Planning & Environment

Use of mediation in the planning system is a discussion topic again.

Background

Mediation is a familiar tool for resolving commercial disputes – see comments by my colleague Andrew McWhirter.

A guide, issued by the Scottish Government 10 years ago, indicated the potential role for mediation in the planning system, but noted the limitations:

It is important to recognise that mediation cannot replace the statutory planning decision-making process, as any planning application will require to be determined by the appropriate decision-maker. However, mediation may assist in improving the quality of an application, or may serve to resolve or narrow a dispute – and, as such, it has the potential to help the planning process to flow more smoothly and to arrive at better informed and more cost-effective outcomes. Whether mediation will or will not work in a particular matter will depend largely on the willingness, open-mindedness and hard work of those involved to find a resolution.

The Scottish Government supported some pilot projects, but mediation never gained much traction.

Promotion and use of mediation etc

The Planning (Scotland)Act 2019, section 40, states that the Scottish Ministers may issue guidance in relation to the promotion and use of mediation, within 2 years of the Act.

The guidance may include provision about the form of mediation that is to be used in a particular circumstance. The heading of section 40 refers to “mediation etc”, and section 40 states that “mediation” includes:

any means of exploring, resolving or reducing disagreement between persons involving an impartial person that the Scottish Ministers consider appropriate

Use of mediation in planning

The guidance issued under section 40 may relate to any aspect of planning, but there is specific mention of:

  • the preparation of local development plans and related evidence reports
  • pre-application consultation by a prospective applicant for planning permission
  • assisting in the determination of an application for planning permission

The 2009 Guide mentioned the importance of open-mindedness. HOPS are promoting collaboration. To be effective, mediation has to occur early in the planning process before developer/ planning authority/ community positions become entrenched. It is therefore more likely to be useful in plan-making, as an extension of engagement techniques such as charrettes.

As with any new initiative, there will be scepticism to overcome. The use of mediation in commercial disputes shows what can be achieved.

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar