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4. Outline of Proposal

4.1 At its meeting on 26 October 2004 the Procedures committee agreed in principle to a suggestion by the Minister for Parliamentary Business that Executive and Parliamentary officials should consider in detail various options for change. On 9 November 2004 the committee agreed the remit for the work. Officials produced a report for the committee's meeting of 21 December which provided an assessment, against a range of criteria, of three possible models for a future statutory system for handling applications.

4.2 The committee asked for more detail on how one of the models, the TWA-plus model, might operate. The TWA-plus model is based on the Transport & Works Act 1992, the system used in England & Wales for railway, tram, guided busways and inland waterway developments. The committee therefore charged officials to investigate further and produce a second report.

4.3 It is the recommendations within that second report ⁴ that form the basis for consultation.

4.4 In essence the recommendations seek to replace the Private Bill process with one that places the Scottish Ministers at the centre of an order-making process with Parliamentary approval expressly required at more than one point in the process.

4.5 The process as proposed by the Procedures committee is, in outline, that:

• The promoter of a development formally notifies all affected persons of the proposal and applies to the Scottish Ministers for an order;
• Once the Scottish Ministers are notified by the promoter, objectors have a designated time period to raise concerns;
• The Scottish Ministers, once the objection period ceases, then decide whether, a) the application is correct in procedural terms and, b) taking account of objections, fulfils the public interest and other criteria;
• If the Scottish Ministers decide in favour, an Order is laid before the Scottish Parliament;
• The Scottish Parliament considers the Order and agrees by resolution to enable the application to proceed to detailed scrutiny;
• The Scottish Ministers appoint an independent reporter to conduct an inquiry or hearing (to be known as an examination) which will conclude with the reporter producing recommendations within a formal report;
• The Scottish Ministers decide to accept, modify or reject the reporter's recommendations; and
• The Scottish Ministers make a final Order for Parliamentary approval.

4.6 A schematic of the Procedures committee's proposed process is produced below.

4.7 The Scottish Executive has considered the scope of these proposals. Our initial thoughts were that the scope should be limited to railway, tram, guided busways, and inland waterway (canal) developments.

4.8 We also considered whether the construction of motorways and major trunk road schemes should be included within scope. We concluded that the procedure for ministerial approval of orders under the Roads (Scotland) Act 1984 had operated successfully over a number of years, was well understood, and in its appropriate use of public inquiries, provided ample opportunity for the interests of all parties to be heard and considered. However, we acknowledge that the creation of certain trunk roads are of such national significance that there ought to be an opportunity for Parliament to provide the final approval.

4.9 Further consideration has suggested that there might be merit, for reasons of conformity, in making nationally significant harbour developments subject to Parliamentary approval. Whilst we acknowledge that there is not an impetus to change the existing process in respect of harbours there may, however, at a later date, be a case for seeking conformity of the various statutory regimes for authorising all transport related developments. Our priority at the moment is to replace the private bill procedures.

Q1 Are there any other transport works beyond rail, tram, guided busways and inland waterway developments that should be within scope and if so why?

4.10 In the following sections we discuss each of the stages in the process proposed by Parliament's Procedures committee and invite views on particular matters that are raised.

Step 1- Application

4.11 We expect the promoter, after having developed proposals, to consult the planning authority and other statutory and non-statutory bodies with relevant interests and expertise.

4.12 We believe the promoter must ensure that the proposals are well publicised. We expect notification to be placed, for instance, in all local and regional papers as well as libraries and on the internet so that the wider local community is aware of the proposals.

4.13 It is imperative that the promoter advises those that are to be directly affected by the development. This is likely to include those whose land or buildings may be subject to a compulsory purchase order as well as those that might be affected by noise or visual intrusion during the construction phase.

