I am conscious that I have not yet published anything on this site about mediation or about town and country planning.  I will remedy this now by posting a talk I gave seven years ago in memory of a great friend who was a giant in the connected worlds of the Planning Bar and the Parliamentary Bar, of which he was the leader. [I will tell one day of my only (rather surprising) appearance before a Parliamentary Committee examining a Private Bill, but this memory will have to wait].

The lecture was first published on the website of Peter Boydell’s old Chambers at Francis Taylor Building, who are the sponsors of this splendid series of memorial lectures, but I think it is worth another airing now.
Was I, as so often, a voice crying in the wilderness, or is something beginning to stir?  I would be very interested to hear from anyone who has had practical experience, good or bad, of the use of mediation in a planning matter since the date of my lecture.

 

Mediation and Planning

The role of Mediation in Planning and Environmental Disputes

The First Peter Boydell Memorial Lecture

By Sir Henry Brooke[1]

Inner Temple Hall, 13 May 2008

I am very privileged to have been asked to give this first lecture in a series that will be dedicated to the memory of Peter Boydell.

Peter was a friend of mine. He was one of the kindest of men. He was also for many years a giant of the Planning Bar, and, more importantly, of the Parliamentary Bar. He was completely at home in the Committee corridor in Parliament whether he was promoting a Bill or opposing one. I am told by those who saw him there that he was capable of beguiling the most cantankerous of committee members, whatever their political or social background.

It is difficult to capture the essence of advocacy in words. A skilful and successful cross-examination unfolds slowly. To appreciate it fully one needs to have been there, or to have the time to study a long transcript. As a former appellate judge I know that if one wasn’t there, it is not easy to recapture the atmosphere of the courtroom. And if the cross-examination concerns not the death of the defendant’s wife’s lover in questionable circumstances, but the status and value of the green wedge between Brighton and Shoreham, it is even less likely that it will live in the eyes of posterity.

Peter Boydell was masterly as an advocate. He had a commanding presence and a clear and attractive voice. He obtained his results by meticulous preparation. This enabled him to bring a high degree of polish to his questions and to his speeches, to which he added a mixture of charm and spontaneous wit. He retired before mediation was much in vogue. But because he combined authority and charm, I have no doubt that if he had ever turned his skills to learning the role of the mediator, as I have done, he would have achieved great success there, too. I hope that he would have felt it fitting that the first lecture given in his memory should be on the subject of mediation in his specialist field of practice.

I spent 45 years of my life in civil litigation. I first learned about the value of mediation in this field in 1997. In the previous year Lord Woolf had urged us all to take the possibilities of Alternative Dispute Resolution (ADR) much more seriously.[2] This was why every training course before the new rules were introduced included a 45-minute session on mediation. I was lucky enough to listen to a skilled US mediator and a skilled English mediator, and what they told us that day, and the video they showed us, caught my imagination.

I will now “fast forward” to May 2008. I now chair the Civil Mediation Council (the CMC). Since I retired 20 months ago I have become an accredited mediator. I have conducted over 40 mediations on my own, with a success rate of 80%. Most of my mediations have involved private litigants, but I have recently conducted two large mediations involving public authorities. The process isn’t very different and the success rate (for an experienced mediator) and the high degree of customer satisfaction are very much the same. I am aware of at least one successful mediation involving a claim against the Environment Agency which averted the need for Lands Tribunal proceedings.

Facilitative mediation is the form of mediation adopted by most UK practitioners. It is about encouraging the parties to move away from positional negotiation, where they adopt a position from which they are very reluctant to budge, to principled negotiation. Here they are helped by a third party neutral to consider the strengths and weaknesses of their case, and the strengths and weaknesses of the other side’s case; to weigh up the risks of sticking to their original position; to identify what they are really wanting to achieve; and above all to compare the merits of what is on offer through the mediation with what the pundits call the BATNA – the Best Alternative to a Negotiated Agreement.[3] In a litigation context this generally means the beginning or the continuation of litigation; the expense and the stresses that this involves; the mainly irrecoverable cost of management time; and an assessment of the chances of getting a better result at the end of the litigation than what is already on offer through the mediation.

If two or more parties are in dispute, mediation is a natural staging post between the initial falling out and all the expensive paraphernalia of adversarial litigation. I learned the other day that an ancestor of mine had acted as the medical officer in attendance 194 years ago at the last fatal duel on Welsh soil.[4] In a duel the parties often did not engage an agent to negotiate a settlement for them, let alone a third party neutral. They moved straight from the insult to the shoot-out. Unlike mediation, duels seldom produced an answer which satisfied both sides. In that respect they differed little from litigation. At the end of a successful mediation, on the other hand, I have witnessed time and again relief, pleasure or delight on both sides’ faces, and on at least two occasions cross-party hugs and kisses as well, though I don’t suppose that will ever happen in the planning field.

Twelve years down the track, then, mediation has come to stay as an integral add-on to our litigation processes. In an important speech on ADR in India six weeks ago the Lord Chief Justice said that it was madness to embark on litigation without seriously considering the possibility of a mediated solution.[5] The Master of the Rolls said much the same when he addressed the Association of Personal Injury Lawyers last month:[6] five days ago he added that judges should be willing to direct that mediation takes place in appropriate cases[7]. And last month, too, the wording of the Allocation Questionnaire, which is sent to the parties to litigation once the defendant has intimated an intention to defend a claim, was altered. It now reminds both sides that parties to litigation are encouraged to consider ADR seriously. It reminds them of the possibility of costs sanctions if they refuse to do so. And it tells them about the different mediation options available to them. They are also asked to say whether they would like the claim stayed immediately to give mediation the chance to resolve the dispute before things go any further, and if they would like the court to help arrange this.

It is not only in civil litigation that the ice-packs are melting. In the employment field he Government is scrapping the statutory grievance arrangements it introduced only four years ago to give workplace mediation a real opportunity to kill a dispute at birth before it starts to fester. The CMC is now discussing with workplace mediators how we might create a directory of registered mediators along the lines adopted for recognising dependable firms in the building industry.

