Mediation in planning: a bright new hope? William Orbinson QC LARTPI For EPLANI June 2012

1. Mediation in planning: a bright new hope? William Orbinson QC LARTPI For EPLANI June 2012

2. Mediation: what has it ever done for us?

3. Mediation: what is it? “a process involving an independent third party, whose role is to help parties to identify the real issues between them, their concerns and needs, the options for resolving matters and, where possible, a solution which is acceptable to all concerned” - Guide to Mediation in Planning, Scottish Executive, March 2009

4. Mediation: what is it? Not a bar to litigation Not arbitration: the mediator makes no determination Not about deciding who is right and who is wrong Voluntary, facilitated discussion led by a neutral third party Exploration of the situation - active listening, open questioning Reframing of the issues to allow constructive progress Active search for a mutually acceptable solution, or at least narrowing the issues in dispute Thinking outside the box

5. Mediation: the advantages Confidentiality Without prejudice – “nothing is agreed until everything is agreed” Speed Takes out the heat, allows cool heads to prevail Parties can choose mediator Flexibility, availability of wide-ranging outcomes Relatively cheap Protects - sometimes enhances - existing relationships

6. Mediation: when is it unlikely to work? • “You cannot shake hands with a clenched fist” • Indira Ghandi/Golda Meir • But • “You can take a horse to water but whether it drinks is • another thing entirely. But a horse, even a very obstinate • horse, is more likely to drink if taken to water. We should • be doing more to encourage, and perhaps direct the horse • to go to the trough. The more horses approach the • trough the more will drink from it” • - Sir Anthony Clarke, Master of the Rolls

7. Mediation: when is it likely to work?

8. Mediation: when is it likely to work?

9. Mediation: some examples Retail – retail development of site outside district centre boundary and identified for mixed use Enforcement – unauthorised storage of non-agricultural items and scrap Education – siting of a primary school Residential – controversial development on a brownfield site

10. Mediation in planning: high level encouragement Lord Chancellor’s Pledge, April 2002 – to use mediation to resolve disputes with government departments Reiterated by NI Justice Minister, David Ford in respect of all NI departments, including the PAC sponsor department “Mediation ... is recommended to resolve differences between local communities and developers in planning cases” – Lord Chief Justice Declan Morgan, The Way Ahead, 21 October 2010

11. Mediation in planning: what are you doing here? Order 1 Rule 1A & Order 62 Rule 10, Rules of the Court of Judicature (NI) 1980 provide for mediation in all forms of High Court proceedings, including Judicial Review Halsey v Milton Keynes NHS Trust (2004) 1 WLR 3002 Rolf v De Guerin (2011) EWCA Civ 78 – a warning from the Court of Appeal: “A party who refuses even to consider whether a case is suitable for ADR is always at risk of an adverse finding at the costs stage of the litigation, and particularly so where the court has made an order requiring the parties to consider ADR” Even where the party wins!

12. Mediation in planning: what are you doing here? Cowl v Plymouth City Council [2011] EWCA Civ 1935 Court of Appeal emphasised the “paramount importance” of avoiding litigation by using ADR in public law disputes “Courts should scrutinise extremely carefully applications for judicial review ... The courts should then make appropriate use of their ample powers to ensure that the parties try to resolve the dispute with the minimum involvement of the courts”

13. Mediation in planning: conclusion • A useful tool in planning disputes • Strong Ministerial and Judicial impetus • Cost-effective to use, risky to reject