British Land-Use Mediation Scheme Threatens To ‘Make Things Worse’

This article originally appeared in the January 1998
issue of Consensus, a newspaper published jointly by
the Consensus Building Institute and the MIT-Harvard
Public Disputes Program.

London, England – The
British government has proposed a national
mediation scheme to ease the burden of the 15,000
cases each year that pass through the country’s
land-use planning appeal system. In a
consultation document, the national Department of
the Environment has asked for comments on
proposals that are partly based on U.S. and
Australian models of planning and environmental
mediation.

The consultation paper suggests that the
scheme should be:

• Voluntary
• Informal
• Independent

The proposal envisages that mediation would be
voluntary, and without prejudice to the rights of
the parties should they pursue their case to a
formal adjudicatory appeal.

The paper accepts that the mediation process
should be informal and agreed-to between the
parties themselves. It therefore leans against
any statutorily designed procedure, and it seems
the scheme could therefore be introduced without
new legislation.

Free to select

In early discussions on the proposed scheme
officials toyed with the idea of using planning
inspectors — the central government appointed
planning experts who adjudicate individual
planning appeals — as the mediators. Although
such an inspector would not, of course, have
adjudicated a case she had mediated, the idea of
planning inspectors acting as mediators has now
been ruled out in the consultation paper. Instead
the paper suggests the creation of a panel of
independent mediators, with the parties to a
dispute being free to select the mediator of
their choice.

Intriguingly, however, the paper suggests that
the panel of mediators could be organised by the
planning inspectorate — the central government
executive agency that organises local planning
appeals and which employs planning inspectors.
All formal planning appeals are made to the
Inspectorate and the agency is therefore ideally
placed to identify cases that could be suitable
for mediation. This raises the possibility of the
inspectorate acting in some respects like state
offices of dispute resolution in the U.S.,
promoting the concept of mediation, selecting
suitable cases, prompting parties to consider the
process and co-ordinating mediation services.

So much for cheery news. The bad news is that
third parties (such as abutters and other
stakeholders) already get a raw deal in the
British planning system and the consultation
paper threatens to make things worse. Currently
neighbours must be informed of development
proposals but, like developers, generally have no
right to speak at planning committee meetings
where decisions are taken. Unlike developers,
however, objectors rarely have the resources or
muscle to negotiate informally with planning
officials ahead of the committee meetings. At
formal planning appeals, abutters and other
interested people strictly have no right to be
heard although in practice they are usually
allowed to speak, usually at the end of the
proceedings. Consequently their objections,
although procedurally treated fairly, are often
not well made or are not properly developed or
explored.

The consultation paper risks compounding this
by stating that abutters and other stakeholders
would not normally be involved directly in
mediation. This strikes at the very heart of the
ideal of public policy mediation and completely
threatens to undermine the legitimacy of the
process.

If the proposals are implemented as they stand
environmental interests, amenity groups and local
citizens are likely to see mediation as nothing
more than an elaborate mechanism for cooking up
shady backroom deals that leave them out in the
cold until the real horse-trading is over. The
great promise of mediation –wiser and more
enduring environmental decision-making achieved
through a rich process of genuine negotiation —
could be thrown away if the government fails to
recognise the importance of including all
stakeholders in the process.

As matters stand, however, the government
believes that third-party interests can be met by
taking a fresh decision on a second application
for planning permission (modified as a result of
the mediation) and allowing objectors to have
their say only at the stage of the formal
decision-making process — just as they can at
present.

Unrealistic–or the future?

The government paper also belies a touching
faith in the readiness of disputing parties to
embrace mediation, a process that is almost
unknown and untried in British planning and
environmental disputes. It simply states that the
costs of mediation shall be shared by the parties
and assumes that everyone involved will have the
funds and be ready to risk them on an unfamiliar
and unproven process. Critics have suggested that
this is unrealistic and that at least in the
early years of the scheme some form of subsidy
will be necessary to kick-start the uptake of
mediation and to generate a body of success
stories that will stimulate interest and
enthusiasm for the process. In effect, this was
how the U.S. environmental mediation movement
grew and developed over the past 20 years,
building on a bedrock of financial support from
foundations, Superfund public participation
grants and state offices of dispute resolution.

Only time will tell whether Britain will learn
from the U.S. experience.

                       

John Harrison

John Harrison is a public sector environmental lawyer working in London, England. MORE >