Planning system - promotion and use of mediation - draft guidance: consultation analysis

4. Potential role of mediation

4.1 The consultation paper considered in further detail specific opportunities to embed mediation in the planning system. In relation to development planning these included proposals for the inclusion of mediation in the preparation of Development Plan Schemes and at the development plan examination stage. In relation to development management, it was proposed that mediation would be recommended at the pre-application consultation (PAC) stage, including in additional consultation activity around proposal of application notices (PANs).

The potential role of mediation in development planning

4.2 The consultation paper included four specific consultation questions relating to the role of mediation in development planning processes. Question 4 sought views on proposals relating to Development Plan Schemes, that mediation should be one of the engagement techniques to be considered in the participation statement.

Q4. Do you agree with the proposal that the Scottish Government’s guidance on Development Plan Schemes should reference the use of mediation as one of a range of innovative techniques and activities for engaging stakeholders to be considered in the planning authority’s participation statement?

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

4.3 A total of 32 respondents answered Question 4, including 24 organisation respondents and eight individuals. Of these respondents, a large majority (26 of 32) agreed that guidance on Development Plan Schemes should include mediation as one of a range of innovative techniques and activities for engaging stakeholders. Those disagreeing included three private sector, a public sector and a third sector respondent, and a planning/other professional.

Q4. Do you agree with the proposal that the Scottish Government’s guidance on Development Plan Schemes should reference the use of mediation as one of a range of innovative techniques and activities for engaging stakeholders to be considered in the planning authority’s participation statement?

Respondent type	Yes	No	Total
Organisations	18	6	24
% of organisations	75%	25%	100%
Public sector	9	1	10
Planning authorities	7	1	8
Other public bodies	2	0	2
Planning and other professionals	1	1	2
Private sector	6	3	9
Mediation services	4	0	4
Other	2	3	5
Third sector	2	1	3
Community Councils/representative groups	2	1	3
Other	0	0	0
Individuals	8	0	8
% of individuals	100%	0%	100%
All respondents	26	6	32
% of all respondents	81%	19%	100%

Note: 9 did not respond to the closed element of Question 4.

4.4 A total of 29 respondents provided written comments in support of their response at Question 4.

4.5 Most of those providing written comments were in favour of development plan guidance referencing mediation as one of a range of innovative engagement techniques and activities. These respondents expressed a view that mediation should be recognised as one of a range of potentially valuable engagement techniques, with potential to reduce the range of issues to be taken forward by the planning authority. It was also suggested that promotion of mediation is consistent with a move towards greater engagement and consultation across the planning system.

4.6 However, some questioned the potential scale of use of mediation at the Development Plan Stage. It was suggested that community interest in the Development Plan Scheme is typically low, that there may be limited scope for conflict at this stage, and that any unresolved issues are unlikely to involve a simple disagreement between two parties. However, others suggested that “less formal” mediative approaches may have a role to play.

4.7 The majority of those providing comment at this question raised issues or suggested amendments to the proposal for development plan guidance to reference mediation. This included comments from a number of those broadly in favour of the proposal. Issues and suggested amendments raised by respondents are summarised below.

• Some wished to see guidance provide clarity on the purpose and most appropriate use of mediation, as one of a range of approaches available to resolve conflict. This was seen as crucial in assisting stakeholders to identify the most appropriate approach for each case. This included calls for detail on the various forms that mediation can take, and how it can support stakeholder engagement and ensure communities feel that their views have been heard. Some also wished to see guidance emphasise that mediation is not intended to replace open, public consultation methods, and that planning authorities retain the ability to select the engagement approaches to be used.
• There were some concerns that policy support could in effect elevate mediation to “best practice” and raise stakeholder expectations that mediation will or should be used in all or most circumstances. Some wished to see guidance make clear that mediation may not be the best option in all circumstances, and should not be assumed to be the primary or “default” approach to stakeholder engagement.
• Some questioned whether formal mediation can have a role in development planning, suggesting that there is limited scope for conflict, and that more open “round table” engagement with stakeholders may be more appropriate at this stage. It was suggested that, if mediation is to be referenced in the participation statement, this should be limited to the development plan examination process only.
• Concerns were also expressed regarding potential costs and delays given the complexity of issues to be considered and the diversity of stakeholders involved – and the need to update Development Plan Schemes annually. It was noted that there is no evidence that formal mediation can support production of a spatial plan, as this did not form part of the pilot case studies. It was also noted that 2009 mediation guidance advises that the process should not be used where “there are significant issues of public interest which need to be resolved in a formal manner”, with some of the view that this applies to development planning. Some also raised concerns that use of mediation at this stage may not help to better engage communities, for example if they do not trust the process.
• Some commented on how mediation might most effectively contribute to the Development Plan Scheme, including suggestions that mediation may be appropriate to resolve issues ahead of formal stages such as Gatecheck and publication of the proposed plan. Some also suggested that dissemination of good practice and learning points could help to inform planning authorities’ use of mediation.
• It was suggested that any guidance relating to use of mediation should ensure consistency with forthcoming guidance on the scope and content of the Development Plan Scheme.
• Some raised concerns that guidance should seek to maintain transparency of the Development Plan Scheme process if mediation is used. This included calls for the results of mediation being made public, and subject to comment.

