) of the 2010 Rules provides: “The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly”. Rule 3 encourages the Tribunal to seek, where appropriate:

(a) to bring to the attention of the parties the availability of any appropriate alternative procedure for the resolution of the dispute; and

(b) if the parties wish and provided that it is compatible with the overriding objective, to facilitate the use of the procedure.”

The Practice Directions 2010, in relation to stays of proceedings, state:

1) Parties may apply at any time for a short stay in the proceedings to attempt to resolve their differences, in whole or in part, outside the Tribunal process …” (para. 2.1)

In the context of costs Para. 2.2, as to ADR, supplemented by the main costs considerations in Ppara. 12.2, provide that: the conduct of a party will include conduct during and before the proceedings; whether a party has acted unreasonably in pursuing or contesting an issue .

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