These leaps into the future in two quite different areas of dispute resolution have happened because all the major parties in the relevant field have learned what mediation can achieve. They have identified the institutional obstacles to mediation. And they are changing the rules of the game, when necessary, as they embark on a major programme of behavioural change. People’s eyes are being opened to the possibility that there may be a better and a more cost-effective and a more satisfying way of resolving many disputes than by adopting the adversarial model that is now so well entrenched in all our psyches.

So much for mediation in civil litigation and in the workplace. What about mediation in the planning field? In this lecture I will go back again to 1996 and tell you a little of what has happened – or not happened – since then. I will then say something about the lessons we have learned, and the areas where I believe that mediation may have a lot to offer. But it will offer nothing at all unless all the major players – and I include in this the Government and the Planning Inspectorate – evince the same determined willingness to move things forward as the major players, including the Government and the senior judiciary, are displaying in other fields.

I said I would go back to 1996. In that year, the Chief Planning Inspector, Chris Shepley, started a public debate about what mediation might have to offer in the planning field.[8] There were also articles about mediation in the specialist journals, describing the successes it had achieved abroad, notably in New South Wales[9] and the United States.[10] All this enthusiasm led to the initiation of a departmental pilot project in 1999-2000[11], and a follow-up research report in 2002.[12]

But it did not lead to very much else. Pious incantations were pronounced every time new policy guidance was given, or new studies were conducted into our planning arrangements, usually under the unwritten mantra “There must be a better way.” Lip service was paid to the value of mediation in the planning field in the departmental publications Planning Appeals (January 1997)[13]; Modernising Planning (January 1998)[14]; Modernising Local Government (1998)[15]; Modernising Planning – Streamlining the processing of major projects (1999)[16]; Local Development Frameworks (September 2004)[17]; and Planning Obligations (Circular 05/2005)[18].

In her important report in 2006[19] the economist Kate Barker told the Government that the greater use of mediation might be a more attractive option for reducing the number of appeals. Potential issues might be ironed out at an early stage without having to resort to a lengthy and expensive appeal process. She supported an earlier recommendation to the effect that a National Planning Mediation Service should be established.[20] She said that the Department should set up this service as a useful mechanism within the planning system. The Government responded with yet another pious incantation:

“The Department supports the principle of mediation and will work with relevant professional bodies to promote voluntary mediation services by local authorities as part of good practice.”[21]

It was as if this Department had never heard of the Government’s ADR Pledge in 2001.[22] Unsurprisingly, the same Department had zilch to say about its efforts to implement this Pledge in the Government’s 2006-7 Annual Pledge Report.[23] Nul points for mediation there.

So where do we go from here? Compromise is not always a virtue. In his book On Compromise, published in 1874, John Morley said that accommodation with other people was a good thing except when one was expressing one’s own opinion. There he allied himself with Martin Luther who famously said Here I stand I can do no other. There is a lot of scope for debate about the value of compromise in politics, although Margaret Thatcher never believed in it. But the point I want to make here is that planning involves public values. Although there will be plenty of scope for debate about what those values ought to be, they should be non-negotiable once they have been adopted. It should therefore come as no surprise that there are “no-go” areas for mediation in the field of planning law and practice.

Let me tell you some facts about the planning system.

The litigating public has to pay in court fees the entire cost of providing the judges and their courthouses. It did not have to pay for the Planning Inspectors or the accommodation in which they plied their trade. In 2005-6 there were 22,000 planning appeals in England and Wales. This figure was expected to rise to 25,000 by the end of the decade. Two years ago the Planning Inspectorate cost £30 million to run. The average cost to the Inspectorate of a planning appeal considered at a hearing was £1,477: a five-day inquiry cost £2,341. [24]

Government views these figures with alarm. Hence all the proposals for streamlining the planning system and introducing a fee regime. And hence the recurrent suggestions that mediation might help, not only by saving money but by introducing a more satisfactory way of arriving at many decisions.

In this lecture I shall consider why it is that mediation has not taken off yet in the field of planning. I shall suggest that it could and should have a valuable role to play. I shall propose ways in which it could and should be taken forward. And I shall end by looking at the potential for mediation in different corners of the planning field.

A typical planning dispute does not involve a dispute between parties about a right. It is an argument between a landowner and a local authority about what is appropriate. There is the added complication that third parties are entitled to contribute to the debate. It is wrong to assume that an applicant for planning permission, or an appellant who challenges a refusal of planning permission, can be equated with a claimant in civil litigation, with the local authority in the role of a defendant.

It follows that there are adjustments that must be made if mediation is to work in a planning context. An obvious adjustment relates to the accommodation of the interests of third parties. This is an important practical difference. A more profound difference arises from the essential nature of a dispute in the planning field, when compared with a dispute in the context of civil litigation.

A typical planning dispute arises from a collision between the private interest of the landowner and the interest of the public at large, represented by the local planning authority (LPA). There may of course be disagreement about what the public interest requires. But if the public interest will be harmed by what is proposed, development should not be permitted. This is not a matter which should be susceptible to compromise. What is more, some decisions involve the application of policy. There may be scope for reasonable men and women to hold differing views about what policy requires, but it is inappropriate to imagine that the correct application of policy can properly be part of a process of negotiation between a developer and a LPA.

If I am right about this difference between a planning dispute and a civil dispute, it follows that the scope for mediation may be constrained. But even if we accept this limitation, it does not mean that mediation may not have a very useful role to play.

I will give four illustrations of what I have said so far.

A developer applies for permission to build 30 houses. The site is in the Green Belt. Or there may be other powerful planning policy reasons why the site should not be developed. A judgment by planning officers about the appropriateness of upholding the policy objection may or may not be correct. But it is not a matter for negotiation or mediation. The developer may, however, say that there is such an urgent need for new houses that this should override the policy objection. Issues about the availability of housing land often arise in cases of this kind, and disagreement is common. The resolution of this kind of issue will be susceptible to mediation.

To vary the example, it may be that the dispute is not about the principle of development on the site but about the number of houses that should be allowed. The developer wants to put the maximum possible number of houses there, but the LPA feels that it is in the public interest that no more houses should be permitted than they consider appropriate.

