Summary of responses to the consultation exercise: Transport and Works (Scotland) Act 2007 - Secondary Legislation
1. The Scottish Government's Transport directorate carried out a consultation exercise on its proposals for secondary legislation in support of the Transport and Works (Scotland) Act 2007. That Act places the Scottish Ministers at the heart of an order-making procedure for the authorisation of guided transport schemes and the construction and operation of inland waterways.
2. A consultation paper [1] was published on the Scottish Government's website on 4 July 2007 and invited views by 31 August 2007. A wide range of organisations were notified of the consultation exercise. These included all Local Authorities, National Park Authorities, regional transport partnerships, relevant Government agencies, business and community interests as well as legal firms and representative bodies that expressed an interest during the passage of the Transport and Works (Scotland) Act 2007.
3. Section 10(5) of the Act [2] requires the Scottish Ministers prior to making rules to regulate the procedure at inquiries or hearings conducted under the Act to consult the Council on Tribunals and for that council to consult its Scottish Committee.
4. A total of 19 responses were received to the consultation, details of respondents are given in the Annex.
5. The Scottish Government is grateful to all those who responded to the proposals within the consultation. The intention is to analyse the comments, consider where appropriate those comments with respondents and then to bring forward later this autumn specific legislative proposals.
6. In line with the Scottish Government's policy of openness, copies of the responses received are made publicly available on the Scottish Government's website and at the Scottish Government Library, Spur K, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD.
Summary
7. A summary of the main comments to the consultation is set out below; this follows the sequence in which comments were invited to the consultation paper. The responses to the draft Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2007 and draft Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2007 have been amalgamated.
Frazer Henderson
24 September 2007
Draft of Transport and Works ( Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007
Question A1. Are the consultees mentioned under rule 8(2)(e) with whom applicants are expected to consult appropriate and comprehensive? Are there any bodies that should be added to or deleted from Schedules 3 and 4?
Two respondents noted the mix of statutory and non-statutory bodies and queried, particularly in respect of the latter, the rationale for inclusion. Other responses suggested the inclusion as consultees, in specified circumstances, Scottish Enterprise, VisitScotland, Sport Scotland, British Transport Police Authority, Civil Aviation Authority, Secretary of State for Defence and NATS Holdings Ltd.
Other respondents suggested the inclusion of operators or promoters of any railway not forming part of the Network Rail network or of any tramway or proposed tramway. In respect of the coverage of works it was suggested that reference should be made to works affecting land as shown on a safeguarding map; works within a public safety zone; works which are within an area which has been notified to the planning authority by the Health and Safety Executive; works where the siting or development is such as to increase the risk or consequences of a major accident; and works affecting a bridge, the abutments or approaches to the bridge.
There were also comments that existing consultees, such as for instance SNH, SEPA and regional transport partnerships, should be more widely consulted.
Question A2. In respect of rule 17 we welcome views on the level of fees for applications. In the last Parliament a commitment was given that charitable organisations would not pay a fee greater than the cost of applying for a Private Bill (which is currently £1,250). We would welcome views as to whether the same level of fee for an application should apply to private developers, public developers and charitable concerns. We do not want to set a fee level that will act as a disincentive for people to come forward, nor do we want the fee level to encourage proposals that have not been well thought through and therefore welcome views on the appropriate level or levels of fees for the various classes of applicants.
Nine respondents offered a view. Four respondents questioned the appropriateness of charging charitable concerns. Another advised that heritage railway companies were in the main limited by guarantee or by shares and therefore would not be caught within the envelope of charitable concerns. Other suggestions included: adopting a fee structure that charged private developers according to the size of the proposed development whilst charging public bodies a standard fee; charging a higher fee for developments requesting compulsory purchase powers and a lower fee for those where compulsory purchase powers were not sought; establishing two fee structures, one for charities and one for other organisations, with charges on a sliding scale related to the size and scope of the proposed development; and having a single flat fee applicable to all applicants.
Question A3. Are there any inconsistencies or unintended consequences in the rules as drafted ?