4.14 We are keen to ensure, in line with the new statutory requirements for pre-application consultations that are proposed within the Planning White Paper ⁵, that statutory bodies such as Scottish Environment Protection Agency ( SEPA), Scottish Natural Heritage ( SNH), Historic Scotland ( HS) as well as local authorities, strategic development planning authorities, Regional Transport Partnerships and, where appropriate, National Park Authorities are advised of any proposed development and that these bodies should be formally contacted whether or not their interests are directly affected. That we believe would permit proper, considered identification and assessment of the impacts, particularly on the natural and built heritage.

4.15 We are also keen that promoters are receptive to the approaches for consultation and engagement by interested local non-statutory organisations (such as for instance membership-based charities or community groups).

4.16 We are proposing that there should be a minimum defined time-period of 6 months between the promoter formally notifying their intentions to affected parties (and statutory bodies) and making an application to the Scottish Ministers. We welcome views of the length of that time period.

Q2 What reasons exist for lengthening or indeed shortening the 6 month minimum designated statutory pre-application period between the promoter publicising initial proposals and presenting an application for an Order to the Scottish Ministers?

4.17 In having a minimum time-period we should ensure that there is sufficient time for the promoter to undertake consultation and provide an appropriate level of publicity prior to the application being made. We believe that the promoter should attempt to take account of all relevant concerns raised by affected parties or statutory bodies and to resolve as many issues as possible prior to making an application.

4.18 Clearly it is important that a promoter will have the necessary financial resources to meet all statutory and other liabilities arising from the promotion of the application. These resources would include the planning, construction and operational costs of the project as well as the payment of any compensation for compulsory purchases. We are therefore keen to ensure that promoters have the necessary financial skills and funding support in place to take forward their proposal. Though we appreciate that promoters will not necessarily have secured funds in advance of an Order being made they will need to be able to convince the Scottish Ministers that there is a reasonable prospect of obtaining funds. The financial viability of any promoter is a key consideration especially if the project is reliant on substantial public contribution.

4.19 Where potential promoters do not have a statutory right to enter land, for the purposes of conducting preliminary surveys and assessments relating to the proposals, we are keen to develop a process that would make this possible. We are considering whether a promoter without a statutory right to enter land could obtain a certificate of fitness issued either by the Scottish Ministers or the local planning authority, which would have to be produced by the promoter on application to enter land. The issue of the certificate could be conditional on the promoter having appropriate liability insurance and a reasonable prospect of delivering their proposal based on either past experience and/or financial support. Ideally, we would like the promoter and landowner to agree on a mutually convenient time for the promoter to enter the land. If an agreement could not be reached between the promoter and landowner, we would expect the Scottish Ministers to consider the issue and make a determination. We welcome views on this approach.

Q3 What process should apply to enable a promoter, without a statutory right, to enter land to conduct preliminary investigations?

4.20 We recognise, of course, that safeguards would need to be in place to prevent speculative access by promoters and to compensate landowners for any damage and disturbance.

4.21 Once all pre-application activities have been conducted appropriately, we expect the promoter to make an application for an Order to the Scottish Ministers.

4.22 We believe that the promoter's application should contain at a minimum the following:

• a draft of the Order sought;
• explanatory notes to the Order;
• a memorandum setting out the policy objectives of the proposals including any alternative approaches considered and the reasons for rejecting these;
• a statement detailing the arrangements made by the promoter in relation to the notification, discussion or consultation, advertising and distribution of the proposals;
• an estimate of expense and a funding statement detailing the cost of the proposals and the (likely) sources of the funding ;
• maps, plans and sections of the proposed works to establish who might be affected by any compulsory acquisition;
• details of any consents that are required to implement the proposal; and
• an environmental statement.

Q4 What documentation should be supplied by the promoter in support of the application? Is there sufficient information contained within the proposals?

4.23 We assume that in making an application for the Order the promoter is also applying to the Minister to grant deemed planning permission. In laymen's terms this means that the promoter receives the outline planning permission for the proposal. However, some elements such as the final design of a train station are likely to require detailed planning permission from the planning authority.

