Mediation in Development Management
Planning permission is required for most new building works and significant changes in the use of land or buildings. Minor works are called "permitted development" and do not need a planning application.
Since August 2009, planning applications are classed as national, major or local. All are dealt with in the first instance by local authorities in a process called development management. The term embraces enforcement action when unauthorised development takes place, or conditions are breached.
Mediation or consensus building can be appropriate at any stage in development management.
- As part of pre-application discussions
- When objections have been lodged
- When an appeal has been lodged
- When a review has been requested
- When enforcement action is in prospect
A very brief overview of development management is set out below. In reality, the system is subject to complicated rules at every stage, and expert advice is strongly recommended.
You can get more information from your local authority, the Scottish Government: Planning website.
As part of pre-application discussions
National and major applications will not be accepted unless there has been prior consultation with the local community. Developers, the local authority and potential objectors can discuss proposals with a view to fine-tuning them. Consensus building facilitated by an independent person allows this to happen in a constructive atmosphere, and takes much of the heat out of later stages. The aim would be to agree how the subsequent planning application might be made acceptable to all parties.
When objections have been lodged
Most planning applications don't attract any objections at all. But if they do, this is when feelings can begin to run high. Mediation between developers and objectors avoids direct confrontation, but the local authority may decide not to take part, as it will soon have to determine the application.
The aim is to agree possible changes to the planning application. If these changes are significant, a new application may have to be submitted, and the process starts again. The local authority cannot be bound by any mediated agreement, but will hope to be presented with less controversial proposals.
When an appeal has been lodged
Appeals against national and major decisions, and any local applications determined by the local authority (as opposed to being delegated to an officer) are heard by Reporters of the Directorate for Planning and Environmental Appeals. Planning applications called in by the Scottish Ministers are dealt with in a similar way.
At this stage, the local authority may wish to defend its position, so can choose to become a party to mediation. The Scottish Government Reporter must remain neutral. The aim now is to agree changes that will allow a fresh planning application to be prepared. If that application is subsequently approved, the appeal can be withdrawn.
When a review has been requested
Most local applications will be determined by an officer, under powers delegated by the local authority. There is no appeal against such decisions, but instead the applicant can request a review which will be heard by the local authority's Review Panel.
The officer who took the delegated decision may wish to defend his or her position, so it may be possible for them to become a party to mediation. The local authority's Review Panel must remain neutral.
The aim now is to agree changes. Time is short, but it may be possible to reach a position where the review request can be withdrawn.
When enforcement action is in prospect
When unauthorised development takes place, or conditions are breached, the local authority will consider whether it wishes to take enforcement action. The purpose is not to punish the developer, but to ensure that normal planning standards are upheld.
There is a wide range of tools available to local authorities, culminating in legal action through the Courts. However, most local authorities will always try to negotiate with a developer who has breached control. Whether negotiation succeeds depends on many factors. In some cases, an independent mediator may succeed where direct talks fail.