Blake Lapthorn held a presentation entitled 'mediation in planning: the NPF and Planning Inspectorate's Report on Monday 15 November 2010.

1. Planning and Mediation
Henry Gordon Lennox
Barrister and Mediator
henry.gordonlennox@bllaw.co.uk

2. Mediation – what is it?
Facilitated negotiation between parties
Entered into voluntarily
Mediator is neutral in relation to parties & outcome
Solution (if there is one) is agreed to by parties
Compare to arbitration where binding decision imposed

3. Key benefits
Intended not to be ‘adversarial’
– rather informal
Time
Costs
Agreed outcome
– Both parties ‘satisfied’
– As opposed to one winner & one loser

4. Planning – where is it going?
At the national level
– Abolition of Community Infrastructure Levy?
Revision more likely!
– Abolition of Infrastructure Planning Commission
– Radical reform of planning system
– National Planning Framework
At the regional level
– Revocation / abolition of Regional Spatial Strategies
– Or are they – Cala Homes decision!

5. At the local level – the ‘localism agenda’
– ‘Bottom up’ local plans derived from aspirations of locals
– ‘Community Right to Build’
– Collaborative design of ‘significant local projects’ to ensure
involvement by the neighbourhood
– “fast track” consents
– 3rd party rights of appeal
– “Garden-grabbing” – PPS3 amended to preclude
– Amend Use Classes Order – local plan to allow range of uses
– Presumption in favour of sustainable development

6. Scope for mediation in planning field
Mediation’s place in planning;
– Killian / Pretty review
Scope within areas of planning obligations / enforcement
– Under the Coalition Government and ‘localism agenda’
– clearly it will be an invaluable tool!

7. Planning Applications / Spatial Planning
Relationships
Shift in emphasis to ‘satisfying’ communities not LPAs
Community / developer relationship now crucial
Planning is typically controversial
‘Development’ not generally welcomed by communities
Inherent tensions
Energy provision for example – cf to Climate Change agenda
Housing provision
‘Fast track’ consents
Communities ‘requesting’ more than they should
Third party right of appeal

8. Enforcement
Unlikely ‘localism agenda’ will empower communities
any further in this area
– Possibility of local referendums on any ‘local issue’
Multiple parties
– LPA, complainant(s) and owner / occupier
– Sides become entrenched
– Often don’t see possible common ground / resolution

9. S106 Agreements
Already flexibility with contributions / obligations
e.g. affordable housing
Increased community interest generally
Policy v community interest
What if the community doesn’t want policy requirement?
Viability issues

10. Conclusions & thoughts
Most significant change to planning system in 20
years!
– Shift in emphasis to satisfying communities and not LPAs
Developers and LPAs to respond to community wishes
– Inherent tensions over ‘development’
Particularly in respect of waste / energy
Community wishes may ignore bigger picture
– Threat of third party right of appeal
In the right circumstances mediation can play a critical role
in negotiating a way through to a satisfactory outcome for
all parties

11. Report on Mediation in Planning
June 2010
Commissioned by the NPF and Planning Inspectorate
Presentation by:
Leonora Rozee OBE and Kay
Powell on 15 November 2010

12. Background to our study
Research into the use of mediation in planning
commissioned by the Planning Inspectorate ‐
early 2000s
Support in Kate Barker’s report ‐ 2006
Recommendation in Killian‐Pretty Report 2009
BUT....not much evidence of its use

13. Project funders and supporters
National Planning Forum and Planning Inspectorate,
Planning Advisory Service ‐ funding
Cross‐sector Steering Group ‐ expertise, advice,
venues
Mediators and those involved in mediations
Individual contributions

14. Definition
Definition from the Scottish Government
Guidance used in report ‐ put simply:
Mediation is a cost effective way of resolving
disputes with the help of an independent third
party.

15. Evidence streams
Mediation of live planning cases
Completed planning and related mediations
Relevant literature and practice
Review of cases where mediation didn’t take
place after initial expression of interest
Role of HCA ATLAS
Role of Planning Aid
Survey of Local Authority Planning Officers
Survey of a range of experts

16. Key Findings: Barriers (1)
Need for clear definition
Significance of language
Importance of neutrality
Availability of expertise
Timing: impact on delivering quick decisions
Relationship to democratic process
Role of elected members

17. Key Findings: Barriers (2)
Balance of power
Planning culture
Need for appropriate support
Diversity
Funding

18. Key Findings: Opportunities
Mediation already embedded in our civil justice
system
Increasing interest in the use of mediation in
planning
New tool to support Government agenda for a
radically different planning system
Potential to save money and time

19. Recommendations
Develop and build a market for mediation
a delivery strategy
cost‐benefit models incl. non‐monetary benefits
ongoing pilots
promotional material
monitoring of take‐up
Provide advice and guidance
develop practical guidance
advice and guidance on mediator skills

20. Recommendations
Develop skills and create capacity
embed mediation in policy
ensure planning procedures allow time to
mediate
encourage existing mediation providers
identify funding opportunities
support establishment of community mediation
provide bespoke training packages on mediation
for all sectors

21. The Report
A copy of the full report is on the National
Planning Forum and Planning Inspectorate
web‐sites:
www.natplanforum.org.uk
and
www.planning‐inspectorate.gov.uk

22. Next steps
Delivery of our Recommendations ‐ supported
by a cross‐sector Programme Board
Ongoing Communication ‐ about the report and
the delivery programme (including a workshop at
the Planning Convention, another at Planning
Summer School, here today, and at other events
this autumn/winter
Encouraging LPAs, developers and consultants
to make more use of mediation in planning ‐
please let Leonora or me know if you are
interested!