- Have we got the range of areas to which the mediation guidance should cover right?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
RTPI Scotland would wish to see within the range of areas in the guidance covered, a stronger emphasis placed on the value of informal mediation and effective negotiation skills as a range of potential dispute resolution methods planners can utilise. RTPI Scotland does recognise the potential value of formal mediation in some specific parts of planning system such as Pre-Application Consultations. RTPI Scotland backs the continued policy support and reference to the use of mediation as a potential dispute resolution method when considering compensation for land which is compulsorily purchased. We believe that the exploration of mediation in specific types of appeals could be included such as enforcement notices and core paths allowing the DPEA the option to appoint an independent mediator. There may also be a role for formal and informal mediation as an extension of engagement techniques to support Local Place Plans and in resolving Section 75 agreement terms. However, RTPI Scotland would point to the analysis of consultation responses from the Planning Review in (2017), where there was not overwhelming support for the use of formal mediation. RTPI Scotland in particular does not see a clear means by which formal mediation could be realistically undertaken within development planning, reflecting the views expressed from the Scottish Mediation/ PAS survey discussed in the draft guidance under paragraph 27 where it was established that there had been “… no clear call for mediation in any specific areas under development planning”. See answers to Q4, Q5, Q6 and Q7 for a more detailed response considering this area. Any guidance needs to make clear that the planner’s role in the process is by definition impartial and that formal mediation is the involvement of an external, impartial mediator.
- Do you agree with the suggestion to maintain policy support for the use of mediation in National Planning Framework 4?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
RTPI Scotland agree with the continued policy support which proposes the use of mediation, as one of a range of means of dispute resolution techniques, rather than requiring its use and, as set in the definition of mediation in the 2019 Act.
- Please tell us about your experience of using mediation including any financial / non-financial costs incurred. Please set out also how any costs were shared between the parties.
RTPI Scotland would like to raise concerns over the resources implications of the draft guidance. In terms of context planning departments across Scotland have suffered disproportionately from budget cuts:
- only 0.34% of net revenue budgets in local authorities were spent on development management and development planning. This is reduction from 0.63% in 2015.
- planning authorities’ budgets have diminished in real terms by 40.8% since 2009
- planning services have suffered from the highest cuts of any local government service by a margin of 10%.
- there has been a 25.7% cut in staff in local authority planning departments since 2009
- planning application fees currently only meet 66% of development management costs
Added to these cuts 49 new and unfunded additional duties, of which mediation is one, have been placed on planning authorities by the Planning (Scotland) Act 2019 and the cost of implementing these could be between £12.1M and £59.1M over a ten year period.
RTPI Scotland wishes to challenge some of the assumptions made in the Business and Regulatory Impact Assessment (BRIA) accompanying the consultation paper, particularly the assumptions made around local development plan preparation. The admission that there are no figures available which allow any certainty how many mediation events will support the preparation of local development plans brings in a wider point about mediation as an untested process in local development plan preparation, which will be dealt with later on in the response. Proposals in the draft guidance to use formal mediation in four parts of the local development plan preparation process need to be looked in the context that LDPs often receive thousands of representations and often carry forward hundreds of unresolved issues, even when grouped as prescribed in Regulation 20 and Schedule 4 of the Town and Country (Development Planning) (Scotland) Regulations 2008 prior to examination. This means that significantly more than 3 – 5 events are likely to occur and that these will likely be larger group events. The costs need to consider the provision of an appropriate venue, preparation time, advertisement and representation by legal or other advisers and the fee of multiple mediators often necessary where there are complex issues or several parties engaged[1]. As discussed in the Scottish Governments (2009) guidance the costs of mediation engagement will vary depending on the “…duration, location, preparation required, the seniority, professional affiliation and experience of the mediator, the number of parties and the complexity of matters under discussion.” Furthermore it acknowledges that often lack of planning knowledge may need addressed by “…appointing someone knowledgeable in planning to assist an experienced mediator.” With LDPs covering some of the most significant, contentious and complex planning issues it is likely that the real cost of mediation events to inform the local development plan will be significantly higher for planning authorities, developers and communities than estimates provided. Although there may be potential savings at development plan examination stage if a number of unresolved matters are removed, it should be stressed that as recognised in the draft guidance the overall cost effectiveness of mediation elsewhere is also unclear[2].
RTPI Scotland would also like to reiterate concerns expressed in the guidance over lack of clarity of funding. The Scottish Mediation/ PAS paper noted that respondents to its survey suggested a range of different funding options for mediation, many of which were a mixed model with part national, local and developer funding. However if communities or individuals are to contribute towards costs and all parties in a mediation process are to fund the process equally this might empower affluent communities to engage in mediation and the planning system to greater effect, exaggerating existing social inequalities. This may run counter to the new purpose of planning “to manage the development and use of land in the long term public interest”.
- 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?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
RTPI Scotland supports planning officers using informal mediation-type skills in all areas of planning work and we believe that they generally have the skills to do this. RTPI Scotland however does not see a clear means by which formal mediation could be realistically undertaken within development planning. Whilst the intent to frontload engagement in the planning process is supported, this needs balanced against potentially high costs, a complex array of stakeholders concerned over a wide range of issues and unintended consequences in terms of increasing inequalities referred to Q3. RTPI Scotland would like to highlight the lack demonstration that formal mediation can meaningfully support the production of any spatial plan, with none of the case studies previously undertaken in Scottish Governments 2009 guidance on mediation dealing with this area.
