Lan Land-use se a assembl bly, plann nning, ng, c compens nsation n an and A ADR: Les Lessons l lear earned an and n nex ext s t steps Rem emote E e Evidence Ses e Sessio ion Monday, 4 th May 2020
Lan Land-use se a assembl bly, plann nning & ng & compensa nsation n fro rom the p pers rspectives of t the D Dispute R Resolver r and r nd retained Counsel JOHN P PUGH-SMITH TH F FSA F A FCIAr Arb Barrister, Arbitrator and CEDR Accredited Mediator 39 Essex Chambers, London & Manchester www.39essex.com john.pugh-smith@39essex.com
NP NPF/PINS M S Mediat ation on i in Planning Re Repor port – pub published ed June 2 2010 Avai ailab able t e to d download f d free f ee from: www.n .natp tplanforum.o .org.uk .uk and nd www.planni nning ng-inspec ectorat ate. e.gov.uk
Mediation i in P Planning: A A Shor hort G Gui uide Mediatio ation G Guide p e prep epar ared ed, e endorsed ed b by ( (Sir ir) Bob Neill MP MP, f , former Minis nister ter f for P Plann annin ing: L Launched ed a at t the e RTPI TPI Plann anning ing C Conv nven entio ion n June 2 ne 2011 and s still avail ailab able o e on the e NPF PF w web-site ite: : www.natplanforum.org.uk
Some o overar archi hing p principles ples What is “mediation” in this context? • A dialogue between parties to a dispute or difference conducted on a confidential and without prejudice basis, assisted by a neutral person (“the Mediator”); or, simply • An assisted negotiation BUT UT • There does not have to be a formal “dispute” What at s servic ices es m might a t a “med ediator” provid ide? e? • To give the parties the best chance of reaching a solution to their dispute or difference that is quicker, less expensive and better suited to the circumstances of the dispute or difference than the alternatives • Facilitative - helping the parties to formulate their own propositions • Evaluative - helping the parties when asked to use his/her expertise to offer neutral views to the parties
Some m more pr e principles es: What at role d e does es t the “ e “med ediato ator” fulfil il? • Manages process of negotiation • Sets tone • Encourages option generation • Helps parties think the unthinkable – reality testing! • Creates and preserves ‘traction’ • Helps to close the gap bu but negotiations remain confidential and non- binding till settlement agreement signed. N.B. B. If successful, mediation delivers greatest benefits the earlier it is used i.e. lower costs, greater goodwill, less entrenchment and less diversion of management time BUT UT • A failed mediation rarely leads to a second attempt
ADR M Mec echan anis isms curren ently b bei eing ng u used ed w within in “ the e Plannin anning Syste tem” and and ad addin ing r real eal v val alue Based upon my experience of using mediation and facilitation techniques being used to help resolve specific issues both as “the neutral” and as counsel : La Land assembly - As co-mediator in a multi-party series of disputes between landowners (with LPA acting as broker) over major residential development coming forward through emerging Local Plan allocations Design n & layo yout ut – Part of Design Council’s Built Environment Expert team S.106 106s - Negotiation of obligations esp. financial contributions and terms as DCLG “broker” and, on an interpretative basis, as RICS President's Panel appointed arbitrator and independent expert Enforcement - A voiding formal measures (demolition) by voluntary En physical changes to building and to ensure practical compliance with Notice requirements as mediator, s.174 appeal counsel and facilitator
More Exper perien ence • Judicial ial R Review iew : - Pre-Action on Protoc ocol ol stages: limiting sustained objections, agreeing settlement terms (e.g. fresh consultation, design solution) as retained counsel - After er Commen encem emen ent: t: Compromise & Settlement both in the roles of parties’ appointed independent Mediator (after Court stay) and as Counsel • High ghways ys : : Scope of works and footpath diversion routes as retained Counsel ion : Resolution of “preliminary issue(s)” (Revocations • Compens ensat atio of PP and PDR due to Habitats Regs; Minerals compensation) both as parties’ appointed mediator and as retained counsel