There may be some scope for negotiation here, and therefore for mediation. But the scope may be quite limited because the parties’ interests are so different. The developer’s interest is to get as many houses on the site as possible. He will only be interested in trading the number of houses for permission insofar as he thinks, with reference to the costs of an appeal, that “a bird in the hand is worth two in the bush”. The LPA, on the other hand, has an unwavering interest in seeing no more than the appropriate number of houses built on the site. If a planning inspector takes a different view on appeal, so be it, but it is not appropriate to allow (say) 28 houses by way of compromise if the authority considers that 28 is an unacceptably high number[25].

In these circumstances there is theoretically scope for a suitably expert neutral third party to come in and suggest a third way forward – e.g Have you considered getting 30 houses on the site by doing this? But if one assumes a competently advised applicant – and this is sometimes a big assumption – he ought to have identified the best and most attractive possible way of presenting his case for 30 houses in the first place.

This is a good introduction to my third example. Officers may identify all sorts of objections to a proposal for a house extension, which may have been designed by an architectural technician. In a mediation process, officers may well be able to redesign the proposal for the applicant. This is perhaps an extreme example, since it cannot really be the job of planning officers to redesign an application so as to make it acceptable. But it has long been accepted that design issues are potentially susceptible to mediation.

My final example relates to money. It always used to be the case that a developer should pay the direct infrastructure costs of his development, such as the cost of new roads and sewers. The indirect costs would be funded through taxation. Developers would sometimes offer a sweetener, such as a new local authority swimming pool, if planning permission for a large new office block were granted, but this would often be in the nature of a bribe. Times and attitudes have changed. The accepted approach now is to get as much money out of a development as it will reasonably bear. What is the quantum of that sum of money which can be inserted in a section 106 agreement tied to the permission? The resolution of this question is more obviously susceptible to mediation. Only last year I mediated a case where a small development had been held up for a year after a LPA had misapplied its own policies, and the developer had to await the outcome of the appeal process while interest charges went up and up and the development became less and less viable.

I want to spend some time considering how the planning process works now, because one cannot sensibly suggest a greater use of mediation in the planning field without also suggesting how it might happen within the existing framework. But before I do, I will try to identify the sort of cases in which mediation could be suitable: disputes about technical issues, disputes about design, disputes where third party interests loom large; disputes about the conditions for a planning permission; and disputes about the content of section 106 agreements. I will say a little about policy disputes at the end.

First of all, I believe that mediation is suitable in respect of all disputes involving a disagreement about some technical matter. I take as examples disputes about noise, or traffic, or drainage, or the effect on wild life, or housing numbers. All experience suggests that if you once get experts to talk, it is either possible to reach a complete agreement or at least to narrow the issues. They can and will do this without mediation, of course, but the mediation process may serve to concentrate people’s minds wonderfully.

Secondly, design. If a new building is acceptable in principle, it ought to be possible to sort out its design.[26] I touch later on the need for mediators to have planning expertise, but here I think that there is a particular need for the mediator to have design skills. The contrast here between an appeal and a mediation is that in an appeal the Inspector will be sitting, po-faced, in judgment on a scheme in circumstances where he may find it hard to restrain himself from saying But why don’t you do this? or Have you considered doing that? A mediator will be able to try out these ideas himself.

Thirdly, there is a particular kind of case where third party concerns loom particularly large: a bail hostel, or a hostel for the homeless, or a wine bar. If those concerns can be met, the LPA’s objection may melt away. There may be issues here about how to involve third parties in the process, but, if these can be overcome, this sort of case is very susceptible to resolution by mediation. The mediation process may enable objectors to gain a better understanding of what it is being proposed, and the applicant may understand their concerns better and respond to them by appropriate undertakings.

Fourthly, conditions. There are cases where the dispute is all about the conditions for a permission, which will have an important effect in defining what may be done under the permission. A few years ago mineral working in the Green Belt under some 50-year-old permissions gave rise to a longstanding and acrimonious dispute over breaches of planning control. A battle over the appropriateness of an interim injunction went up to the Court of Appeal. Because the site was close to a village, there were proceedings for statutory nuisance. There were also a number of enforcement notice appeals on the agenda of a pending three-week planning inquiry. Not, on the face of it, very tractable material for mediation. And yet the mediation succeeded at the end of a two-day session, and the three-week inquiry was called off. The Planning Committee approved the agreement reached in the mediation. It was lucky that the officers representing the LPA represented their members and their constituents so well that the deal stuck. But this example shows that in a case like this any worries that a mediated agreement may still peter out in a refusal should never lead to a decision not to try. Thousands of pounds, and a massive amount of precious management time, were saved by a successful mediation.

Fifthly, if a complex section 106 agreement is needed before development can go ahead, mediation may be valuable in settling its terms, as Circular 05/2005 suggested.

I have left policy disputes until the last. In an ideal world where a plan-led system has been put into place there should not be scope for too much argument – if it’s contrary to policy it shouldn’t be permitted. In the real world matters are rarely as clear cut as this. What, however, may be clear cut is the outcome. Development is either permitted in its entirety or it is not. The LPA may have a clear view about the undesirability of the outcome, even if – at least in theory – that outcome should be a result of a careful balancing of all the relevant considerations. Policy cases will be less susceptible to mediation. This does not mean, of course, that the numerous technical issues which are likely to arise in such cases are not susceptible to mediation.

What about the system into which any proposals for mediation must be incorporated? Before any application is submitted for substantial development is submitted, it is likely that the developer will have had discussions with the LPA, which will have influenced the terms in which the application is made. Through his understanding of policy and in the light of those discussions, the developer may submit the application with a fair degree of confidence as to the likelihood of success. If the development is not on such a scale as to indicate any need for pre-application discussions, the developer may still be confident about the outcome because of his belief in the quality of his proposals and his understanding of how those proposals relate to the LPA’s published policies.

Of course that confidence may be misplaced. Officers may after all recommend that the application be refused. Or members may refuse it on their own initiative. Until there is a refusal there is nothing to mediate. But once there is a refusal, the LPA is functus officio. It has done its job. It has made its decision. There is nothing left to talk about. There is also nothing to mediate about. The only way in which the applicant may move forward is to appeal.