Four respondents expressed concern that the rules by providing the Scottish Ministers with the power to consult any charitable body promoting environmental protection afford special interest and lobby groups with the status of a statutory consultee. The respondents also commented that since the charitable bodies are not required to provide information there may not be a level playing field in that applicants have to show their hands whilst recipients of information do not. These respondents also expressed concern on issues of confidentiality and suggested that an applicant could obtain information from a body under rule 4(1) and use it for purposes unconnected with an application or indeed disclose the information to another party.
Two respondents noted that there is no requirement to notify proprietors of adjoining land of works and questioned this apparent omission.
One respondent suggested that it would be helpful to provide other documents at the pre-application stage in order to expedite the subsequent application. The respondent also requested greater explanation of the nature and extent of enquiries that would satisfy the requirement in the rules to make diligent enquiries.
One respondent requested greater use of the internet for publicity and another requested the provision of three copies of information at nil cost rather than a single copy as designated under Rule 11(5).
One respondent advised that the Scottish Ministers needed an express power to require whatever information is needed on those aspects of a proposal that are likely to cause significant impacts to the environment.
Question A4. What further legislative action, if any, should be taken to facilitate the effective operation of the proposed applications and objections procedure ? What opportunities exist, for example, to shorten time frames or remove activities that may be perceived as redundant ?
Four respondents commented that there was no express provision placing a duty on applicants and objectors to resolve objections. The respondents also requested a requirement to be placed on the Scottish Ministers when making a direction under rule 16 (Waiver of requirements in relation to applications) to publish their direction and a requirement on applicants to state their reasons for a request for a waiver.
Three respondents commented that the timescales could not be shortened beyond that included in the draft legislation.
One respondent requested a more robust environmental statement at rule 3 in order to improve efficiency of process and the effectiveness of early engagement.
Other comments
One respondent suggested that a formal review of operations authorised by the order should be undertaken two years after the commencement of those operations.
Draft of The Transport and Works ( Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007
Question B1. Are there any further efficiencies that could be met in terms of the timing of pre-inquiry activities without causing problems for participants ?
Two respondents enquired whether it was realistic or necessary to serve upon the Scottish Ministers and others a copy of every document at the same time as the submission of statement of case and referenced the current planning inquiry procedure whereby the statement of case is submitted prior to planning inquiry documentation, which is submitted 4 weeks prior to the start of the inquiry.
One respondent advised that the timing of pre-inquiry activities could not reasonably be reduced further without prejudicing interested parties.
Question B2 . Do respondents agree that there is still reasonable opportunity for all interested parties to make relevant contributions at an inquiry or hearing?
Eight respondents agreed that there was sufficient opportunity for all interested parties to make a contribution. Four of those respondents requested that the reporter should only refuse cross examination where there are timescale problems or where on a reasonable judgement no further relevant information is to be obtained. One of the respondents requested an ability for interested parties to add to the reporter's agenda for the inquiry or hearing.
Question B3 . Should the requirement for a statement of case be retained despite its potential to be a rephrasing of the original representation ?
Five respondents stated that the requirement for a statement of case should be retained on the basis the actual hearing or inquiry process would otherwise take significantly longer to examine all material and evidence. One of those respondents suggested that clear guidance on the content of a statement of case should be provided to parties.
One respondent stated that there was no requirement for a statement of case.
Question B4 . Are there any inconsistencies or unintended consequences in the rules as drafted ?
Four respondents requested the Scottish Ministers to be required to advertise the decision to hold an inquiry or hearing and provide an address for notification to the Scottish Ministers of an intention or wish to appear.
One respondent raised issues relating to unaccompanied site access by the reporter.
Question B5 . What further legislative action, if any, should be taken to facilitate the effective running of inquiries and hearings ?
Two respondents noted that there was no exclusive reference to the ability for a party to be represented at an inquiry or hearing.
One respondent raised issues regarding the length of the summary of the precognition, the timing of closing submissions, the award of expenses in circumstances where a party has acted unreasonable, the definition of a Hearing Statement and the need for a greater level of prescription in terms of reference to a hearing.
Four respondents noted that the provisions do not expressly deal with transmission by electronic means.
Other comments
None noted.
