Planning system - promotion and use of mediation - draft guidance: consultation analysis

1. Introduction

1.1 This report presents summary analysis of responses to a public consultation on draft guidance on the promotion and use of mediation in the Scottish planning system. This includes tabular analysis of responses to all ‘closed’ consultation questions, and a summary of suggested amendments or additions to the draft guidance.

Background

1.2 Primarily used to resolve disputes and build bridges between parties, mediation is one of a range of alternative dispute resolution techniques that include facilitation, arbitration and conciliation. Mediation is a voluntary process, typically facilitated by an independent third party to identify stakeholders’ concerns and needs and, if possible, reach a mutually acceptable solution.

1.3 The Scottish Government has supported use of mediation across a range of policy areas. This has included particular use of alternative dispute resolution in the justice system, although mediation has also been increasingly used in other areas such as family disputes, peer to peer mediation for children, and community/neighbour disputes. There has also been support for the role of mediation in the Scottish planning system for a number of years, including policy and guidance supporting use of mediation in community engagement, compensation related to compulsory purchase of land, and in allocating land as part of development planning. Most recently, section 40 of the Planning (Scotland) Act 2019 required Scottish Ministers to introduce guidance on promotion and use of mediation in the planning system. This includes guidance on mediation in areas of the planning system with potential for conflict or disagreement, which may include: preparation of local development plans; pre-application consultation; and determination of planning applications.

1.4 Consideration of the role of mediation in the planning system in Scotland sits within Scottish Government’s wider ongoing planning reform programme, which includes a particular focus on reducing conflict and improving community engagement. As such, guidance has potential relevance across multiple aspects of this wider planning reform work, and ultimately in building public confidence in the planning system. For example, the consultation paper makes clear that mediation may have a role in enhancing community engagement in local development plans, in the proposed right for community bodies to prepare Local Place Plans, and in pre-application consultation with communities. Regulations amending provisions for pre-application consultation will come into force shortly, and the Scottish Government consulted on proposals for regulations on Local Place Plans until June 2021.

1.5 The draft guidance on promotion and use of mediation is the subject of this consultation. In producing the guidance, Scottish Government has drawn on proposals for promotion and use of mediation developed by Scottish Mediation and PAS, the Guide to the Use of Mediation in the Planning System in Scotland produced in 2009, and outputs from research into mediation published in 2011.

1.6 The consultation paper is structured around several key themes considered by the draft guidance, including the definition and function of mediation, policy support for use of mediation in the planning system, the potential role of mediation in specific aspects of the planning system in Scotland, and impact assessments produced alongside guidance. The consultation asks 13 questions across these aspects of the draft guidance, 8 of which include a closed element alongside an opportunity for respondents to provide written comment. In addition, the consultation invited respondents to provide information on any experience of mediation, including any costs incurred (financial or otherwise).

1.7 The consultation opened on 15 December 2020 and closed on 12 March 2021. The consultation paper is available on the Scottish Government consultation hub^[1].

Profile of responses

1.8 In total 41 responses were received, of which 31 were from groups or organisations and 10 from individual members of the public. Where consent has been given to publish the response it can be found on the Scottish Government consultation hub^[2].

1.9 Respondents were asked to identify whether they were responding as an individual or on behalf of a group or organisation. Group respondents were allocated to one of four broad categories (and one of six sub-groups) by the analysis team. A breakdown of the number of responses received by respondent type is set out in Table 1 below, and a full list of group respondents appended to this report.

1.10 Most respondents (25 of 41) addressed all nine consultation questions on the content of draft guidance, and a large majority addressed at least seven of these questions (38 of 41). Fewer respondents addressed the four consultation questions on the impact assessments undertaken in relation to the draft guidance, although most felt able to answer at least one of these questions.

Analysis and reporting

1.11 This report presents an analysis of responses received in relation to each of the consultation questions in turn. Tabular results are based only on those responding to each question, hence base numbers vary from question to question.

1.12 Respondents made submissions in a range of formats, some including material that did not directly address specific consultation questions. This content was analysed qualitatively under the most directly relevant part of the consultation. There was some commonality in themes raised across the consultation questions; we note where this is the case but have not repeated a full account of each theme across all questions.