If the developer appeals, a contested planning appeal is in being. I have explained how the nature of such a dispute is different to a lis between private parties. However as a matter of pure mechanics the position is much the same as that which obtains in private litigation. There is a dispute heading for determination – in the one case by a planning inspector or the Secretary of State and in the other by a judge – unless it can be resolved in the meantime. The possibility of resolving the dispute by mediation is fairly obvious.

It is here that I must refer to the position of third parties. Interested parties fall into different categories. They may be statutory bodies (like the Environment Agency or English Heritage), or interest groups (like the CPRE, the Woodland Trust, a local preservation group or even a body formed to oppose this particular development), or interested private individuals. All or any of these may have made representations to the effect that the application should be refused. If some deal is to be struck at this stage through mediation, their legitimate interests need to be acknowledged.

There is also the practical problem that any mediation cannot be with the members of the Planning Committee who refused permission. It must be with officers of the LPA as representing the collective interests of those members. But officers of themselves cannot “deliver” a mediated solution on behalf of the Committee: only the Committee can agree to the suggested compromise. But this is no different from many other mediations involving a public body.

How then might mediation work? In the pilot project ten years ago, once a case was identified as suitable for mediation, a mediator was provided free. In all these cases an appeal had been filed.   If the mediation failed, the appeal went ahead. The interests of third parties were protected because they would be entitled to make representations on a resubmission. In a number of cases third parties were actually involved in the mediation itself. This facilitated the reaching of an agreement, although it slowed down the process.

The pilot scheme showed that there are no insuperable problems in inserting a mediation stage into the process. It is also apparent that there is nothing that positively prevents mediation from happening at the moment. Why then doesn’t it happen?

The reason is that in stark contrast to civil litigation, the “culture” of the planning appeals system neither expects mediation nor does anything to encourage or facilitate it. Indeed there are target times for the determination of appeals. These are unlikely to encourage the Planning Inspectorate to stay the resolution of an appeal to allow a mediation to take place and await the outcome of a resubmitted planning application if the mediation succeeds. But even if the Inspectorate were willing to grant a stay, no LPA is going to take the initiative. As things stand now, it would have to pay for at least part of the costs of the mediation and for the staff time of those involved. Any initiative is more likely to come from a developer. But on the face of it a developer would need to have some special reason for incurring the costs of the mediation against an uncertain outcome when to have recourse to mediation will slow down the processing of his appeal. If there are third parties involved he is likely to be even less interested in mediation.

I see no reason to suppose that the cost of mediation as such would be a sticking point, any more than it is in a litigation context. But the fact that it is not cost-neutral reinforces the lack of enthusiasm with which mediation is generally viewed at present

And there is no tidy outcome to a public law mediation. Unless the LPA’s objection has disappeared by the end of the mediation, or the developer abandons his proposals, a satisfactory outcome must involve the submission of a new planning application. Such an outcome lacks finality for both sides: for the developer because his resubmitted application may not lead to a planning permission; and for the LPA because there may be a yet further application that seeks to build on what is granted under the resubmitted application. This lack of finality, too, is likely to affect the enthusiasm with which the parties are willing to consider mediation.

Looked at from the point of view of Government this is all very disappointing. Government has a narrow interest in trying to save money by reducing the number of planning appeals. It also has a wider interest, as its Pledge suggests, in seeking to encourage mediation as a preferable form of dispute resolution. What, then, might Government do to encourage mediation?

One obvious thing it might do is to provide a free planning mediation service, just as it now provides a free small claims mediation service in the courts, and, through ACAS, a free conciliation service in the employment field. Clearly if it did so, the Planning Inspectorate would be bound to facilitate mediation, and there are bound to be takers for a free service. If the number of planning appeals were reduced, such a service might pay for itself.

The trouble is that this involves spending money to save money. Large sums of money would be involved. In 2002 the costs of running a referral only service were put at £273,000.[27] This is a bit larger than to the cost of the National Mediation Helpline. The cost of funding mediation in any significant number of appeals would be enormous. This idea can be shelved. It is not practical politics in the present economic climate.

When the economist Kate Barker asked herself in 2006 how a national mediation service might be financed, she said:

“Given the cost savings to the public purse of mediation instead of appeals there is a case for this service to be provided free at the point of need, to reduce the perverse effect of having a free appeals service but a fee-based mediation service.”[28]

I have already quoted the Government’s insipid response, which said nothing about who might pay for the mediations it purported to encourage.[29]

One idea which emerged from the pilot study was that mediation might be provided by trained volunteers. This was said in the context of householder appeals, but these are now being taken out of the mainstream planning appeal system.[30] Outside that area, volunteers who lacked a planning background would not be of very much value, and there has been no sign of volunteers queuing up to offer their services since that suggestion was made.

On the face of it, if Government is not going to fund a mediation service and if it is not to be a volunteer service, the next option would be for mediation to be funded on a 50:50 basis by applicants and local authorities. This idea, too, like a free National Mediation Service, is not in the real world. There is no way that local authorities are going to fund mediation. Any necessary funding is therefore going to have to come from applicants.

It is not, however, intrinsically unrealistic to expect that they will be willing to pay. Mediation is relatively cheap, and if it once became the expectation, or part of “the culture”, that cases would go to mediation, developers might grumble, but the cost would not be viewed as being unbearable, against the background that mediation did, from time to time, “deliver the goods”, saving a huge amount of time and money.

Experience shows that exhortation alone is not going to do the trick. Exhortation alone will not bring about a new beginning in which parties look to mediate first rather than go straight off to an appeal.

In this context, one’s mind immediately goes to the idea, buttressed in civil litigation by the rules and the practice directions and the case-law, that an unreasonable failure to mediate could potentially sound in costs.[31] It would not be enough to say that an unreasonable failure to mediate is a matter to be taken into account in considering an award of costs. This is because costs in planning appeals do not follow the event. They depend on unreasonable behaviour. An unsuccessful appellant[32] would argue that the refusal of mediation was not unreasonable because, reasonably, he took the view that the appeal was worth pursuing. He has been proved wrong and perhaps mediation would have led to permission for something less, but the only way he could test this was by appealing.