4.8 Question 5 sought views on a proposal that use of mediation should be considered by planning authorities in the preparation of the participation statement element of their Development Plan Schemes.

Q5. Do you agree with the proposal that planning authorities should consider the use of mediation when preparing the participation statement element of their Development Plan Schemes?

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

4.9 A total of 30 respondents answered Question 5, including 22 organisation respondents and eight individuals. Of these respondents, most (20 of 30) agreed that planning authorities should consider use of mediation when preparing their participation statement, and ten disagreed. Those disagreeing included five public sector, three private sector and a third sector respondent, and a planning/other professional.

Q5. Do you agree with the proposal that planning authorities should consider the use of mediation when preparing the participation statement element of their Development Plan Schemes?

Respondent type	Yes	No	Total
Organisations	12	10	22
% of organisations	55%	45%	100%
Public sector	5	5	10
Planning authorities	3	5	8
Other public bodies	2	0	2
Planning and other professionals	1	1	2
Private sector	5	3	8
Mediation services	4	0	4
Other	1	3	4
Third sector	1	1	2
Community Councils/representative groups	1	1	2
Other	0	0	0
Individuals	8	0	8
% of individuals	100%	0%	100%
All respondents	20	10	30
% of all respondents	67%	33%	100%

Note: 11 did not respond to the closed element of Question 5.

4.10 A total of 27 respondents provided written comments in support of their response at Question 5.

4.11 This included a number of respondents expressing support for the proposal that planning authorities should consider use of mediation in preparing their participation statement. Some of these respondents noted that this is consistent with the requirement on planning authorities to consult with the public on the participation statement, and felt that mediation should be part of the “toolkit” of approaches available to planning authorities. This included support for a role for “formal mediation” and other mediative approaches that may be appropriate to resolve disputes prior to production of the proposed plan. This also reflected a wider view that mediation may be most effective when used early in the development planning process.

4.12 However, as noted at question 4, some wished to ensure mediation would not be a requirement on planning authorities, for example if other engagement approaches are sufficient to resolve outstanding issues. This also reflected concerns noted below that excessive use of mediation could delay production of the development plan.

4.13 Most of those providing comment at Question 5 raised issues or suggested amendments to the proposal for mediation to be considered by planning authorities in preparing their participation statement. This included comments from a number of those broadly in favour of the proposal. Issues and suggested amendments raised by respondents are summarised below.

• Some were of the view that mediation is not appropriate at this stage. This included reference to the level of uncertainty around the Development Plan, and whether planning authorities will be aware of which site allocations or policies are likely to be controversial. It was also suggested that there may be potential for subsequent change to timetables or engagement methodologies for the participation statement. There were some concerns that promoting mediation in the preparation of the participation statement could raise stakeholder expectations regarding the degree of certainty that a Development Plan Scheme can realistically provide. Moreover, it was suggested that this could lead to the Development Plan Scheme being “weaponised” if disagreements emerged regarding the proposed engagement approach and timetabling.
• It was noted that planning authorities should be adhering to the National Standards on Community Engagement, and some were of the view that further guidance on engagement approaches is not required.
• Some wished to see guidance make clear that mediation is not a requirement for preparation of the participation statement, and set out the range of other approaches that may be more appropriate dependent on specific circumstances. Some also preferred to see guidance support a broader range of more “collaborative” engagement approaches with a focus on facilitating discussion and exploring solutions, rather than singling out mediation for specific support.
• Concerns were expressed regarding potential for guidance to add to the burden on planning authorities in preparing Development Plan Schemes, with some of the view that introducing mediation at this stage was likely to delay the overall preparation of the development plan. In this context, some wished to see mediation used selectively to avoid unnecessary delays. For example, it was suggested that mediation should be referenced by the participation statement where the authority intends to revise policy, as a means of encouraging stakeholder engagement.

4.14 Question 6 sought views on proposals for further investigation of the potential role for mediation at the new ‘Gatecheck’ stage. This stage involves production of an evidence report in advance of preparing a local development plan.

