Deconflicting the planning system

No one would argue against a desire to encourage a collaborative approach and deconflict the planning system.  Indeed, this is a line that the SPF took throughout the passage of the Planning (Scotland) Act 2019 (the 2019 Act).  This was alongside encouraging upfront collaborative working and constructive early engagement, rather than the prospect of polarising opinion, with decisions made by ministers (not local communities) months or even years later.  

We are keen to move away from adversarial planning disputes and agree that the strengthening of the Local Development Plan, and the introduction of Local Place Plans should assist communities in ensuring that their points of view are properly considered early in the process.  These measures will hopefully go a long way to improving public trust in the planning system, and what gets built and where.  

In a move towards greater collaboration provision was made in the 2019 Act for the promotion and use of mediation, with the onus on Scottish Ministers to issue guidance within two years.  A consultation on proposals is now open until 3 March 2021.  The SPF contributed to the early debate supporting collaborative forms of planning, especially in relation to the development plan process.  We continue to be of the view that mediation should be used as early in the planning process as possible.  

The provision is quite wide ranging, and the guidance to be issued by Scottish Ministers may include guidance relating to the preparation of LDPs and Evidence Reports; pre-application consultation with local communities; assisting determination of planning applications; and any other matter considered appropriate. The 2019 Act is also clear that ‘mediation’ includes any means of exploring, resolving, or reducing disagreement between persons involving an impartial person.  However, it is critical to the process that the introduction of mediation should not be interpreted as intervention in a ‘dispute’ to resolve it, or arbitration.     

To make mediation work effectively clear, guidance on the process in the planning system will be key, including adequate controls particularly around timing.  It will need to be clear that people who have made representations should only be permitted one shot at it, to avoid unacceptable delays.  What absolutely should not happen, is entry into mediation at the local development plan stage and again at application stage, unless there is a demonstrable deviation from the plan.    

The guidance also needs to be clear that it should not be possible to enter into mediation on a specific project on the grounds of environmental impact, for example, and then separately undergo the process to examine the impact on infrastructure, schools etc.   

A major concern in the early debate was that mediation may include assisting determination of planning applications.  It is a fundamental tenet of the planning system that the determination of planning applications should be for democratically elected planning committees to consider, on the advice of officials and evidence put before them.  Mediation is simply a process of addressing concerns and not an adjudication procedure itself.   It should be made clear that mediation cannot, and should not, be legally binding in these circumstances.