Gordon Clark and Sarah McCormick review the potential of an alternative form of resolution for planning disputes in Scotland.
Not for the first time, the Scottish government is considering the role of mediation in the Scottish planning system. A consultation paper was published in December 2020, seeking views on draft guidance for the promotion and use of mediation in the planning system in Scotland. The consultation period closed on 12 March.
Using mediation to help with planning disputes in Scotland is not a new concept. There is already Scottish government guidance on the topic, published in 2009, and Scottish planning policy supports the use of mediation. The 2020 consultation paper reflects a renewed push by the Scottish government, as part of its wider programme of planning reform, to find ways to promote collaboration over conflict.
What is mediation?
Mediation is a means of exploring the resolution of a dispute, or at least of narrowing its scope. Mediation can be formal (where an independent third party facilitates the process) or informal (where planners and other relevant stakeholders take a conciliatory approach but are not aided by a third party). As mediation is a consensual process, it offers greater scope for creative resolution than formal proceedings.
When to mediate
The existing 2009 guidance on the use of mediation in the planning system in Scotland suggests that mediation can be used at all stages of the planning process. However, the new guidance focuses on two particular stages where it is thought that mediation may be most effective:
1) Development planning – in the preparation of local development plans
A local development plan (LDP) sets out the policies that are used to assess planning applications within a local authority area, and identifies development opportunities across that area. Each planning authority is required to prepare a development plan scheme (DPS) at least annually, to set out its programme for preparing and reviewing its LDP. Among other things, the DPS must include a “participation statement” setting out when, how and with whom (eg communities, developers) consultation on the LDP will take place.
The Scottish government proposes to amend existing guidance to require planning authorities to specifically consider mediation as part of the consultation strategy in the participation statement. Planning authorities should also have regard to mediation requests made by communities, or by the public at large.
The consultation paper suggests that there may also be scope for local authorities to use mediation when preparing for a development plan examination (DPE). A DPE is an independent examination of any unresolved issues that arise from representations on proposed LDPs. The suggestion is that mediation might help to reduce the number of unresolved issues carried forward into the DPE. Experience with mediation in the context of court disputes supports that suggestion.
2) Development management – in the pre-application consultation process
Pre-application consultation (PAC) involves making local communities aware of, and giving them the chance to comment on, applications for planning permission for large-scale developments. The draft guidance acknowledges that this is an area that could benefit from the use of mediation, particularly in determining the extent of additional consultation activity required from the applicant. The Scottish government has recently completed a separate consultation on amendments to the PAC procedure, and acknowledges that the draft guidance may need to be amended in due course in light of that consultation.
The Scottish government has also committed to consider ways to raise the visibility of mediation in other areas of the reformed planning process over the next few years.
Potential limitations on the use of mediation
The existing 2009 guidance on the use of mediation in the planning system in Scotland acknowledges that mediation cannot ever entirely replace the statutory planning decision-making process. However, can it help with a shift towards a more collaborative system? There are some potential limitations:
- Mediation is a voluntary process – to work properly, it requires parties to want to find a resolution.
- It will be important to avoid mediation becoming a box-ticking exercise, just to comply with the guidance.
- Successful planning mediations will require a skilled mediator, with knowledge of the Scottish planning system. The parties may have little experience of the planning system, and planning can be an emotive topic where parties’ positions become entrenched.
- Scant information is available about the cost of Scottish planning mediation. Costs will, of course, be situation-dependent, but the consultation paper concludes that it is potentially around £500 per party per day (excluding the costs of preparation, venue hire, etc). Experience of mediation in the context of commercial litigation in Scotland suggests that this is potentially a considerable underestimate. The consultation paper surmises that the use of mediation may cause a small increase in overall costs to parties. The benefits of using mediation (and of removing some conflict from the system) are clearly harder to quantify. There is also the issue of who pays, and a concern that increased costs may intensify existing power inequalities.
Final words
This initiative is in its early stages, with much of the detail still to be ironed out. Hopefully, there will be a high level of response to the consultation paper, with constructive feedback taken on board by the Scottish ministers when finalising the guidance.
The success of mediation and other alternative dispute resolution in commercial disputes certainly gives cause for optimism that mediation could play an increasingly useful role in Scotland’s planning system.
Gordon Clark is an associate in planning and Sarah McCormick is a senior associate in dispute resolution at Dentons