Q6. Do you agree that the Scottish Government should further investigate the potential role of mediation at the Gatecheck stage?

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

4.15 A total of 30 respondents answered Question 6, including 21 organisation respondents and nine individuals. Of these respondents, a large majority (25 of 30) agreed with the Scottish Government further investigating the role of mediation at the Gatecheck stage, and five disagreed. Those disagreeing included three private sector and a third sector respondent, and a planning/other professional.

Q6. Do you agree that the Scottish Government should further investigate the potential role of mediation at the Gatecheck stage?

Respondent type	Yes	No	Total
Organisations	16	5	21
% of organisations	76%	24%	100%
Public sector	7	0	7
Planning authorities	5	0	5
Other public bodies	2	0	2
Planning and other professionals	1	1	2
Private sector	6	3	9
Mediation services	4	0	4
Other	2	3	5
Third sector	2	1	3
Community Councils/representative groups	2	1	3
Other	0	0	0
Individuals	9	0	9
% of individuals	100%	0%	100%
All respondents	25	5	30
% of all respondents	83%	17%	100%

Note: 11 did not respond to the closed element of Question 6.

4.16 A total of 28 respondents provided written comments in support of their response at Question 6.

4.17 Around half of those providing comment supported further investigation of the potential 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, although some reiterated concerns regarding potential for delay to production of the development plan.

4.18 Most of those providing comment at Question 6 raised issues or suggested amendments to the proposal for the Scottish Government to further investigate the potential role of mediation at the Gatecheck stage. This included comments from a number of those broadly in favour of the proposal. Issues and suggested amendments raised by respondents are summarised below.

• It was noted that the focus of the Gatecheck process is to establish whether sufficient evidence has been presented to progress to production of a local development plan. Some suggested that there is likely to be limited scope for dispute, and that it was therefore unclear what value mediation could add to Gatecheck. This included a view that any benefits are unlikely to be worth the additional burden on planning authorities and potential for further delay to the process. Some were also of the view that it should be the Reporters’ role to ascertain if the evidence base for the development plan is sufficient, and that use of mediation would be more appropriate following production of the proposed plan.
• It was suggested that a pilot exercise may be useful in assessing the potential for mediation to contribute to the Gatecheck stage.
• Some expressed concern that mediation may not significantly reduce the number of unresolved representations taken forward to the development plan examination stage.
• It was suggested that Gatecheck should be conducted in public to ensure it receives full scrutiny. Some were concerned that formal mediation will not provide the necessary transparency.
• It was noted that the Evidence Report submitted for Gatecheck may already incorporate the outcomes of mediation, for example if this has been used in preparation of the participation statement. Some questioned what role further mediation might play at this stage.

4.19 Question 7 sought views on proposals for guidance to encourage use of mediation in advance of the development plan examination stage, for example to resolve differences between parties relating to the planning authority’s development plan proposals.

Q7. Do you agree with the proposal that the Scottish Government guidance should encourage the use of mediation between parties in advance of the development plan examination stage?

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

4.20 A total of 32 respondents answered Question 7, including 24 organisation respondents and eight individuals. Of these respondents, a large majority (26 of 32) agreed with encouraging use of mediation between parties in advance of development plan examination, and six disagreed. Those disagreeing included two public sector, two private sector and a third sector respondent, and a planning/other professional.

Q7. Do you agree with the proposal that the Scottish Government guidance should encourage the use of mediation between parties in advance of the development plan examination stage?

Respondent type	Yes	No	Total
Organisations	18	6	24
% of organisations	75%	25%	100%
Public sector	8	2	10
Planning authorities	6	2	8
Other public bodies	2	0	2
Planning and other professionals	1	1	2
Private sector	7	2	9
Mediation services	3	0	3
Other	4	2	6
Third sector	2	1	3
Community Councils/representative groups	2	1	3
Other	0	0	0
Individuals	8	0	8
% of individuals	100%	0%	100%
All respondents	26	6	32
% of all respondents	81%	19%	100%

Note: 9 did not respond to the closed element of Question 7.

4.21 A total of 27 respondents provided written comments in support of their response at Question 7.

4.22 Most of those providing written comment agreed with the proposal to encourage use of mediation between parties in advance of development plan examination. These respondents expressed support for the potential benefits of mediation at this stage in terms of reducing the number of unresolved issues taken forward for examination, and noted that current guidance on this stage does not include any reference to mediation. It was also suggested that there may be an increasing need for in-person discussion between planning authorities and developers regarding allocated sites, as local development plans move to a longer ten-year cycle. However, this support was tempered by concerns regarding potential delays to production of the development plan, and a view that guidance should not require the use of mediation. It was also suggested that informal mediation may be more appropriate at this stage to inform the Reporters’ work, rather than a formal mediation process with a binding outcome.

