A Guide to the Use of Mediation in the Planning System in Scotland

3. Particular Opportunities for the Use of Mediation in Planning

There are a number of areas in the Scottish planning system where it might be appropriate for mediation - in the right circumstances - to take place. These include:

• Pre-application Consultation - section 11 of the Planning etc (Scotland) Act 2006 introduced statutory pre-application consultation between prospective applicants and communities of geography and interest likely to be affected by certain proposals. The scope of that consultation is to be determined by the planning authority on receipt of a proposal of application notice for a national or major development. The use of mediation may improve the quality of such consultation in informing the aspects of the proposal subject to pre-application consultation, thereby identifying ways of bringing benefits to both applicant and community, and removing potential objections once the application is submitted.
• Pre-determination Hearings - section 14 of the Planning etc (Scotland) Act 2006 introduced pre-determination hearings where parties may be afforded the opportunity of appearing before and being heard by a committee of the authority. Mediation could be employed at or around the hearing to seek consensus, minimise committee time, and at least narrow the issues in question.
• Good Neighbour Agreements - section 24 of the Planning etc (Scotland) Act 2006 introduces good neighbour agreements where an applicant may enter into an agreement with the relevant community body to regulate operations and use of land. Where the parties concerned each have an interest in the matter, mediation could form an appropriate method in which to discover respective interests, improve design quality, and help unlock any impasse in agreeing and modifying the terms of an agreement.
• Neighbour Disputes - disputes between neighbours in relation to planning applications are frequent within the planning system. Such tension has the capacity to strain relations within a community, as well as occupy planning officers' time to a disproportionate extent. The use of mediation may serve as a way to help parties identify a solution that is acceptable to those concerned, and (provided that the solution is compatible with local planning policy) minimise time and resources expended by planning officers.
• Post-determination - there may be merit in applicants seeking to mediate with objectors following refusal of an application or following an unsuccessful appeal should they be looking to vary or re-design a proposal.
• Development Plans - section 2 of the Planning etc (Scotland) Act 2006 introduced strategic and local development plans into the Scottish planning system. Mediation is best used during the early engagement phase to mitigate the possibility of dispute at a later stage, and to inform the preparation of the spatial strategy.
• Planning Agreements - under section 75 of the Town and Country Planning (Scotland) Act 1997, developers may enter into contractual agreements with planning authorities and other parties (where relevant) to control a development. The terms of such an agreement may be the source of a dispute. Similarly, developers are often expected to contribute to local services and infrastructure, as well as to provide a quota of alternative housing in residential development. Mediation could offer a process of assisting negotiations for the parties involved.
• Enforcement - in order to reduce time and expense, there may be scope for mediation to take place in advance of planning authorities carrying out full enforcement measures.
• Major Applications - in cases where parties to a major application are at a deadlock, it may be appropriate to consider mediation as a way to move matters forward. Similarly, there may be scope for the use of mediation when applicants, planning authorities and statutory consultees consider processing agreements.
• Renewable Energy - the importance of using clean and sustainable energy from renewable sources results from the need to tackle climate change, and to ensure secure and diverse energy supplies. Public opinion can be polarised on proposals for the likes of wind farms, hydro electric schemes and electricity transmission lines, and contention often arises as to how a particular development is to be designed. There may be scope - in appropriate circumstances - for applicants, local communities and statutory consultees to use mediation as a way to improve the design and siting of a project, identify ways of addressing issues such as the natural and historic environments and achieving community benefits.
• Flood Management - the importance of flood management in protecting homes and businesses from damage is set to increase with the passage of the Flood Risk Management Bill. Climate change is expected to add to the risk of flooding. Affected parties are able to seek compensation for any damage and disturbance caused by a scheme, but may also decide to object to a proposed flood protection scheme, for example, to seek changes to avoid disruption to their property. In the event that a local authority is unable to resolve an objection then a public examination (such as a public local inquiry or hearing) will take place. It may be appropriate for authorities to consider using mediation as a way to resolve objections, avoid the time and costs of a public examination, and accelerate the process.
• Roads and the Transport and Works (Scotland) Act 2007 - an increasing number of towns and cities have sought the implementation of bypass routes to improve health and safety, as well as minimise pollution within urban centres. The extent of competing interests creates complex scenarios which are often referred to a hearing. In addition, the introduction of the Transport and Works (Scotland) Act 2007 brings the ability of public and private bodies to apply for TAWS orders. Pre-application consultation plays an important part in the process of applying for a TAWS order, and applicants are encouraged to engage with those potentially affected. In these typically multi-party scenarios that can become protracted, there may be scope for mediation to be introduced to help resolve deadlock, narrow the issues, or avoid the need for public examination.
• Marine Fish Farming - marine fish farms provide an important source of employment along the West Coast and around the islands of Scotland. Planning law now requires that fish farm operators apply for planning permission to operate marine fish farms. In appropriate circumstances, mediation could play a role in the marine fish farm sphere to assist and improve dialogue between applicants, district fishery boards, statutory environmental consultees and objectors to identify the most appropriate locations for fish farms, agree on appropriate conditions under which a fish farm should operate, and identify ways to ensure that both local employment and the natural environment are protected.
• National Parks - the National Parks (Scotland) Act 2000 established national parks in Loch Lomond and Trossachs as well as the Cairngorms. The aims of the national parks include: conserving and enhancing the natural and cultural heritage of an area; promoting sustainable use of the natural resources; promoting understanding and enjoyment of the special qualities of the area by the public; and promoting sustainable economic and social development of the area's community. The broad range of competing land uses and interests creates particular challenges for national park authorities. Mediation could provide a tool that helps national park authorities find creative solutions to accommodate this variety of interests.

Summary of Opportunities