Annex A: Guidance on The Promotion and Use of Mediation
Draft Guidance on the promotion and use of mediation in the Scottish planning system
This guidance on the promotion and use of mediation in the planning system is issued under powers contained in section 268A of the Town and Country Planning (Scotland) Act 1997, as amended.
There is no legislative requirement for the use of mediation in the Scottish planning system. However, section 268A of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) provides that the Scottish Ministers may prepare guidance on the promotion and use of mediation in the Scottish planning system. The relevant section of the Act is reproduced below.
For the purpose of this guidance, “mediation” is defined in terms of section 268A(7) of the 1997 Act and ‘includes any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Scottish Ministers consider appropriate’. Where the guidance refers to ‘mediation’ planning authorities are to have regard to such guidance, as set out in subsection 268A(3).
Where the term, ‘informal mediation’ is used in this guidance, this relates to situations where planners and other relevant stakeholders take a mediation-style / faciliatory approach in their work in appropriate situations but are not aided by an impartial third person.
Current advice on development planning is contained in Circular 6/2013: Development Planning. This guidance will supplement that contained in the Circular.
Preparation of the Planning Authority Development Plan Scheme
(Questions 4 and 5 of the consultation paper relate)
Section 20B of the amended 1997 Act requires each planning authority to prepare a Development Plan Scheme (DPS) at least annually. The scheme is to set out the authority's programme for preparing and reviewing their Local Development Plan and what is likely to be involved at each stage.
In preparing participation statements under section 20B(4)(c), Scottish Ministers already expect such statements to contain a range of innovative techniques and activities for consulting stakeholders, tailored to local circumstances and the issues being dealt with in the plan.
Scottish Ministers also expect planning authorities to consider what scope there may be for the use of informal mediation and mediation with parties including communities / developers, or any other such party as the planning authority considers appropriate, as the engagement practice evolves throughout the development of the LDP. The planning authority should have regard to any requests for the use of mediation requested by the public at large or communities when preparing its participation statement.
As with other techniques and activities, opportunities for informal mediation and mediation should be tailored to local circumstances and the issues being dealt with in the plan. Any such scope for the use of mediation should be set out in the planning authority’s participation statement. Mediation, for example, may be appropriate in circumstances where a proposal / site in the emerging LDP has attracted community opposition which cannot be readily resolved.
Whilst mediation is generally considered to be a confidential process, parties are encouraged to be open and transparent with the results of any mediation.
Preparing for a Development Plan Examination
(Question 7 of the consultation paper relates)
Development Plan Examinations are intended as the principal means of independently examining any unresolved issues arising from representations on proposed local development plans, examining any unresolved issues raised in representations.
In advance of the Development Plan Examination, the planning authority must prepare a summary of unresolved issues in the manner prescribed in Regulation 20 and Schedule 4 of the Town and Country (Development Planning) (Scotland) Regulations 2008.
Planning authorities should look to resolve differences and build support for proposals through discussion and negotiation, and where possible prior to the publication of the proposed plan.
The approach to the final stages of preparing Local Development Plans will change as a result of the Planning (Scotland) Act 2019 and subsequent regulations and guidance. This aspect of the guidance can be updated to reflect any significant changes to this stage of the guidance as appropriate.
(Questions 8 and 9 of the consultation paper relate)
The Scottish Government wants to encourage improved trust and open, positive working relationships from the earliest stages in the planning process and to provide, where possible, an early opportunity for community views to be reflected in proposals.
Current advice on Pre-Application Consultation and Proposal of Application Notices is contained in Circular 3/2013: Development Management Procedures. This guidance supplements that contained in the Circular.
Proposal of Application Notices
The prospective applicant should indicate in the Proposal of Application Notice what consultation, if any, they will undertake in addition to the statutory minimum.
When preparing its Proposal of Application Notice for any development requiring Pre-Application Consultation, the prospective applicant may want to consider approaching communities to help frame their PAC engagement. As a part of that dialogue, prospective applicants and communities are encouraged to consider whether, in the circumstances of the development proposal and any planning history of the site, informal mediation or mediation may be an appropriate method of encouraging dialogue between the parties.
In instances where the prospective applicant has not approached communities to help frame the PAC, prospective applicants are still encouraged to consider whether, in the circumstances of the development proposal and any planning history of the site, whether informal mediation or mediation may be an appropriate method of encouraging dialogue with communities.
Where mediation is to form part of the prospective applicant’s engagement strategy, this should be recorded in the PAN.
On submission of a Proposal of Application Notice, the planning authority must respond within 21 days of receipt of the notice specifying any additional notification and consultation they wish to see undertaken (including that indicated by the prospective applicant) beyond the statutory minimum, in order to make it binding on the prospective applicant.
On reviewing the PAN, planning authorities should consider whether mediation might be helpful should any points of dispute arise between the prospective applicant and other parties.
In requiring any additional pre-application consultation, planning authorities must have regard to the nature, extent and location of the proposed development and to its likely effects, both at that location and in its vicinity. Additional consultation requirements should be proportionate, specific and reasonable in the circumstances.
The applicant must prepare a report of what has been done during the pre-application phase to comply with the statutory requirements for PAC and any requirements set out in the planning authority's response to the proposal of application notice.
The legislation does not currently specify the content of the report beyond that it should set out what was done to effect compliance with the aforementioned requirements. Current guidance suggests that as a minimum applicants should set out how they have responded to the comments made, including whether and the extent to which the proposals have changed as a result of PAC.
Whilst mediation is generally considered to be a confidential process, parties are encouraged to be open and transparent with the results of any mediation. This should allow for any output from the mediation to be included in the PAC report.
Planning (Scotland) Act 2019: Section 40 Promotion and use of mediation etc.
(1) The Town and Country Planning (Scotland) Act 1997 is amended as follows.
(2) After section 268 insert—
“Promotion and use of mediation etc.
268A Promotion and use of mediation etc.
(1) The Scottish Ministers may issue guidance in relation to the promotion and use of mediation in relation to the following—
(a) the preparation of local development plans and related evidence reports under Part 2,
(b) a prospective applicant’s compliance with any requirements in respect of pre-application consultation imposed under or by virtue of section 35B,
(c) assisting in the determination of an application for planning permission,
(d) any other matter related to planning that they consider appropriate.
(2) Guidance under subsection (1) may include provision about—
(a) the form of mediation that is to be used in a particular circumstance, and
(b) the procedure to be followed in any such mediation.
(3) Local authorities must have regard to any guidance issued under subsection (1).
(4) Before issuing any guidance under subsection (1), the Scottish Ministers must consult—
(a) planning authorities, and
(b) such other persons that the Scottish Ministers consider appropriate.
(5) The Scottish Ministers must make any guidance issued under subsection (1) publicly available.
(6) The power under subsection (1) to issue guidance includes power to—
(a) issue guidance that varies guidance issued under that subsection, and
(b) revoke guidance issued under that subsection.
(7) For the purposes of this section, “mediation” includes any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Scottish Ministers consider appropriate.
(8) The Scottish Ministers must issue guidance under subsection (1) within the period of two years beginning with the date on which the Planning (Scotland) Act 2019 received Royal Assent.