Step 2 - Objections

4.24 Once the promoter has formally notified the Scottish Executive of their intentions and has supplied the necessary supporting documentation, the Scottish Executive, subject to confirmation that there is sufficient appropriate information to enable other parties to form a judgement, will acknowledge the application and announce the commencement of a specified period within which individuals and bodies whose interests would be affected by the proposals may raise formal objections.

4.25 We believe that objectors must have sufficient time to raise their objections. The Private Bill process currently allows a 60 days period for raising objections. The period for road developments is 42 days. We welcome views on the objection time period.

Q5 What are the implications of reducing the time period for objections from 60 to 42 days?

4.26 We expect proposals to be well-prepared and the information contained in them to be complete at the point of submission for scrutiny and confirmation. Exceptionally, it may be necessary to provide extra information, but only in response to circumstances that could not have been foreseen at the outset. We are proposing that in cases where a promoter, exceptionally, provides additional information during the period for raising objections and that information could reasonably be expected to raise more objections or to require reconsideration of objections already submitted, then the time period should be extended. The date on which the promoter provides that additional information becomes the date on which a revised objection period commences.

Step 3 - Initial Ministerial decision

4.27 Once the objection period has commenced the Procedures committee suggest that the Scottish Ministers will undertake a provisional assessment of the application to determine, firstly, whether the application complies with the defined procedural considerations and secondly, whether the Order sought satisfies specified criteria.

4.28 It is proposed for reasons of maximising process efficiency, that this stage as far as possible operates simultaneously with the objection period. In doing so we seek to minimise the time delay between application and the decision of its merits.

4.29 The Procedures committee also suggested that the specified criteria might include:

• compliance with environmental legislation;
• compliance with other statutory requirements for development;
• financial viability; and
• the public interest.

4.30 It is likely that a number of the applications will be strategically important transport links and facilities which are likely to be contained within the National Planning Framework ( NPF) which itself may be drawn from the Scottish Executive's Infrastructure Investment Plan or other policy reviews such as the National Transport Strategy. In short, we expect that many proposals contained within applications for orders to be schemes that have been previously considered at a strategic level.

4.31 We expect compliance with other statutory requirements for development (such as, for example, accessible buildings and environments) and that all applications will make reference to, or be consistent with national, regional or local transport and planning policies. The application, of course, may be assessed against these plans and policies as well as compliance with statutory requirements for development.

4.32 The financial viability test is to ensure that the promoter has secured, or has a reasonable prospect of securing, the funding necessary to enable the project to be completed and operated. The test should also assess the promoter's financial management capability.

4.33 The final criterion for determination is whether the proposal is in the public interest. The Procedures committee has suggested that it is likely that the Scottish Ministers will need to form a view and be able to express that view to Parliament. The committee, furthermore acknowledged that any judgement of public interest must be expressed as an initial view for it cannot be seen to be prejudicial to the views of objectors or the conclusions of any subsequent examination.

4.34 The Scottish Ministers can form a view in the light of prevailing Scottish Executive transport policies as to the merit of the application. Certain proposals by inclusion within the National Planning Framework will already have been considered to be in the public interest.

4.35 The Scottish Ministers must reject an application if, in the Scottish Ministers' opinion, that application has substantially breached the procedural conditions (e.g. pre-application consultation) or fails to meet one or more of the statutory criteria. We also believe that once rejected an application should not be re-presented without substantial revision. We propose that any promoter wishing to re-present an application that previously failed must construct a new application and make it subject to pre-application consultation and the objection stages.

4.36 We believe that the Scottish Ministers must make public their decision to reject or proceed with the application.

Step 4 - Initial Parliamentary consideration

4.37 Once the objection period has concluded and the Scottish Ministers have determined whether the application meets the procedural conditions and the specified criteria, the Procedures committee proposal expects the Scottish Ministers, if the decision is that the application should proceed, to lay before the Scottish Parliament a copy of the promoter's application together with a public explanation of the reasons as to why the Scottish Ministers believe that the application should proceed to the next stage. The reasoning will be based largely on an examination of how the application measures against the specified criteria.

