Planning system - promotion and use of mediation - draft guidance: consultation analysis

Executive Summary

1. This report presents analysis of responses to a public consultation on draft guidance on the promotion and use of mediation in the Scottish planning system. In total 41 responses were received, of which 31 were from groups or organisations and 10 from individual members of the public.

Potential scope for mediation

2. Half of those who provided comment agreed with the proposed focus of mediation guidance. These respondents expressed a view that mediation can add most value at the earliest stages of the planning process, and there was particularly strong support for use of mediation at the development plan stage. Some also suggested that limiting guidance to specific stages of the planning process would allow for assessment of its effectiveness to inform any subsequent decisions to expand the role of mediation.

3. However, most respondents suggested amendments or additions to the proposed scope of use of mediation. This included some who were sceptical about the potential for mediation to benefit specific stages, suggesting that the approach would be inappropriate and/or add unnecessary delays to key stages of the planning process. In contrast, some saw scope to consider the role of mediation more widely across the planning system. This included in relation to specific aspects of the planning system such as enforcement notices and appeals, Local Place Plans and Section 75 agreements.

4. Specific amendments suggested to proposed guidance included providing a clear definition of the range of approaches that can be described as ‘mediation’, more detail on how a ‘need’ for mediation is to be defined, guidance on which forms of mediation are most appropriate at different stages of development planning and development management, and timeframes for undertaking mediation. Some also wished to see a stronger emphasis on the range of other dispute resolution approaches available to the planning system, alongside mediation.

Policy support for mediation

5. A large majority of those providing comment agreed with NPF4 maintaining policy support for mediation. Some saw a need for national policy support to provide a ‘mandate’ for planning authorities and other participants to take forward use of mediation, and to ensure that mediation is used effectively across the planning system.

6. Most respondents raised issues or suggested amendments to proposed policy support for mediation. This included concern that mediation should remain a voluntary process for all parties; some wished to see NPF4 make clear whether (and in what circumstances) mediation would be a statutory requirement. Some also expressed concerns regarding potential use of mediation in relation to housing requirements, and suggested that mediation may be unlikely to resolve disputes in these circumstances given the complexity of the assessment process.

7. There were also calls for policy support to clarify when mediation may be the most appropriate approach to resolve disputes or build consensus, and the mechanism for providing mediation services in the planning system (including reference to potential for a national body providing mediation services). Respondents also wished to see further detail on how use of mediation in the planning system is to be resourced, including concerns that planning authorities may require additional resources.

8. The consultation paper and associated BRIA noted that there is limited evidence available on the cost effectiveness of mediation, and asked respondents to describe any prior experience of mediation costs and how these were shared between parties. Respondents raised some concerns regarding the potential cost effectiveness of mediation, and this was related to wider concerns about the ability of planning authorities to fund mediation in the context of limited public sector resources - and the range of unfunded additional duties placed on planning authorities by the Planning (Scotland) Act 2019.

9. A number of respondents reflected on their experience of mediation services. This included suggestions that direct professional costs may form a relatively small proportion of the total cost, compared with the time input required from the parties involved. In this context, concerns were raised that cost estimates included in the BRIA do not include any predicted costs for local communities. There were also suggestions that the BRIA significantly underestimates the number and size of mediation events likely to be required in local development plan preparation.

10. In terms of how costs may be met, some mediation services suggested that costs are typically shared between parties, or are met by the party initiating the process and/or economically advantaged by the proposal. However, some respondents suggested that take-up of mediation may be limited if one or other party is required to meet up-front costs. There were also concerns that a model which required a contribution from communities or individuals could exacerbate existing inequalities in the planning system by limiting participation in mediation to more affluent communities.

Potential role of mediation: development planning

11. A large majority of those providing comment agreed that guidance on Development Plan Schemes should include mediation as one of a range of innovative techniques and activities for engaging stakeholders. These respondents wished to see mediation recognised as one of a range of potentially valuable engagement techniques, with potential to reduce the number of issues taken forward to development plan examination. It was also suggested that promotion of mediation is consistent with a move towards greater engagement and consultation across the planning system. However, there were some concerns that policy support could in effect elevate mediation to ‘best practice’ and raise stakeholder expectations that mediation should be used in all or most circumstances.

12. Some also questioned the potential scale of use of mediation at the Development Plan stage. It was suggested that community interest at this stage is typically low, that there may be limited scope for conflict, and that more open ‘round table’ engagement may be more appropriate. There were also concerns regarding potential costs and delays given the complexity of issues to be considered and the diversity of stakeholders involved.

13. Most of those providing comment agreed that planning authorities should consider use of mediation when preparing their Development Plan Scheme participation statement. Respondents noted that this is consistent with the requirement for planning authorities to consult with the public on the participation statement, and felt that mediation should be part of the ‘toolkit’ for authorities.

14. However, some were of the view that mediation is not appropriate. This included reference to uncertainty around the Development Plan at this stage, including which policies are likely to give rise to objections or conflict. Concerns were also expressed regarding potential for guidance to add to the burden on planning authorities in preparing Development Plan Schemes, with some of the view that mediation would be likely to delay the process.

15. A large majority of those providing comment agreed with the Scottish Government further investigating the role of mediation at the Gatecheck stage. These respondents noted that Gatecheck is still at a formative stage and were of the view that a decision on what, if any, role mediation may have should be made once the operation of Gatecheck is clarified. However, these respondents did see potential for mediation to add value at this stage if clear objectives and parameters are set.

16. Others questioned whether there should be a role for mediation at the Gatecheck stage. These respondents noted that the focus of this stage is on establishing whether there is sufficient evidence for production of a local development plan, and suggested that there is likely to be limited scope for dispute. Some felt that any benefits associated with mediation are unlikely to be worth the additional burden on planning authorities and potential for delay to the Gatecheck process.

17. A large majority of those providing comment agreed with encouraging use of mediation between parties in advance of development plan examination. These respondents saw potential for use of mediation at this stage to reduce the number of unresolved issues taken forward for examination. However, this support was tempered by concerns regarding potential delays to production of the development plan, and a view that mediation should not be a requirement.

18. A number of other expressed concerns were raised regarding mediation in advance of development plan examination. Some wished to see guidance focus on mediation during the period prior to production of the proposed plan, and there were concerns regarding potential for mediation to add to the time and cost of development plan examination given the wide range of unresolved issues which the examination stage is often required to address.

Potential role of mediation: development management

19. Most of those providing comment agreed with guidance encouraging use of mediation between parties during pre-application consultation (PAC). These respondents saw potential benefits in fostering more constructive dialogue between developers and local communities, and therefore potentially reducing the number of objections to the subsequent planning application. There were calls for mediation to be encouraged as one of a range of potential engagement approaches.

20. Those opposed to mediation at this stage raised concerns that formal mediation may not be consistent with moves to make PAC more transparent, and suggested that guidance should require the outcome and reasoning of any mediation to be published to ensure transparency. Some also felt that mediation during PAC would be premature, particularly for sites allocated in the local development plan where the principle of development has already been accepted. There were calls for guidance to specify the circumstances where it would be appropriate to encourage mediation, and the process involved including timeframes and allocation of costs.