Tuesday, 27 July 2010

Mediation in Planning


Up to now I had always been sceptical about the potential role for mediation in planning. The scenario I had in mind ran something like this :

Appellant: “We want to build 500 houses in your Green Belt”
Planner: “Absolutely not.”
Appellant “Well, how about 250 then?”
Planner: “No!”
Mediator to planner: “Well, I wonder whether there might be scope for agreement if you were to allow, say, 100 houses to be built on this Green Belt site?”
Planner: “!!!!!!”

I would be the first to acknowledge that issues of principle like that were never meant to be the subject of mediation, and perhaps we should all now study the report by Leonora Rozee and Kay Powell on "Mediation in Planning" which has recently been published. This report was commissioned in June 2009 by the National Planning Forum and the Planning Inspectorate following up a proposal in the Killian Pretty report which had suggested that the use of alternative dispute resolution at all stages in the planning process should be investigated.

The report describes how mediation can provide a cost effective way of resolving disputes. It includes five case studies, covering enforcement, an Area Action Plan and a major development, and draws upon the results of completed mediations as well as related work, expert interviews and a specially commissioned survey to test opinion, international experience, and relevant literature.

The report concludes that mediation can provide an effective tool to tackle a wide range of planning issues. It recommends that mediation should be strongly encouraged by Government by providing a policy framework, creating capacity to allow its benefits to be realised and establishing an appropriate regime of incentives and penalties to support the delivery of a new approach to planning. Bearing in mind the government’s wish to cut down the scope of the appeals system, this might appeal to them as a mechanism for doing so, although the necessary legislation is unlikely to be ready in time to be included in the ‘Decentralisation and Localism’ Bill, and so will probably have to await the second tranche of planning legislation the government has threatened to unleash on us in a couple of years’ time.

As I indicated above, mediation cannot replace the appeals system and there will always be areas where mediation will not be appropriate, but the report suggests that mediation has genuine benefits which should be considered by everyone involved in the planning process including lawyers, planning officers and consultants. I must take a closer look at it.

© MARTIN H GOODALL

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