4.23 The majority of those providing comment at Question 7 suggested amendments or additions to proposals, including suggestions from some of those broadly in favour of proposals. Issues and suggested amendments raised by respondents are summarised below.

• Some wished to see guidance focus on use of mediation during the period prior to production of the proposed plan. These respondents were sceptical about the usefulness of mediation after publication of the proposed plan, as this represents the settled view of the planning authority and producing a revised plan would require significant time and resources.
• There were some concerns regarding the potential for use of mediation to delay development plan examination timescales, particularly given the wide range of unresolved issues often considered at this stage. Some wished to see guidance specify a timeframe for any use of mediation, to avoid undue delays.
• There were also concerns that use of mediation could add to the overall cost of the development plan examination stage. This reflected some scepticism regarding the potential for mediation to significantly reduce the number of issues to be taken forward for examination. Moreover, some raised concerns that mediation could harden opposing positions and add to conflict if the process is unsuccessful. This included a suggestion that housing land supply is a key cause of conflict at this stage, and that mediation is unlikely to resolve these complex issues.
• It was suggested that local communities may be unwilling to use mediation in some circumstances, for example if they cannot see a means by which strongly held opposing views can be resolved.
• It was suggested that guidance should ensure that mediation does not undermine the role of the Reporter in the development plan examination process, and should specify how mediation outcomes should be reported as part of the examination process.

The potential role of mediation in development management

4.24 Question 8 sought views on proposals for amendment of guidance on Proposal of Application Notices to encourage use of mediation to resolve any disputes at the pre-application consultation stage.

Q8. Do you agree with the proposal that the Scottish Government guidance should amend its guidance on Proposal of Application Notices to encourage the use of mediation between parties in any additional consultation activity attached to PAC?

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

4.25 A total of 36 respondents answered Question 8, including 27 organisation respondents and nine individuals. Of these respondents, most (26 of 36) agreed with amending guidance to encourage use of mediation at the pre-application stage, and ten disagreed. Those who disagreed included five private sector, two public sector, and two third sector respondents, and one individual.

Q8. Do you agree with the proposal that the Scottish Government guidance should amend its guidance on Proposal of Application Notices to encourage the use of mediation between parties in any additional consultation activity attached to PAC?

Respondent type	Yes	No	Total
Organisations	18	9	27
% of organisations	67%	33%	100%
Public sector	7	2	9
Planning authorities	5	2	7
Other public bodies	2	0	2
Planning and other professionals	3	0	3
Private sector	6	5	11
Mediation services	4	0	4
Other	2	5	7
Third sector	2	2	4
Community Councils/representative groups	2	1	3
Other	0	1	1
Individuals	8	1	9
% of individuals	89%	11%	100%
All respondents	26	10	36
% of all respondents	72%	28%	100%

Note: 5 did not respond to the closed element of Question 8.

4.26 A total of 29 respondents provided written comments in support of their response at Question 8.

4.27 The majority of those providing comment supported the proposed amendment of guidance to encourage use of mediation to resolve any disputes at the pre-application consultation (PAC) stage. These respondents referred to the potential benefits of mediation in resolving conflict or disagreement at this stage. Mediation was seen as having a particularly useful role in fostering more constructive dialogue between developers and local communities, potentially reducing the number of objections to the subsequent planning application.

4.28 It was also suggested that current planning policy and guidance places little onus on developers to resolve any concerns raised before they submit a planning application, and that revising guidance is an opportunity to encourage use of mediation (where appropriate) to seek a resolution to any concerns.

4.29 Most respondents commenting at Question 8 suggested amendment or addition to proposals, including a number suggested by those broadly in favour of use of mediation at the pre-application consultation stage. Issues and suggested amendments raised by respondents are summarised below.