What would really make a difference would be guidance to the effect that the Secretary of State will expect mediation to be used in all cases unless there are special circumstances indicating that it is not appropriate; and that failure to mediate will normally be considered to be unreasonable behaviour. This is the effect of what the Lord Chief Justice said in India in March. But in the absence of much practical experience of how mediation might work in the planning field, this might be too much for a Secretary of State to swallow just now, and I am not saying that she would be wrong.

Accordingly I think the requirement has to be one to consider mediation. But I am doubtful if such a requirement would bring about the culture change required to make mediation something which is always considered and very often undertaken, as occurs in civil litigation today.

What I think would make a difference in the long term is a change to the procedure. Rather than mediation taking place against the background of a refusal of planning permission, a local authority could in every case where it would otherwise refuse planning permission, be required to issue a statement to the effect that it is minded to refuse planning permission, but would not do so if within 14 days the applicant indicated that he wished there to be a mediation.   He could still appeal after the 14 days were up, but there would be at least some applicants who would take the mediation option.

In truth there might not be much difference between this arrangement and a mediation after a refusal, although if a mediation were successful, it would probably be easier to amend an unrefused application than to require a fresh planning application. In both cases there would need to be re-advertisement. The real difference is the psychological one, namely the expectation in such a regime that mediation might be pursued, rather than the appeal route taken. Planning officers, in particular, would benefit from the feeling that they do not have to be adversarial in a mediation context.

This may be the long term solution. It would, however, involve a significant change to existing procedures and would require statutory underpinning.. Ideally we would want to have more experience of mediation in the planning field before it was introduced. How could this be achieved?

There might be a financial incentive. A number of differing and contrasting local authorities could be identified. The Government could undertake to fund half the cost of a mediation in respect of all appeals from those authorities if mediation was selected by the appellant as an option. I believe this modest cost would be well worthwhile. I say this because I have a gut feeling that mediation has an important role to play in planning, but until there is actual experience of how it works (or does not work), I cannot be sure of this. A pilot scheme of this type will help to inform any change that is to be made to the system, as has already happened with mediation in the civil litigation field.

I am convinced that unless Government is willing to take some initiative of its own, in partnership with others – and the CMC would be very willing to broker the way forward – mediation is never going to take off in the planning field. If Government continues to confine itself to exhortations and pious incantations, no progress will be made. The dismal history of the last ten years will simply repeat itself.

I turn now to some particular issues.

The role of third parties

I have already flagged up the role of third parties as a relevant issue. I will say a little more about it now.

There is no necessity for third parties to be involved in mediation unless one of the reasons for the refusal was dictated by a third party: the Environment Agency, for example. If such a third party were involved, they might indeed be readily involved in a mediation. But there is no necessity for third parties to be involved. After a mediation between the applicant and the LPA has yielded a potential solution involving a re-application, it will be open to third parties, if they don’t like the new proposal, to object once again. It may also be said that to involve third parties in a mediation would elevate their status in the planning process from contributors to key players.

There should be flexibility in all this. In some cases, the applicant and the LPA may reach an agreement as to a way forward without the involvement of third parties at that stage. In other cases, they may recognise that the involvement of third parties in the mediation is likely to be useful because it renders it more likely that any agreement reached as to the way forward will lead ultimately to a consent being issued, or, at any rate, may smooth the path to a consent.

The involvement of members

There is an issue about the involvement of members. Officers may reach a mediated agreement with the applicant, but they cannot bind their members. Indeed, there is a class of case where mediation with officers will be futile because officers recommended approval but the members disagreed.

There is not much that one can do about the point that mediation will involve officers, not members. In some cases a member of the Committee might attend the mediation, but it is unrealistic to think that there could be such an attendance in all cases. It is likely to be inappropriate to expect a mediation to take place in a case where officers recommended approval.[33] And if members ultimately reject the solution that emerged from a mediation, that must be their prerogative and parties mediating have to recognise that this is the case, as with other mediations in the field of public law. The rejection of a mediated solution might constitute unreasonable behaviour, but it would have to be made clear that it is not the rejection of the mediated solution per se which is unreasonable, but the rejection of a solution which, on its own merits, ought to have been accepted.

Mediation and Major Infrastructure Projects

Provision is made for mediation in the rules governing planning inquiries into major infrastructure projects.[34] I quote:

If it appears to the Secretary of State that there is an absence of agreement between persons entitled to appear at the inquiry on a matter which is relevant to the inquiry; the inquiry would be conducted more efficiently and expeditiously if agreement could be reached in relation to that matter or any disagreement in relation to it could be defined and narrowed; and such a result is capable of being achieved by mediation, then he may at any time appoint a mediator for that purpose.[35]

It happens from time to time at major inquiries that time is taken up with cross-examination on matters that are quite small in the scale of things, but of considerable importance to the person presenting them. Often they may have a technical character making them either not suitable for cross-examination or giving rise to a situation where cross-examination is a disproportionate way of getting at the truth. It is a situation where the informed observer says,

Surely, if you put the two parties in a room, they ought to be able to work something out?

I say parties rather than experts because often it is not the experts who are standing in the way of settlement.

This feeling may be accompanied a longing that, once they are in the same room, the parties should have their heads banged together. In the brave new world of the Human Rights Act, a thousand years after trial by battle was dropped as a way of resolving civil disputes, there is no prospect of an Inspector being giving power to order this. But the point remains that in these circumstances it is no good asking or even ordering parties to go away and try to agree something: you have to provide a facilitator. I was counsel to the Sizewell Inquiry 20 years ago, and I know how much such a facility would have helped to speed the process.

It is now proposed that many, if not all, major infrastructure projects should be considered by a Planning Inquiry Commission. This will follow an inquisitorial procedure that must be completed within a very short timescale. The scope for mediation in such a process appears to be limited. This is a funny way to achieve public acceptance of a colossal development that will dominate people’s lives.

