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The cost of adversarial practice




Earlier this month, the Home Builders Federation revealed that over the last three years, more than £50 million of taxpayer money was spent on external legal advice on planning appeals in England. It described the amount as “staggering”.

 

It is indeed staggering and, aside from the obvious more productive uses of these monies, it represents adversarial practices, borne out of mistrust and resentment.

 

 

Here in London planning appeal funds are in full flow. On my patch in Mortlake, where the long-running quest by Reselton Property ( a subsidiary of Singapore-based City Developments Limited) for planning permission to redevelop the Stag Brewery is reaching its final hurdle at the end of this month, a local community group is crowdfunding to engage a barrister to represent them. They are aiming to raise £40k.

 

 

On the Southbank, the Waterloo Community Development Group has established an appeal fund seeking £20k to support their case in a judicial review of plans to redevelop the former ITV site at 72 Upper Ground.

 

 

These sums are a drop in the bucket compared to what the landowners/developers seeking planning permission are spending to represent their cases in appeal, and what local authorities spend in covering these appeals. The Home Builders Federation estimated that English local authorities spend an average of £45k each year on legal costs related to planning appeals.

 

 

Not only do these appeals involve a lot of money which could be used in ways that benefit local communities, but they erode trust and goodwill between and among stakeholders in these projects. The more parties are invested in this adversarial behaviour the more skin in the game they feel and less likely to compromise, resulting in a zero sum exercise where one party will always “lose”. But, in fact, we all lose when nothing gets built as a result.

 

It doesn’t have to be this way.

 

When I joined Bovis Construction in the early 1990s, the company had recently been placed under the visionary leadership of Sir Frank Lampl, whose overriding objective for the company was to shift its approach from adversarial to non-adversarial contracting.

 

Sir Frank was an exceptional leader whose vision extended beyond Bovis. Those unfamiliar with how the UK construction industry has changed over the last few decades can learn a lot from his extraordinary life and career. Sir Frank’s approach won many admirers across the built environment sector:

 

“Obviously a chief executive's duties are focused on enhancing shareholder value, but the reality is more complicated. You have to strike a balance between the interests of clients, shareholders, employees and the community."

 

Sir Frank was also a key supporter of the influential Latham Report, published in 1994. “Constructing the Team” was commissioned by the UK government and authored by Sir Michael Latham. as a response to the widespread recognition of systemic problems within UK construction marked by inefficiencies, low productivity, adversarial relationships, and a general lack of collaboration within the industry.

 

The Latham report was produced after a year of consultation involving every corner of the construction industry. It is impossible to overstate the report’s influence on the debate around how the construction industry works - or should work - in the decades since its release.


Although there had been previous attempts to reform the industry, Latham’s report was the first to diagnose the particular problems blighting construction in the early nineties, and came up with a startling prescription: to cut out the adversarial culture in construction and learn to collaborate - client, contractor, subcontractor, consultant - for the common good of the project and the community it serves.


Most of the industry responded positively to the Latham report and new forms of non-adversarial contracting and practice emerged that are the norm today. It’s uncanny how relevant the report’s recommendations for the construction industry in 1994 are for the whole of the planning system in 2024.

 

 

We desperately need a similar consultative and constructive review for the planning system focusing on non-adversarial and collaborative practice. Anyone up for a crowdfunder?

 

 

 

Clare Delmar

Listen to Locals

17 May 2024

 

 

 

 

 

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