• Some of those opposed to PAN guidance encouraging use of mediation expressed concerns that mediation should not be made compulsory, and should remain a voluntary additional activity.
• Some expressed concerns that use of formal mediation may not be consistent with moves to make the PAC process more consistent and transparent. It was suggested that formal mediation is typically a confidential process, and parties may not assume that written documentation submitted as part of a mediation process would be made public. Some wished to see guidance note that parties would need to agree to the outcome and reasoning of any mediation to be published to ensure the transparency of the PAC process.
• Some also suggested that use of mediation at the PAC stage would be premature. These respondents noted that proposals at this stage have not been finalised, and suggested that the purpose of PAC should be to refine the subsequent planning application to minimise conflict. Some also suggested that formal mediation should not be used in relation to development of allocated sites identified through the development plan (which may itself have been the subject of mediation).
• Some wished to see guidance provide more detail on the circumstances in which it would be appropriate for local authorities to encourage mediation at the PAC stage, and the process involved. This included suggestions that guidance should address timescales for mediation (to avoid delays to the PAC process), who can instigate or request mediation, how the impartiality of the mediator will be ensured, and how transparency of the process will be maintained.
• Some wished to see detail on how mediation costs will be met. This included a suggestion that, where mediation is between developers and the local community, costs should be met by the developer as the main beneficiary of planning approval. It was also suggested that meeting these costs would be unsustainable for planning authorities.
• There were some concerns that communities must have confidence in the mediation process, and in particular that communities must feel that it will enable their ideas to be fully taken into account. Specific suggestions to build this trust included allowing the community to select from a list of prospective mediators, and conducting mediation in public with outcomes and reasoning published following completion of the process.
• Some wished to see clarity on the legal status of the outcome of mediation at this stage, specifically that any decision reached through mediation would not be binding on subsequent planning application determination.

4.30 Question 9 sought views on proposals to encourage use of mediation between parties in pre-application consultation, including as part of developers’ approaches to community engagement.

Q9. Do you agree with the proposal that the Scottish Government should provide guidance encouraging the use of mediation between parties in Pre-Application Consultation?

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

4.31 A total of 36 respondents answered Question 9, including 27 organisation respondents and nine individuals. Of these respondents, most (27 of 36) agreed with guidance encouraging use of mediation between parties in PAC, and nine disagreed. Those who disagreed included four private sector, two public sector and two third sector respondents, and one individual.

Q9. Do you agree with the proposal that the Scottish Government should provide guidance encouraging the use of mediation between parties in Pre-Application Consultation?

Respondent type	Yes	No	Total
Organisations	19	8	27
% of organisations	70%	30%	100%
Public sector	7	2	9
Planning authorities	5	2	7
Other public bodies	2	0	2
Planning and other professionals	3	0	3
Private sector	7	4	11
Mediation services	4	0	4
Other	3	4	7
Third sector	2	2	4
Community Councils/representative groups	2	1	3
Other	0	1	1
Individuals	8	1	9
% of individuals	89%	11%	100%
All respondents	27	9	36
% of all respondents	75%	25%	100%

Note: 5 did not respond to the closed element of Question 9.

4.32 A total of 31 respondents provided written comments in support of their response at Question 9.

4.33 The majority of those providing written comment supported the Scottish Government providing guidance to encourage use of mediation at the PAC stage. Similar to comments in support of proposals at Question 8, these respondents saw potential benefits of mediation as part of this process, and supported the promotion of mediation as one of a range of potential engagement approaches.

4.34 However, most of those commenting at Question 9 raised issues or suggested amendments to proposals, including from some of those broadly in favour of the use of mediation at the PAC stage. Issues and suggested amendments raised by respondents are summarised below.

• A number of the issues and concerns raised at Question 8 were repeated in relation to Question 9. Specifically, respondents felt that that guidance should set clear expectations of what mediation might achieve at the PAC stage, how use of mediation at this stage would be funded (including particular concerns regarding planning authority resources), potential impact on the transparency of the process, that use of mediation should remain voluntary, and that any decision reached should not be binding on the planning authority. Some also reiterated a view that the focus of guidance should be on ensuring meaningful engagement between relevant parties, rather than recommending a specific engagement approach.
• Other amendments or suggestions raised specifically in relation to Question 9 are summarised below.
  • Those objecting to proposals suggested that mediation would be better used in response to the final planning application. These respondents noted that proposals have not been finalised at the PAC stage, and that this stage should focus on gathering feedback to inform final proposals rather than coming to a resolution. It was also suggested that it is too early to evaluate the impact of recent changes to PAC requirements, and that it has not been proven that mediation could add value to PAC.
  • Some felt that mediation may be appropriate at the PAC stage where sites have not been identified by the local development plan. There were also calls more generally for guidance to specify the kinds of circumstances where mediation may be most appropriate, potentially including use of best practice examples.
  • It was suggested that formal mediation should not be recommended for sites allocated in the local development plan, where the principle of development has already been agreed. However, some saw a role for informal mediation where this is focused on the details of the proposal.
  • It was suggested that guidance should specify timeframes for the mediation process as part of PAC, and make clear that all parties have a responsibility to support these timeframes.
  • It was suggested that guidance should be clear on which parties are expected to participate in mediation at the pre-application stage, including whether this should be the community council or other community groups or individuals. Some noted that it may not be appropriate for the planning authority to participate, given their role in determining any subsequent planning application.