Planning system - promotion and use of mediation - draft guidance: consultation analysis

2. Potential scope for mediation

2.1 The consultation paper first considered what the mediation process involves, and opportunities for mediation to play a role in the Scottish planning system. It was proposed that the initial focus would be on specific elements of the development planning and development management processes. In relation to development planning, draft guidance focused on promoting use of mediation in relation to development planning schemes and development plan examinations. In relation to development management guidance focused on use of mediation at the pre-application consultation (PAC) stage including in relation to proposal of application notices (PANs).

2.2 The first consultation question asked for views on whether these were the right areas for the guidance, and sought suggestions of other aspects of the planning system where mediation guidance could be introduced.

Q1. Have we got the range of areas to which the mediation guidance should cover right?

Please comment on your answer (particularly if you do not agree).

2.3 A total of 36 respondents answered Question 1, including 27 organisation respondents and nine individuals. Of these respondents, half (18 of 36) agreed with the proposed focus of mediation guidance, and half disagreed. Those disagreeing with the proposed change included a mix of respondent types; six public bodies, six private sector respondents, three third sector respondents and a planning/other professional.

Note: 5 did not respond to the closed element of Question 1.

2.4 A total of 30 respondents provided written comments in support of their response at Question 1.

2.5 Around a third of those providing written comment agreed with the proposed focus of mediation guidance. A number of these respondents related their support to 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, including Gatecheck and development plan examination. It was noted that the planning authority will have a relatively settled view on the scope and content of the development plan at this stage, which can be subject to scrutiny via mediation.

2.6 Some also referred to wider benefits of mediation in terms of reducing conflict and clarifying potential misunderstandings, and suggested that these can contribute to a more efficient and effective planning system. Those supportive of proposals also referred to mediation as having potential to enable continued community involvement in the process.

2.7 Some also agreed that it was appropriate to limit the focus of guidance to specific stages, given mediation will be a significant new feature for the planning system. It was suggested that this should allow for assessment of the effectiveness of mediation to inform any subsequent decisions to expand its role across the planning system. There was some support for future expansion of the role of mediation across the planning system, including suggestions that it was important not to prevent use of mediation in other elements of the planning system where this offers potential to achieve mutually beneficial outcomes.

2.8 Most of those providing comment at Question 1 suggested amendments or additions to the proposed focus of mediation guidance. This included comments from a number of those broadly in favour of the proposed focus of guidance. Issues and suggested amendments raised by respondents are summarised below.

• It was suggested that guidance should provide a clear definition of the range of approaches that can be described as “mediation”, including a distinction between informal and formal mediation. This included some who wished guidance to emphasise that mediation should be a voluntary process for all participants, and to make clear that mediation should not be “required” at any stage of the planning process.
• It was suggested that guidance should provide more detail on how a ‘need’ for mediation is to be defined, including other dispute resolution methods that should be explored first, and timeframes for arranging and undertaking mediation. This included some who felt that guidance should make clear that mediation is not expected to be used in the majority of cases. Some also wished to see more detail on where mediation can add most value and what ‘good’ mediation should look like, including case study examples to illustrate what mediation can be expected to achieve at different stages of the planning system.
• Some wished to see more detailed guidance on which form of mediation is most appropriate at different stages of the development planning and management stages, including for example the relative roles of formal and informal mediation. Alternatively, it was suggested that guidance could specify which party or parties should be responsible for selecting the most appropriate form of mediation for each case.
• Respondents referenced the broad range of dispute resolution approaches available to the planning system. These respondents wished to see a stronger emphasis on other techniques such as informal mediation and ‘community mediation’ alongside mediation. Some felt that informal mediation led by planning officers would be better suited to the planning system, rather than formal mediation led by professional mediators for example. Some also referred to “mediative tools” already in use across the planning system, such as hearings and the new Gatecheck stage, and wished to see guidance highlight these as having a role in resolving disagreement.
• It was also suggested that guidance should distinguish between pre-application consultation and proposal of application notices. It was suggested that advice provided at the PAC stage can be informal, contrasting with the legislative requirements of PANs.
• Some felt that clarity is required around who is considered to be an appropriate person to act as a mediator, including relevant qualifications etc. This included a perceived need to recognise that access to suitable persons may vary at a local and regional level.
• There was some scepticism regarding the potential for mediation to benefit specific stages of the planning system:
  • In relation to the development planning process, it was suggested that mediation may add more value when used between consulting on the draft plan and publishing the proposed plan. Some felt that mediation at this stage could help to reduce the number of unresolved matters at development plan examination, and in this way make the examination stage less resource intensive. However, some indicated that their experience of the PAN process did not demonstrate a need for mediation to resolve conflict, and that stronger guidance on the form and extent of PANs would reduce the likelihood of conflict arising at this stage.
  • There was concern that use of mediation in development planning could undermine the role of the reporter in the development plan process.
  • It was suggested that adding mediation to the Development Plan Scheme would not be appropriate as the National Standards on Community Engagement^[3] should be sufficient to inform the content of the participation statement and engagement strategy.
  • In relation to development management (including PAC) some suggested that this should be an information gathering process, and that mediation at this stage may be premature, for example if the development proposal is not progressed in its current form. It was also noted that new regulations require PAC events to provide feedback on community views, and suggested that this is sufficient opportunity for dialogue between interested parties at this stage.
  • Some also raised concerns regarding potential for use of mediation at the development management stage to undermine the role of planning committees and professional officers in making the final determination. In this context, it was suggested that the outcomes of any mediation at this stage should not be binding on the planning authority.
  • Also in relation to development management, it was suggested that PAC is generally a confidential process between the planning authority, applicant and relevant stakeholders, focused on provision of factual advice and procedural recommendations. Some were of the view that mediation has little to add to this stage. It was also suggested that development management is already well served in terms of engagement opportunities, and that established tools such as hearings can be used to resolve disagreement.
• Some wished to see use of mediation limited to specific aspects of the planning system. Specific suggestions included enforcement and development plan examinations.
• Some saw scope to expand guidance to consider the role of mediation across other aspects of the planning system. There was support for the initial focus on development planning and management processes, but some raised concerns that an overly cautious approach may not be sufficient to achieve the desired shift in use of mediation. It was suggested that guidance could be more effective by detailing the kinds of dispute where mediation could have a role, allowing for judgement to be exercised on a case-by-case basis rather than limiting mediation to specific stages (although it was agreed that these stages are useful exemplars of the kind of role that mediation can play). Some also wished to see a requirement for planning authorities to have a process in place to initiate mediation when it is considered appropriate.
• Suggestions for further expansion of the scope for mediation focused on areas where respondents saw a need to build consensus and/or resolve disagreement:
  • Enforcement notices.
  • Enforcement appeals.
  • Local Place Plans.
  • Section 75 agreements.
  • Compulsory purchase orders (CPO).
  • Allocation of sites in the early stages of the local development plan process.
  • Masterplans.
  • Design guidance.
  • Core paths.