Mediation in the plan making process

In September 2004 the Government made a radical change to the planning process. It introduced procedures whereby Local Development Frameworks would replace local plans. In the guidance[36] which accompanied this change, the Government said this:

The Government supports the use of mediation, where appropriate, within the planning system, particularly where this might lend itself to better community involvement, and a greater understanding of the planning process. Mediation can play an important role in the facilitation of discussions between planning authorities, developers and local communities in drawing up local development documents, and bringing about more pro-active engagement with local communities. Mediation can also assist to maximise ‘buy in’ from local communities into the final local development document, and reduce the potential for conflict later on in the planning process.[37]

I think it is easy to see where the Government is “coming from”. It wants to involve local communities in the plan making process for two reasons: because that is something to be encouraged as good in itself, and because it means that the conclusions of the process will be more readily accepted.

The guidance is notably light, however, in describing how mediation is supposed to work in practice.

In the examination of local development frameworks one of the features of the new system is the “round table session”, chaired by an Inspector. Such a session does have some similarity to mediation. But the number of participants and the time pressures under which they must operate do rather reduce the extent to which they can be problem-solving exercises. And because the examination of a Development Plan Document by an Inspector is intended to be limited to answering the question whether the plan is sound or not –Yes or No – the scope for mediation at that stage must be limited. What would under the old system have been objections to specific policies are now representations on the totality, although the objections may focus on specific aspects of the plan. There is not a lis – or an issue in the nature of a lis – susceptible to mediation.

Despite this, I am sure that it is in the plan-making process that the most fruitful application of mediation in the planning field could lie. What it needs is specific, well-targeted encouragement.

Development is about change. Change is often necessary but intrinsically undesirable. One thinks of the provision of new housing. Ideally such development would always be entirely beneficial. People need homes. New housing may assist the retention of valuable community facilities in a village or redevelop long standing eyesores with high quality buildings. But life is seldom like this. Development often involves difficult and seemingly unpalatable choices. If, in the plan-making process, local people can engage in intelligent debate with themselves and with other stakeholders about such choices and, having done so, reach a decision which achieves broad consensus, the planning system would be evidently facilitating the best outcomes. This – like the housing development to which no-one objects – may be an ideal, but it is an ideal worth striving for. In this context, the US experience shows that mediation may have an important role to play.[38]

The starting point is the identification of choices. In the first instance this is the job of the LPA, but LPAs should be astute to include alternatives proposed by others, including local people and developers.[39] Once this point has been reached it is possible to identify policy proposals for inclusion in the plan making process.[40]

The involvement of third parties introduces complications. Obviously, in some cases the heat and burden of the day will be borne by organised community groups, but it would be inappropriate to shut out anyone who wishes to participate. How this is to managed in practice could be first of all a matter for the LPA and subsequently for the mediator himself in a meeting or a series of meetings preliminary to the mediation.

It may all sound complicated. It would certainly require patience to set it all up. But I think it would work. What is needed is some reasonably high profile situation where it is applied and is seen to work. Once the path has been trodden successfully, I am sure that there will be others to follow.

I will give an example from my own recent experience. Last year the Mayor of Newham invited me to chair a well-balanced Commission to advise him whether the construction of a large casino in Newham would be a good idea. Most of us knew very little about casinos. We considered the issues for six months and took masses of evidence. We then submitted a unanimous report setting out the pros and cons very clearly and advising him that if it were located in an appropriate place, a large casino would be likely to bring significant regeneration benefits to the borough without significant risk of detriment. But we also advised him that local opinion was very strongly opposed to the idea.[41]

Five months later he asked me to return to Newham to chair a consultative forum. A random, but representative, selection of local residents were to meet on a Saturday and hear the evidence and make up their own minds on the proposal. They heard from three site owners, from their local council’s regeneration director, from the borough police commander, and from a senior representative of an agency concerned with mitigating the effects of gambling addiction. Before they arrived, at least 60% of them were opposed to the idea. At the end of the day they were asked whether they believed that a casino should be permitted in the borough. 68 of them voted “yes” and 19 voted “no”. That was not a mediation, but it was a good example of how community planning can be enhanced by the involvement of a third party neutral whom everyone trusts.

Mediation in compulsory purchase

In a recent judgment[42] Lord Nicholls said this:

….[C]ompulsory purchase of property is an essential tool in modern democratic society. It facilitates planned and orderly development. Hand in hand with the power to acquire land without the owner’s consent is an obligation to pay full and fair compensation…Unhappily the law in this country on this important subject is fraught with complexity and obscurity…

The Law Commission has reported on this subject and made suggestions for change,[43] but this Government does not intend to take any action at all on the Commission’s proposals. Although it accepts that it would like to have a single simple compulsory purchase code expressed in modern English, it says that there is no prospect of finding the necessary legislative time. The minister added:

The Government considers it more important to maintain a stable legislative framework providing certainty both for acquiring authorities and for those whose properties need to be acquired.[44]

In other words, the Government has opted for the certainty of uncertainty. This may not be as absurd as it sounds. With both claimant and compensating authority knowing that the law is fraught with complexity and obscurity both have an incentive to reach an agreement about the quantum of compensation. Lots of claims are settled by negotiation because the law is in such a mess.

There is scope for mediation here, and the Lands Tribunal has power to stay the progress of an appeal to allow ADR to happen. I understand, however, that mediation is little used in practice. I talked about this to the Registrar of the Lands Tribunal when I met her at a mediation course last year. The adversarial culture prevails. But disputes about compensation before the Lands Tribunal mirror quite closely litigation in the Courts. There are no special factors in that process which call for any comment from me. There is no reason why there should not also be an 80% success rate here.

I believe, however, that the use of mediation at an earlier stage of the compulsory purchase process is something that needs to be considered further. In a 2004 circular[45] the Government urged acquiring authorities, in the interests of speed and fostering good will, to consider offering people with concerns about a CPO full access to alternative dispute techniques (ADR). These, it said, should involve a suitably qualified independent third party and should be available wherever appropriate throughout the whole of the compulsory purchase process, from the planning and preparation stage to agreeing the compensation payable for the acquired properties. It suggested that mediation might help to clarify concerns relating to the principle of compulsorily acquiring the land, while other techniques such as early neutral evaluation might help to relieve worries at an early stage about the potential level of compensation eventually payable if the order were to be confirmed. It said that the use of ADR can save time and money for both parties, while its relative speed and informality may also help to reduce the stress which the process inevitably places on those whose properties are affected.