So Some C e Chall hallenges • Confid nfiden ential ialit ity When does the process have to be confidential? Willingness of parties to achieve a positive outcome Structured agreement allowing later public announcement or ratification and reason(s) underpinning outcome • Lim imits ts to au auth thority ty Not fettering the discretion of a public body as still subject to member endorsement; Extent of delegated powers and/or member mandate and involvement made clear, preferably at outset of mediation process • The P e Public ic i int nter eres est Not fettered and sufficient safeguards (as above)
Other Pro r Professional Ex Expe periences Membership Surveys of Compulsory Purchase Association and Planning and Environment Bar Association (Jan/Feb 2020) Particip ipan ants ts: 136 of which 39 were also PEBA Members (20% response rate) seeking use and experiences from those acting in one or more of the following capacities: • Mediator • Independent Expert/Adjudicator/Evaluator • Arbitrator • Neutral ‘chair’ • Facilitator (i.e. intermediary) • Advocate • Expert Witness 6 questions of which 4 most directly relevant to this session
Membe bership S Surveys of CPA a and P nd PEBA BA Head eadlin line R Res esults lts Q1 Q1 : Within the last five years, in relation to compensation, land-use, and/or community issues (e.g. party walls, rights to light, boundary disputes) have you acted in the following capacities (more than one can be answered) Output uts: Areas eas: (1) CPO etc tc. ( (2) Plannin ing etc tc. (3) Neig ighbour dis ispute tes • Mediator : (1) 8 8.09% 9% (2) 9. 9.56 56% ( (3) 3) 4 4.41% 1% • Independent Expert etc : (1) 11. 11.76% ( (2) 2) 8 8.09% 9% (3) 2.21% • Arbitrator: (1) 2.21% (2) 3.68% (3) 0.74% • Neutral: (1) --- (2) 2.94% (3) 0.74% • Facilitator: (1) 5. 5.15 15% (2) 5. 5.15 15% (3) 2.21% • Advocate: (1) 4 43.38% 38% ( (2) 41.18 18% ( (3)12. 2.50% 50% • Expert Witness: (1) 39. 39.71% 1% (2) 10.29% 29% ( (3) 3 3.68% 68%
Other Pro r Professional Ex Expe periences Q2: Where dispute resolutions were proposed, were they (a) cautiously accepted, (b) readily accepted or (c) rejected? Areas eas: (1) CPO PO etc. c. (2) Plan anning etc. c. (3) Nei eighbour di disputes es • Medi ediator: (1)( )(a)16%; (1 (1)(b)14%; ; (1)(c (c)7 )7% (2)( )(a)7%; ( ; (2)(b)6%; (2)(c (c)3 )3% (3)(a (a)6 )6%;(b (b)6 )6%; ( (c)0% • Indep depen enden ent E Exper ert et etc : (1)( )(a)12%; (1 (1)(b)11%; (1)(c (c)7 )7%; ( (2)(a (a)2 )2%; (2)(b (b)7 )7%; (2)(c (c)1 )1% (3)(a (a)& )&(b (b)0 )0%; ( (3)(c (c)1 )1% • Arbi rbitrator: (1)( )(a)1%; ( (1)(b (b)3%; ; (1)(c (c)6 )6%; (2)(a (a)2 )2%; (2)(b (b)7 )7%; (2)(c (c)0 )0% (3)(a (a)& )&(b (b)& )&(c (c) ) 0% • Neutral al: (1)( )(a)2%; ( (1)(b (b)1%; ( ; (1)( )(c)4%; ; (2 (2)(a)3%; ( (2)(b (b)3%; ( ; (2)( )(c)1% (3 (3)(a)2 )2%; ( ; (3)(b)& ( (c)0% F acili litator or: • (1)(a (a)1 )16%;(1 (1)(b )(b)1 )14%;(1)(c (c)7 )7%; (2)(a (a)7%;(2 (2)(b )(b)6 )6%;(2 (2)(c )(c)3 )3%; (3)(a (a)6 )6%; ( (3)(b (b)6 )6%; • Adv dvoca cate: (1)( )(a)9%; ( (1)(b (b)15%; ( ; (1)( )(c)4%; (2 ; (2)(a)15%; ( ; (2)( )(b)7%; (2)( )(c)6%; (3)(a)7%; (b (b)7%; (c) 2 2% • Exper ert Wi Witnes ess: (1)(a (a)8 )8%; ( (1)(b)2 )20%;(1 (1)(c )(c)9 )9%; (2)(a )(a)1 )1%;(2 (2)(b )(b)4 )4%;(2 (2)(c (c)2 )2%; (3)(a (a)1 )1%; (b)1%; (c)1%
Membe bership S Surveys of CPA a and P nd PEBA BA Head eadlin line R Res esults lts Q3 Q3 : Where used , how did the parties perceive the process? Out utput uts: (1) Posit itive (2) Negativ ive (3) Opi pinio ion va varied betw tween pa parti ties • It t failed : (1) 1) 5.26 26% ( (2) 2) 13.16% (3) 27. 27.63 63% • Su Success ssfu ful - relieved: ( (1) 1) 17. 17.11% 1% ( (2) 2) 5.26% 26% ( (3) 3) 11. 11.84 84% • Su Success ssfu ful - satisfied: ( (1) 1) 32 32.89 89% (2) 1. 1.32 32% ( (3) 3) 23. 23.68% • Su Success ssfu ful - impressed (1) 11.84% (2) 3 3.59% (3) 6 6.58%
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