Furthermore, in Scottish Governments 2009 guidance it advises that mediation should not be used where “…there are significant issues of public interest which need to be resolved in a formal manner”. With the purpose of development planning in the Planning (Scotland) Act 2019 defined as to “…manage the development and use of land in the long term public interest” and many existing engagement processes in the LDP preparation underpinned by principles of openness and transparency, RTPI Scotland is concerned that this important aspect of the planning system will be undermined by formal mediation. It is also unclear how proposals will fit in with Freedom of Information legislation. RTPI Scotland agree that there is limited opportunity for conflict and therefore a limited role for mediation in sections 20B (4)(a) and (b). Furthermore, the need to update the Development Plan Scheme annually could make this particularly resource intensive and onerous.
- 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?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
See Q5.
- Do you agree that the Scottish Government should further investigate the potential role of mediation at the gatecheck stage?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
Notwithstanding the points set out in response to Q4, RTPI Scotland is uncertain that mediation at the gatecheck stage will significantly reduce the amount unresolved representations carried through to the examination stage. It is not inconceivable that a considerable amount of objectors will utilise all possible opportunities to submit objections and have their arguments heard. RTPI Scotland agrees that the evidence report and gatecheck stage needs to transparent to receive full scrutiny at this early stage. To achieve this, the gatecheck should be undertaken in public where supporters, objectors, the community and those with development interests can have their say in front of the Reporter. RTPI Scotland is concerned that formal mediation will not provide such transparency. In any event, with gatechecks proposed to be chaired by the Directorate for Planning and Environmental Appeals (DPEA), the DPEA reporter should be tasked with appointing an independent mediator if they see it fit.
- 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?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
RTPI Scotland recognise the value of independent scrutiny and arbitration at this stage and the proposed gatecheck stage can add to the LDP preparation process. Similarly with Q6 RTPI Scotland is unclear whether mediation at this stage in the process is likely to reduce the number of issues carried forward into the development plan examination. The on-going cost of plan examination in terms of time and resources for planning authorities to support this process is high, RTPI Scotland is concerned that formal mediation is likely to increase the costs and time of this stage.
- 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 Pre-Application Consultation?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
As discussed throughout this response, RTPI Scotland supports planning officers to use informal mediation-type skills in all areas of planning work, but would highlight this skill as acutely important for development management officers processing applications. Pre-application discussions are an important part of the development management process providing early engagement of prospective applicants, the planning authority, statutory consultees and local communities in advance of the submission of a formal application.
RTPI Scotland does recognise the potential value of some voluntary formal mediation at Pre-Application Consultations (PACs) as a means of enhanced engagement at the beginning of the application process. However the issue of reduced transparency in the planning process resulting from formal mediation may be encountered here too. This needs to be seen in light of other changes proposed to PAC process especially with recent proposals from Scottish Government to make the PAC process a more consistent and transparent when it comes to reporting[3]. RTPI Scotland has fully supported this approach and feels that PAC procedures must be made more open, transparent and become an integral part of the wider programme for local community engagement. It has to be an integrated approach and done that gives confidence to the local community that their ideas and suggestions are being listened to and implemented where possible and practical
Therefore any formal mediation will need conducted all or mostly in public, with parties agreeing to the publication of the outcome of mediation and the reason(s) underpinning that outcome to inform the decision-making process. This might necessitate the drafting of an agreed statement of reasons, recommendations or a description of the process, for information to be used by, planners, statutory bodies, the public, press and others. Freedom of Information legislation should also be taken into account in drafting an agreement to mediate and in considering to what extent written documentation used or created in mediation may be recoverable at a later date. In the PAC process developers should ensure that appropriate and proportionate steps are taken to engage with communities when development proposals are being formed. Therefore RTPI Scotland believes that in terms of funding, the process of formal mediation should be an option for developers who wish to add more weight to the PAC process, with the aim of securing fuller community buy-in to proposals and a smoother passage through the consenting process. In order to ensure that full consideration is made to the contended planning issues formal mediation should be structured to include a number of parties, including communities, applicants, planning officers and statutory consultees.
- Do you agree with the proposal that the Scottish Government should provide guidance encouraging the use of mediation between parties in Pre-Application Consultation?
Yes/No/No view
Please comment on your answer (particularly if you do not agree)
See answer to Q8
- Please give us any views you have on the content of these partial assessments.
See answer to Q3 for comments on the BRIA.
In regards to the Partial Equality and Child Rights and Wellbeing Impact Assessments, RTPI Scotland is not clear how mediation will result in better inclusion of children and young persons in the planning system.
As discussed in Q3 there is also concern that, depending on funding arrangement, formal mediation has the potential to exacerbate existing resource and power inequalities within the planning system.
- Do you have or can you direct us to any information that would assist in finalising these assessments?
No comment
- Please give us your views on the Island Communities Impact, the Fairer Scotland Duty and Strategic Environmental Assessment screening documents and our conclusion that full assessments are not required.
No comment
- If you consider that full assessments are required, please suggest any information sources that could help inform these assessments?
No comment
[1] Scottish Government (2009) A Guide to the Use of Mediation in the Planning System in Scotland
[2] https://www.gov.scot/publications/international-evidence-review-mediation-civil-justice/pages/5/
[3] https://www.gov.scot/publications/proposed-changes-pre-application-consultation-requirements-planning-consultation/