On this occasion, remarkably, the writer of the guidance remembered the Government’s ADR pledge. He said that the advice echoed the spirit of the Government’s own pledge to settle legal disputes to which it is a party by means of mediation or arbitration, wherever appropriate, if the other party agrees.

I have not heard of any cases where, in fact, mediation has been used to clarify “concerns relating to the principle of compulsorily acquiring land”. Once again one has to sound a note of caution. Either it is necessary that land should be acquired in the public interest or it is not. But there will often be cases where the person whose land is to be acquired will not have any objection to the project in principle; he may, indeed, positively support it. He may nonetheless assert very vigorously that there ought to be some other way of bringing the project about.

The trouble here is that if we imagine that the objecting landowner is a wealthy organisation, he will instruct his own experts, who will demonstrate (or otherwise) the feasibility of an alternative scheme. With experts on both sides discussing the issues in good faith, there will be only limited scope for mediation.

If we imagine, alternatively, the landowner being someone of limited means who cannot afford to instruct experts, mediation from a position of ignorance is unlikely to help. If we vary the case to posit a situation where many parties are involved on either side of the argument (for example, a debate over competing routes for a tramline), it becomes even more difficult to see how ADR would work. And it is possible to identify a further concern. The sort of frank exchanges that take place in a mediation could well prove useful to the acquiring authority subsequently if the mediation fails, and information obtained in the course of a mediation cannot subsequently be put out of mind, even if this is what theory may require.

This suggests that a landowner should only mediate about carefully defined issues. However, if he can identify such issues, in the light of the Circular guidance he will be able to suggest that they should be the subject of mediation at the acquiring authority’s cost. This would seem to be a beneficial application of mediation, which needs to be more widely considered.

One example might be whether noise attenuation measures should be put in place during the construction of the project, or even whether temporary rehousing is required. Another might be the need to acquire further land because it would be severely affected by the construction or operation of the works.

Facilitated consultation

Planning is often about options. Should airport capacity be expanded in the south east or in the north? Or not all? Should the route for the new by-pass be to the north or the south of the town? Should there be a car park in the village or is the cure for the car parking problem worse than the disease? Or is there another way forward? Some of these issues may partake more of policy decisions appropriately taken through the democratic process, but a small but important local decision may have no large policy input at all.

Communities can be torn apart by issues of this kind. Mediation or quasi-mediation surely has a role here. It may be that a local planning officer knows (or thinks he knows) the right answer but he may be suspect in the community, whether justifiably or not. If someone with some understanding of planning comes in from outside he may very well be able to move the matter forward. Local authorities should be astute to involve mediators in this kind of situation.

Planning hearings

Most planning appeals are now not heard at a public inquiry but at a hearing. The Inspector and the parties sit round a table and the Inspector adopts an inquisitorial approach. There is no restriction on the procedure the Inspector may adopt, provided that he is fair.

There is no inhibition on legal advisers taking part, provided they do not seek to cross-examine. If it is a case that cries out for cross-examination, the Inspector can turn it back into an inquiry. It is too much to say that the “culture” is one of problem-solving, but the adversarial element of the inquiry process has been removed, and because of his role the Inspector would feel obliged to identify conditions that might address deficiencies in the development as presented. It is not mediation, but the process partakes of features of mediation, the Inspector being, in part, a third party facilitator.

The planning inquiry

Against this background I turn finally to consider the planning inquiry. We have seen how there may be scope for mediation at major inquiries. At the smaller inquiry there will often not be that opportunity, but it can arise. At one ten-week housing inquiry the provision of affordable housing was a major issue. The Inspector offered to “mediate” on this issue in the second week of the inquiry, and with the parties’ agreement he did so. He indicated his conclusions after a day of submissions. This facilitated an agreement where there had previously been an impasse. This may not be “true” mediation but it is very much within its spirit. There is surely scope for an Inspector to be less of a judge and more of a facilitator when the opportunity offers.

There have always been those who are dubious about the value of cross-examination at planning inquiries. They are therefore dubious about the value of the planning inquiry process. This is a quite different point to having justifiable concerns about the cost and the length of time it takes to produce a decision through the traditional process. I do not share these doubts. Whatever the subject matter, skilful cross-examination will show up the flaws and weaknesses of the evidence presented in support of a case. At Sizewell for nearly two years I played an exhausting and exhaustive inquisitorial role as Counsel to the Inquiry. But the Inspector could not possibly have got anywhere near to eliciting the information the Government needed – and deserved to receive – about this controversial project if adversarial cross-examination had not played a significant role in the process.

My Sizewell experience tells me that there is scope for Inspectors to be much more “pro-active” in their management of inquiries. It is only quite recently that they have started identifying issues at the outset. Statements of common ground, however, have not achieved their purpose because they are usually much too general. Ideally, there would be a pre-inquiry meeting on each occasion. This is unrealistic, but an interesting pilot project might provide for the Inspector to read the papers in advance and to issue preliminary observations on what he or she has read.

Conclusion

My topic is mediation in planning and not the reform of the planning system. But I believe that the failure to engage with the role that mediation can play in the process, despite constant exhortations by Government since 1996, is symptomatic of a wider failure to engage with the deeper question of how the whole planning process could be improved. I hope this lecture may open the way to a much wider debate, involving people who know far more about the planning system than I do. If it does, Peter Boydell might feel, if he were still with us, that this first lecture in his memory has not been entirely in vain.

[1] Sir Henry Brooke was a Lord Justice of Appeal from 1996 to 2006, and Vice-President of the Court of Appeal (Civil Division) between 2003 and 2006. He is a former Chairman of the Law Commission. Between 1983 and 1985 he acted as Counsel to the Sizewell B Nuclear Power Station Inquiry. In May 2006 he delivered the David Hall Memorial Lecture for the Environmental Law Foundation under the title Environmental Justice: The Cost Barrier (Journal of Environmental Law (2006) Vol 18 No 3, p 341. He is now an accredited mediator, and Chairman of the Civil Mediation Council.