4.38 The Procedures committee proposal suggests the Scottish Ministers should also formally recommend by a parliamentary motion that the application should proceed to detailed consideration and as part of that motion, the Scottish Ministers will advise the Scottish Parliament of the expected process of the detailed consideration of objections, which in most cases will be via a public examination.

4.39 We are concerned that the requirement to seek the Scottish Parliament's approval to proceed has the potential to introduce substantial delay to the progress of an application. Whilst we acknowledge that the Scottish Parliament has a legitimate interest in assessing the public interest of a proposal we believe that to do justice to the issues at stake the Scottish Parliament would, like the Scottish Ministers, need to consider the promoter's application in its entirety and in relation to any objections. Introducing parliamentary consideration at this stage would create a disproportionate amount of duplicatory work. There is also a danger of legislating to replicate, to some extent, the work currently undertaken by the Scottish Parliament in the Private Bills process. Given time constraints such as recess and competing interests which impact on the Scottish Parliament's time, we do not believe that the Scottish Parliament's approval to proceed should be a requirement. We acknowledge that it is helpful if the principle that a development is in the public interest can be confirmed prior to committing to the time and expense of the detailed examination process led by the reporter; in this respect, it is helpful that the most important and complex schemes will generally have been considered in the context of the National Planning Framework.

4.40 If there are no objections and the application is therefore unopposed we propose that the Scottish Ministers are able to determine whether the final Order can be made, subject to the application meeting all the set criteria.

Q6 Are there any reasons why, once the Scottish Ministers have determined that the application meets the procedural conditions and the specified criteria conditions, that the application should be considered by the Scottish Parliament prior to a public examination of the objections?

Step 5 - Detailed consideration

4.41 We propose that the process used to examine representations should be consistent with the Scottish Ministers' proposals for the wider planning system; the Scottish Ministers would therefore call for an examination to consider representations. This would be chaired by a Scottish Executive-appointed, but independent, reporter. The examination would be held in public, and the process would itself be open and transparent. It would be organised to meet the Scottish Ministers' objective of encouraging public participation. All parties would be expected to disclose their entire case in advance, allowing the examination to concentrate on the matters in dispute.

4.42 We also expect the reporter to have the necessary powers to call for evidence, or to require the agreement of statements of common ground and of disputed facts. The reporter could be assisted by technical experts, if considered necessary, to assist with technical matters at the examination. The hearings would be held, as far as practicable, at a place convenient to all parties and reasonably close to the location of the proposal.

4.43 The Scottish Ministers intend, for all such decision making processes, that promoters should ensure that their proposals are fully detailed and feasible at the point of submission in order to increase certainty and to reduce the difficulties faced by objectors when schemes are materially altered late in the day. There would be no scope for amendment by the promoter once an application has been submitted in order that the application is not continuously being changed. However, amendments designed to alleviate or remove any objections, implemented with the consent of both the promoter and the objector, would be encouraged by the reporter. The nature of the examination would be determined by the nature of the issue raised and the most effective method of resolving the outstanding issues. In any scheme this could involve in any combination: an exchange of written submissions, informed by visits to the site by the reporter and any assessors; an informal hearing where the reporter or assessor would lead a structured discussion following an agenda circulated in advance; or a more formal inquiry process. In the case of the last the subject matter to be covered in statements of evidence would be the subject of direction and cross-examination would be limited to that subject matter, and to the need to ensure the absence of repetition or any concentration on matters irrelevant to the Scottish Ministers' consideration of the scheme.

4.44 No matter what means of consideration is adopted in any individual case, the Scottish Ministers would also be able to direct the examination to consider a matter, or matters, on which they particularly wished to be informed for the purposes of their decision.

