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PLANNING MEDIATIONS

PETER D KYTE ASSOCIATES is able to support Councils and Applicants with its PLANNING MEDIATION SERVICE. The service is aimed at schemes that are having difficulties in the negotiations.

Please follow the links below for more information:

What’s gone wrong?

Planning Mediation – An answer

The wider Community in the Mediation process

Government interest

At what stage do we consider mediation?

Examples of Mediated Schemes

WHAT'S GONE WRONG?

A good planning applications process should be one that is efficient in time terms AND produces good quality decisions (and thus good quality buildings).

Our communities, if they are to be environmentally sustainable, depend on the parties involved in the development process to produce properly located, energy conscious, imaginative and visually rich buildings, with high quality spaces around them. A visually appealing, usable, enjoyable and sustainable urban form depends on good communication between developers, consultants, officers of the council, planning committees and local people affected by a project. 

This good communication – which occurs at what we call the NEGOTIATIONS INTERFACE – should be backed by a robust policy and development standards framework. Good communication though, depends not just on policy content but on the right negotiation dynamic to achieve the best possible solution for a development site, and for the local community.

But the NEGOTIATIONS INTERFACE is often one that is fraught with complexities and problems.

Developers do not always recognise that the best scheme is one that achieves the optimum balance between planning and value aspects. Initial briefs to the Architects sometimes overstretch the capacity of the site, thus creating problems further into the planning process. In addition, there is sometimes not enough emphasis in the brief on imaginative design solutions, which can lead the Architect into pursuing a more straightforward design route.

Planning officers can sometimes interpret and apply policies rigidly, whilst planning consultants acting for Applicants take a more flexible (and possibly opposite) view of the very same policy
.

In more complex policy situations where the Applicant’s presentation has failed to address the pertinent issues, the interpretation of planning policy is left to officers of the Council. Often there are no problems in this area but sometimes there is an inability of the case officer and Applicant to come to agreement on policies that can be subjective and thus perceived differently. Non-agreements on scheme and policy issues, coupled with the Local Planning Authority’s (LPA) need to take quick decisions, can result in poorer quality schemes and refusal situations where the outcome might have been different.

Our view is that inefficiencies within the NEGOTIATIONS INTERFACE is a major factor in creating a planning system that is under stress. The relatively high number of appeals is indicative of a planning system that cannot produce enough good decisions.

PLANNING MEDIATION - AN ANSWER

Having worked for both Applicants and Local Planning Authorities, we feel that one answer is an effective PLANNING MEDIATION system.

PLANNING MEDIATION is a process by which an independent party is instructed to give a view on a problematic scheme and propose scheme changes and/or action to address the issues of conflict arising between the Applicant and LPA . It is then for both parties to accept or reject the Mediator’s recommendations.

Mediated resolutions can take place at certain points during the planning process, at pre-application, application (after a refusal is mooted by the Council) and post-refusal stages. It can only occur though, if there is a commitment from both sides (Applicant and LPA) to address the issues of conflict within the scheme.

Much depends on the skills of the Mediator and her/his ability to look into the project’s planning issues, to open lines of positive communication between the involved parties and creatively propose resolutions. We call this a process of ADDRESS-MEDIATE-RESOLVE

PLANNING MEDIATION is a process that can be described as:

  • ADDRESSING ISSUES:  The Mediator must assess the proposal and the consider the differences in opinion between the two parties, as well as assessing the relevant policies and the benefits/disbenefits that the scheme may provide. He/she must look for the middle ground. Is it possible that there might be areas of commonality between the Applicant and LPA? Has the scheme failed because of a rigid approach on one or both sides? Might an alternative use mix or changed building mass be possible? The accurate identification of the pertinent issues is a first step towards a successful mediation.

  • MEDIATE:  Mediation is a form of negotiation but involving an independent opinion, in this case in a planning context. The Planning Mediator must at this stage positively mediate the identified issues, often with creative thought about how the massing, form and layout of a scheme might be changed/improved so that a planning permission becomes not only achievable but acceptable to all parties, including the local community. The mediation might involve several layers of communication, possibly with local people or other consultees. Mediation might occur via a meeting(s) or a report.

  • RESOLVE:  After the scheme mediation has gone through one or more negotiation stages, a mediation report is prepared which forms the basis for a revised planning application. Significant costs may be saved at this point by avoiding a planning appeal. By identifying the issues and the problems in the Council to Applicant negotiation, by creatively addressing issues and by ultimately proposing a robust resolution, the scheme has been meditated successfully.

The ADDRESS-MEDIATE-RESOLVE process is one that PETER D KYTE ASSOCIATES has been applying in its work for nearly 20 years. We have resolved many schemes that have met with initial problems (see TRACK RECORD). To this stage though, this has been acting for clients in resolving issues in problematic and more complex schemes.

Our PLANNING MEDIATION service marks a new dimension in our planning problem solving skills – it will be  a neutral and independent service that is wholly aimed at enabling projects. Indeed, it is hoped that our enabling function will be put to good use by Applicants and LPA’s.
THE WIDER COMMUNITY IN THE MEDIATION PROCESS
The Mediator should look at whether there is scope to involve the scheme in a wider community consultation. By effectively bringing in the community to the Mediation process, the NEGOTIATION INTERFACE is widened and the lack of consultation problems raised by quick appeals can be avoided. Social inclusion is also maximised.

It is important to note that PLANNING MEDIATION does not usurp the normal decision making process, and neither are there any barriers to third party involvement. Indeed, we feel that if you use our Mediation Service, you will be going a long way towards implementing the Government’s planning objectives in Planning Policy Statement 1.
GOVERNMENT INTEREST

The Government has shown interest in PLANNING MEDIATION at various points in time, although no clear structure for LPA’s to take forward has been established.

Our initiative is therefore grounded in Government opinion that there may be merit in a UK wide PLANNING MEDIATION SERVICE. We are hoping that both LPA’s and Applicants will be forward looking enough to acknowledge the benefits of PLANNING MEDIATION, before a formal system is introduced (which could take many years, if at all).

AT WHAT STAGE DO YOU CONSIDER PLANNING MEDIATION?

At pre-application stage, after the scheme has been submitted and problems have arisen or after a refusal has occurred, if you would prefer to avoid an appeal situation.

It is worth noting that pre-application mediation is only suitable for bigger and more complex projects. In most situations, good and clear pre-application advice from the LPA should suffice in giving the scheme a positive direction.

Sometimes though, if the positive direction of a scheme is not maintained, PLANNING MEDIATION can be very useful. Thus, Mediation is most useful at post-submission and post-refusal stages.

We are of the view that an option to Mediate should be offered by the Council after each refusal, and during the process if problems have been arisen. Similarly, Applicant’s should be aware of Mediation, so that they can put the idea to the LPA.

Both sides would have to agree in writing that an independent Mediator has been instructed. It is worth noting that there has to be a commitment from both the LPA and Applicant to positively address the scheme issues – if the LPA strongly feel that the principle of development is not acceptable, then Mediation may not be possible.

EXAMPLES OF MEDIATED SCHEMES

PETER D KYTE ASSOCIATES have worked on many schemes that, although not acting in an independent capacity, have been mediated between Applicant and LPA

We do hope that you will take time to download examples of our work from the TRACK RECORD section of this website. In particular, please see the Residential and the LPA & Community Groups case lists, which contain examples of schemes that were previously refused or significantly revised so that planning permission could be granted.

If you would like to discuss our mediation experiences and our possible involvement in your planning application(s), then please do not hesitate to CONTACT Peter Kyte on 020 8632 1706.

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