This important consultation closes on 19 March and asks for responses on how to speed up s.106 negotiations, including by dispute resolution.

We doubt many respondents will disagree that s.106 negotiations are often a significant cause of delay, but what can be done is not straightforward. The emphasis on statutory timescales and standardised clauses is understandable, but it will be rare for a complex s.106 agreement to be settled so quickly and in a “standard” form.

The idea of dispute resolution has been mentioned before in the guise of mediation but the stumbling block has been that whatever the outcome, only the local planning authority (or an inspector or Secretary of State) can grant permission. It would be possible to legislate for a “deemed” grant in appropriate cases so that the decision of the external expert could be binding – but that may not be seen to be in the spirit of “localism”. The selection of the expert would be critical to confidence in the system. 

But how much time would that save in any event? Part of the problem is the early allocation of appropriate resource to the negotiation. Too many authorities wait until resolution before instructing their lawyers. The other point to mention is the level of detail required by many authorities. For developments which will be delivered over many years, it would be of great benefit to allow details to be approved at relevant future stages rather than all to be signed off before the grant of permission.