Mediation in planning – a look over the border

Simon Barnes provides insight into the benefits of resolving planning disputes with mediation and looks into what England can learn from the Scottish system.

The benefits of resolving disputes through mediation are well known and include speed, flexibility, cost, confidentiality and the ability to preserve relationships. It is perhaps surprising, therefore, that mediation is not more prevalent in that most controversial of areas: planning.

However, as a statement about the UK, that is only partially correct. This is because in Scotland, mediation is baked into the fabric of the planning system by both law and government guidance. So, what might the English planning system learn from the Scottish system?

The first step is to consider how the Scottish planning system has gone about incorporating mediation.

The starting point is Section 40 of the Planning (Scotland) Act 2019. This inserted into the Town and Country Planning (Scotland) Act 1997 a new section 268A entitled ‘Promotion and use of mediation etc’. In summary, this states that the Scottish Ministers may issue guidance for the promotion and use of mediation in relation to:

• the preparation of local development plans
• a prospective applicant's compliance with any requirements in respect of pre-application consultation
• assisting in the determination of an application for planning permission
• any other matter related to planning that they consider appropriate

The guidance may include provision about the form of mediation that is to be used and the procedure to be followed in any such mediation.

Perhaps most importantly, sub-section (3) states that local authorities “must have regard to any guidance issued”. Whilst this is a general and over-arching statutory duty, it is nevertheless a legal requirement, so there is at least the potential for legal challenge if authorities do not comply. The duty to ‘have regard’ is not insignificant and can be very powerful. For example, in the well-known case of R (on the application of Morge) v Hampshire County Council [2011] UKSC 2 the Supreme Court had to grapple with the issue of how a local planning authority should properly ‘have regard’ to the requirements of the Habitats Directive.

The statutory duty to have regard to guidance becomes even more important when one goes on to examine the guidance itself which is contained in Circular 2/2021 entitled “Guidance on the promotion and use of mediation in the Scottish Planning System”.

The Circular acknowledges that “there is no legislative requirement for the use of mediation in the Scottish planning system” and states that “[t]he guidance is aimed at promoting the use of mediation rather than requiring its use…” The Circular distinguishes between ‘mediation’ “involving an impartial person that the Scottish Ministers consider appropriate” and ‘informal mediation’ which means “…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.”

Whilst one might expect to see mediation used to resolve common disputes in planning such as an objection to a development proposal or a planning enforcement issue, the Circular goes much further than that.

In relation to plan making and the preparation by local planning authorities of their Development Plan Scheme (which sets out the authority's programme for preparing and reviewing their Local Development Plan) the Circular encourages local planning authorities to consider using mediation or informal mediation during the consultation process, for example, where a proposal or site in the emerging LDP has attracted community opposition which cannot be readily resolved.

The Circular also advocates the use of mediation in plan preparation by identifying at an early stage locally contentious issues or sites and using mediation to resolve areas of controversy before publication of the proposed plan.

There are a number of potential benefits to applying mediation to planning in the way advocated in the Circular.

An obvious one is that specific contentious issues are resolved, ideally at an early stage in the process. However, it is suggested that structured mediation involving an impartial third party could also deliver valuable but less tangible benefits. Even if a mediation fails to produce a comprehensive agreement on a particular issue, the process of facilitated engagement may be beneficial in its own right by improving trust and fostering more positive relationships between communities, developers and planning authorities as each side gains a better understanding of the other’s position. Parties may feel they have been listened to in a meaningful way which they would not gain from simply submitting a response to a consultation. This in turn may make the planning process less adversarial and move away from the tradition of planning ‘winners’ and ‘losers’.

It may also be that useful partial solutions emerge through the mediation process which improve matters even if they do not completely resolve a fundamental issue. For example, ways in which the impact of a development proposal upon a community could be mitigated even if an ‘in principle’ objection remains unresolved. The Circular recognises the benefits of using mediation as a method of encouraging dialogue between the parties or with communities. It is suggested that mediation might be particularly attractive for planning disputes involving third party objectors to overcome any feelings of mistrust or hostility towards the planning authority or developers and whose only legal recourse would otherwise be expensive and time-consuming litigation in the High Court.

There are, of course, some potential drawbacks. Mediation is a confidential, without prejudice, process and it might be more difficult for confidentiality to be maintained if mediation is used to engage with multiple parties or a fragmented group of people. Furthermore, even though mediation costs are far lower than in litigation, there is still a financial cost which will need to be borne by somebody. However, these are not insurmountable problems. Mediation is a flexible process which can be tailored to suit individual circumstances and the modest financial costs are likely to be outweighed by the benefits. The Scottish Ministers certainly seem to think so, but it remains to be seen if the Westminster parliament will follow. However, notwithstanding the legal position, there is nothing to prevent planning authorities, developers and interested parties from electing to use mediation at any stage of the planning process, and to take inspiration from the Scottish Circular.  

Simon Barnes is dual qualified as a barrister (practising) and solicitor (non-practising) with the Barrister Group and is based in Somerset.