4.45 The Scottish Ministers recognise the need to ensure that the promoter and all objectors should have their point of view properly and fairly considered as part of the examination. In the Private Bill process there was some concern expressed by objectors that their particular interests were not adequately represented in the grouping of objections with a single party representing the interests of others. We are keen to establish an approach that will allow views to be made but not at the expense of unduly lengthening an examination or causing difficulties for those who may need to attend more regularly than would otherwise need to be the case.

4.46 We consider that it is appropriate that the costs to the Scottish Executive of mounting the examination should be met by the promoter. It is expected that parties to the examination would meet their own costs.

4.47 We anticipate that at oral sessions of the examination a transcript of proceedings should be made at the expense of the promoter and which would be available for parties, the reporter and subsequently for the Scottish Ministers. At the conclusion of the examination the reporter will provide the Scottish Ministers with a report containing conclusions and reasoned recommendations. If a reporter makes a recommendation that the Order should be amended to include additional or modified works then evidence must be considered relating to those modifications including, where necessary, an assessment of their environmental effects.

Step 6 - Final Ministerial decision and final Parliamentary approval

4.48 On receipt of the reporter's recommendations the Scottish Minister will be required to make a decision, either to accept (with or without modifications) or to reject those recommendations.

4.49 The material available to the Scottish Ministers in formulating a decision would comprise the application and its supporting documentation, the transcript of the oral examination, any further evidence supplied at the examination or as a written submission, together with the reporter's recommendations. In addition, the Scottish Ministers would, in forming a decision concerning the project, be able to request information or advice from any party that might assist their consideration. Any such material would be made available to other parties to the process, so that their assistance would also be available.

4.50 If the Scottish Ministers propose to make any modification not previously recommended by the reporter then we expect that the Scottish Ministers will notify all affected persons including those newly affected and be placed under a duty to both publicise and consider any representations that they make. Depending on the nature of the modification proposed this process of further information might be best organised by re-opening the examination. The means of collecting the additional information would again be tailored to the issues to be resolved.

4.51 We expect the Scottish Ministers to make a public pronouncement of a decision together with a copy of the inquiry report and any comments that the Scottish Ministers might have regarding the reporter's recommendations.

4.52 Once laid we expect the Final Order to be subject to normal affirmative Parliamentary procedure.

Scottish Executive-promoted Orders

4.53 The Procedures Committee report suggests that it should be possible for the Scottish Ministers to promote Transport and Works Orders. In short, the Scottish Ministers would be acting in the role of promoter. In most respects a similar process as outlined above is proposed subject to the following changes:

• Step 3 - Initial Ministerial consideration - an independent reporter may need to adjudge that the proposal's documentation meets the statutory requirements.
• Step 6 - Final Ministerial decision and final Parliamentary approval - the Procedures committee suggest that the Scottish Ministers' final draft Order should be subject to enhanced Parliamentary scrutiny. A super-affirmative Order process is proposed. This process would involve the Scottish Ministers presenting a draft Order which would be subject to consideration and amendment by the Scottish Parliament. The Scottish Ministers would then re-present the Order as a final Order after consideration of the changes proposed by the Scottish Parliament. It would also mean that the Scottish Ministers, in considering the Scottish Parliament's amendments would need to assess, with reference to affected parties, the implications of the Scottish Parliament's proposed modifications for the promoter as well as for existing and potential objectors. Such a measure has the potential of creating delay. The current affirmative Order process offers the Scottish Parliament, we believe, sufficient opportunity for scrutiny. The Scottish Parliament could choose to reject an affirmative Order and in so doing provide an explanation to the Scottish Ministers of the reasons for rejection and what would make the Order acceptable. The Scottish Ministers, after due consideration of the Scottish Parliament's view, could then represent the Order. We do not believe that the application of the novel, super-affirmative Order procedure offers any material advantage to the current affirmative Order process.

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