[2] Lord Woolf, Access to Justice, Final Report (July 2006), p 326. See the fuller treatment in his Interim Report (June 2005) Chapter 18, pp 136-147.

[3] See Mediation: A Practical Guide, by Allan J Stitt (2004), pp 29-31 for a longer explanation.

[4] See Ken Jones, Alas Poor Heslop: the Story of the Last Fatal Duel in Wales (2007). Thomas Heslop was killed by solicitor John Beynon in Ceredigion in 1814 in a quarrel following a partridge shoot. Surgeon John Williams (1760-1825), who attended the duel, was the great-grandfather of Sir Henry’s grandmother Ethel Frances Mathews.

[5] Lord Phillips of Worth Matravers, Alternative Dispute Resolution: An English Viewpoint, a speech in India on 29 March

[6] Sir Anthony Clarke MR, APIL Annual Conference, Keynote Speech, 11 April 2008, paras 17-18.

[7] Sir Anthony Clarke MR in an address to the Civil Mediation Council’s Annual Conference at Birmingham, 8 May 2008.

[8] Chris Shepley, Mediation in the Planning System, Planning Inspectorate Journal (197) p 9, an article based on a paper he gave at a conference on 15 October 1996.

[9] Michael Stubbs, The new panacea? An evaluation of mediation as an effective method of dispute resolution in planning appeals, International Planning Studies, Vol 2 No 3, October 1997, pp 347-365. See more recently the Land and Environment Court of New South Wales: Moving Towards a Multi-Door Courthouse, a speech by Hon Justice Brian J Preston, 15 November 2007.

[10] John Harrison, Environmental Mediation: The Ethical and Constitutional Dimension, Journal of Environmental Law, 19 January 1997.

[11] Mediation in the Planning System (ODPM, May 2000). In this pilot study 10,400 leaflets were distributed with appeal documentation sent out by the Inspectorate. Various other things were done to encourage the use of mediation (which was provided free). Ultimately there were 243 inquiries but of these only 52 (for a variety of reasons) progressed to mediation.

[12] Further Research into Mediation in the Planning System (ODPM, December 2002).

[13] DOE Consultation Paper, January 1997.

[14] DETR Statement, January 1998.

[15] Modernising Local Government: Improving Local Services through Best Value (DETR) 1998.

[16] DETR Consultation Paper, 1999.

[17] PPS 12, para 4.4.

[18] Circular 05/2005, paras B37-B40.

[19] Kate Barker, Review of Land Use Planning: Final Report, December 2006, p 138, para 6.13.

[20] See Further Research into Mediation in the Planning System (ODPM, December 2002), Chapter 9.

[21] Planning for a Sustainable Future, a Government White Paper (May 2007), Annex B, p 219.

[22] In March 2001 the Lord Chancellor committed the Government to seek to use ADR techniques (including mediation) in all suitable cases across all areas of Government activity.

[23] Ministry of Justice, The Annual Pledge Report 2006-7, Monitoring the Effectiveness of the Government’s Commitment to Using Alternative Dispute Resolution.

[24] These figures are all drawn from the Consultation Paper Improving the Appeal Process in the Planning System, DCLG, May 2007.

[25] Note that having got a consent for 28 houses, a developer could then pursue a further application for 30. There would not be the basis on the face of it for a local planning authority to seek to make a compromise of 28 enforceable by tying the number into a section 106 agreement.

[26] In Mediation in the Planning System (ODPM, 2000) at para 4.3.5, it was reported that in the pilot scheme a “householder” case with a design focus was the most likely case to achieve an outcome leading to a revised application being submitted and planning permission obtained.

[27] See Further Research into Mediation in the Planning System (ODPM, December 2002), Annex G.

[28] See paragraph 6.16 at p.139

[29] See text and n 20 above.

[30] See clause 150 of the Planning Bill 2007, now before Parliament..

[31] See Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002.

[32] Arguments in respect of costs in planning appeals are conducted before an Inspector before the outcome of the appeal is known i.e on an hypothetical basis. The argument accordingly by an appellant will be on the basis of If I am unsuccessful …

[33] In Councillor Involvement in Planning Decisions, the Final Report (DCLG, January 2007) it was recommended that consideration should be given to the deferral of decisions where the majority of the committee are minded to make a decision contrary to officer recommendation.

[34] That is, in respect of applications for development that the Secretary of State thinks are of national or regional importance.

[35] See rule 8 of the Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2005 (SI 2005 No 2115).

[36] PPS 12.

[37] Emphasis added.

[38] The Environmental Protection Agency and other agencies in the United States routinely apply collaborative decision-making processes in their work.  See, too, the work of the Justice Center in Atlanta Georgia: www.justicecenter.org

[39] In Capetown mediation was successfully used in the development of the city’s metropolitan Spatial development Framework between 1991 and 1996.

[40] The Tunbridge Wells District Council invited Planning Mediation Ltd in 2006 to conduct a series of meetings with local stakeholders in a village in Kent to determine which of two sites should be allocated to the location of the new Church of England school.

[41] See the Report of the Advisory Commission on the Newham Casino for the London Borough of Newham, September 2007.

[42] Waters v Welsh Development Agency [2004] UKHL 19 at [1] – [2]; [2004] 1 WLR 1304. In a concurring speech Lord Brown of Eaton-under-Heywood said at [164] that there were few stronger candidates on the statute-book for urgent reform, or simple repeal, than section 6 and Schedule 1 of the Land Compensation Act 1961.

[43] See Towards a Compulsory Purchase Code: (1) Compensation [2003] Law Com No 286; and Towards a Compulsory Purchase Code: (23 Procedure [2004 Law Com No 291.

[44] See written statement by Yvette Cooper MP, Minister of State for Housing and Planning, 15 December 2005.

[45] ODPM Circular 06/04, para 26.