Draft of The Transport and Works ( Scotland) Act 2007 (consents under other enactments) Regulations 2007
Question C1. Are the consents as listed appropriate? Are there any other consent regimes that could be usefully incorporated within the regulations?
Respondents suggested that consents under other regimes such as tree-felling, stopping-up road orders, licences under the Food and Environment Protection Act 1985 and the Nature Conservation (Scotland) Act 2004 as well as licences in respect of waste management could be considered for incorporation within the regulations.
Question C2. Are there any inconsistencies or unintended consequences in the regulations as drafted ?
No substantive comments were received.
Other comments
No substantive comments were received.
Draft of The Transport and Works ( Scotland) Act 2007 (Access to Land on Application) Order 2007 & Draft of the Transport and Works ( Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2007
Question D1. Does article 5 of the legislation request appropriate information? Is there too little or too much relevant information and if so what could usefully be dispensed with or be additionally required ?
Four respondents requested greater clarity on the nature and type of liability insurance required. Those respondents also requested that applicants should be required to submit a statement with their application as to why entry to the land could not be delayed until the granting of the proposed order.
Question D2/E1. Do consultees agree that the notices contained within Forms 1 and 2 provide all pertinent information in sufficient clarity as to be understandable by recipients?
Two respondents suggested that Forms 1 and 2 should make reference to a plan.
Question D3/E2 . Are there any inconsistencies or unintended consequences in the order as drafted ?
Two respondents questioned the definition of land and suggested that it should include land covered in water and buildings. Three respondents also noted that there was no timescale provided in relation to the consideration of an application and suggested that one might be appropriate given that there might be time-sensitive and seasonal issues for the applicant with regard to preparing an environmental statement.
One respondent suggested that consideration should be given to a written procedure rather than the holding of a hearing in order to assess representations and thereby expedite the decision-making process.
Question D4. What further legislative action, if any, should be taken to facilitate the effective operation of the proposed procedure ?
Four respondents suggested that within the non-exhaustive list of the conditions and limitations that the Scottish Ministers may attach to an authorisation (Article 8(4)) there ought to be provisions on site security, commercial confidentiality and non disclosure, in certain circumstances, as well as a requirement for copies of all data, on factual and interpretative reports arising from the site investigations, to be given to the owner or their representative.
Question D5. What further legislative action, if any, should be taken to ensure that the reasons for requesting access are not merely speculative or for purposes unconnected with investigating a proposed transport development ?
Four respondents suggested the incorporation of a test, before an access to land application could be approved, which would seek to establish that the applicant's project, which would be subject to an authorisation made under the Transport and Works (Scotland) Act 2007, had a realistic chance of being implemented.
One respondent advised that no further provisions would be necessary since any applicant knowingly falsifying information in support of an application would be committing a criminal offence and therefore subject to prosecution.
Another respondent suggested including in the provisions a requirement for the applicant to provide details of the existence of national and/or local planning policy support in order to demonstrate that their request was not speculative.
Other comments
One respondent noted that on being granted access an applicant could undertake potentially intrusive and damaging operations, such as boreholes, and that there needed to be appropriate safeguards in place to address any impacts on environmentally sensitive sites.
Another respondent requested that, in addition to the relevant local authority and any relevant National Park authority, the relevant regional transport partnership should be served with copies of representations and notices at the same time as those bodies.
One respondent raised a number of concerns about the nature and intention of the conditions and limitations which the Scottish Ministers may attach to an authorisation.
Annex
Respondents to the consultation
Aberdeenshire Council
Mr Neil Amner
British Railways Board (Residuary) Limited
British Transport Police Authority
British Transport Police Force
Environmental Resources Management
Heritage Railway Association
Inland Waterways Advisory Council
Network Rail
Northern Lighthouse Board
RSPB Scotland
Scottish Committee of the Council on Tribunals
Scottish Environment Protection Agency
Scottish Natural Heritage
South Ayrshire Council
South Lanarkshire Council
Tayside and Central Scotland Transport Partnership
The Law Society of Scotland
and one respondent who wished their response not to be made public.
[1]http://www.scotland.gov.uk/Publications/2007/07/consultation
[2]http://www.opsi.gov.uk/legislation/scotland/acts2007/20070008.htm