The Scottish Government

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THE LAW SOCIETY OF SCOTLAND CONSULTATION RESPONSE

INTRODUCTION

The Planning Law Sub-Committee of the Law Society of Scotland ("the Committee") welcomes the opportunity to comment on the consultation issued by the Scottish Executive with regard to the secondary legislation in terms of the Transport and Works (Scotland) Act 2007 and, in answer to the questions contained within the consultation document, would respond as follows:-

SPECIFIC COMMENTS

Annex A - Draft of the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007

A1: Are the consultees mentioned under rule 8(2)(e) with whom applicants are expected to consultant appropriate and comprehensive? Are there any bodies that should be added or deleted from Schedules 3 and 4?

The Committee would question the choice of organisations as contained in both Schedules 3 and 4. The Committee notes that there is a mix of both statutory and non-statutory organisations and would question why some organisations of a non-statutory nature have been chosen and not others. The Committee also notes that Local Authorities, Community Councils, Scottish Enterprise and Visit Scotland are also omitted from the lists of consultees and are of the view that these organisations should be included. In particular, the Committee considers that a Local Authority in whose local government area works are being undertaken should always be consulted.

A2: In respect of rule 17 we welcome views on the level of fees for an application. In the last Parliament a commitment was given that charitable organisations would not pay a fee based on 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 applicant.

The Committee considered this question and is of the view that the application fee is insignificant with regard to the overall cost of the project. In any event, the Committee would question whether a charitable organisation would utilise this legislation.

A3: Are there any inconsistencies or unintended consequences in the rules as drafted?

The Committee note from Articles 10(7) and 13 of the draft statutory instrument that there is no requirement to notify adjoining proprietors and would question this omission.

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?

The Committee is concerned with regard to the shortness of timescales and the practical difficulties that ensue therefrom. In particular, promoters of complex applications are required to prepare volumes of documentation within a restricted timescale, as is the case with responding to each and every objection the applicant is bound so to do within 28 days.

Annex B: Draft of the Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007

B1: Are there any further efficiencies that could be met in terms of the timing of pre-inquiry activities without causing problems for participants?

The Committee would refer to Article 7(4) and question whether it is necessary for either a statutory objector, or any other person who has notified Scottish Ministers of their intention or wish to appear at the inquiry, to serve upon Scottish Ministers and the applicant a copy of every document, or the relevant part of any document, at the same time as the submission of the statement of case. The Committee would refer to current planning inquiry procedure whereby the statement of case is submitted prior to planning inquiry documentation which is submitted 4 weeks prior to the commencement of the inquiry. The Committee would also question the requirement for the applicant to post a notice of inquiry in terms of Article 11(6)(a).

B2: Do respondents agree that there is still reasonable opportunity for all interested parties to make relevant contributions at an inquiry or hearing?

Yes, but the Committee would note that the opportunity for interested parties to make relevant contributions, in the experience of Committee members at inquiry, is often attributable to the experience and expertise of the individual Reporter.

B3: Should the requirement for a statement of case be retained despite its potential to be a re-phrasing of the original representation?

Yes. The Committee is of the view that the statement of case is a useful mechanism in order to allow a debate to be focused.

B4: Are there any inconsistencies or unintended consequences in the rules as drafted?

The Committee would not wish to comment upon unintended consequences or inconsistencies in the rules but would note that there is no specific reference to expenses.

B5: What further legislative action, if any, should be taken to facilitate the effect of running of inquiries and hearings?

The Committee has no specific comments but would note that, in terms of these rules, there is no exclusive reference to the ability to be represented at an inquiry or a hearing.

Annex C - Draft of the Transport and Works (Scotland) Act 2007 (Consents under other Enactments) Regulations 2007

C1: Are the consents as listed appropriate? Are there any other consent regimes which could be usefully incorporated within the regulations?

The Committee would consider it appropriate to include matters such as tree-felling under the Forestry Act, the stopping-up of roads and footpaths and also licences under Controlled Activity Regulations and other appropriate consents may be required under the Food and Environment Protection Act 1985.

C2: Are there any inconsistencies or unintended consequences in the regulations as drafted?

The Committee would consider it inappropriate to comment.

Annex D - Draft of the Transport and Works (Scotland) Act 2007 (Access to Land and Applications) Order 2007

AND

Annex E - Draft of the Transport and Works (Scotland) Act 2007 (Access to Land by Scottish Ministers) Order 2007

D1: Does Article 5 of the legislation request appropriate information? Is there too little or too much relevant information and, if so, what could easily be dispensed with or be additionally required?

The Committee would consider that Article 5 does request appropriate information but the notice referred to in Forms 1 and 2 should make reference to a plan.

D2/E1: Do consultees agree that the notice contained within Forms 1 and 2 provide all pertinent information and sufficient clarity as to be understandable by recipients?

Yes, but reference should, of course, be made to a plan.

D3/E3: Are there any inconsistencies or unintended consequences in the order as drafted?

The Committee is of the view that the definition of land should, as reflected in the Town and Country Planning (Scotland) Act 1997, include land covered with water and any buildings. The Committee further notes that there is no timescale provided for in relation to consideration of the application. The timescale is appropriate given that there may be time-sensitive and seasonal issues for the applicant with regard to preparing an environmental statement.

D4/E3: What further legislative action, if any, should be taken to facilitate the effective operation of the proposed procedure?

The Committee would refer to its above comments.

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?

The Committee is satisfied with regard to the provisions and would consider it unusual that there be a vexatious request for access to land. It is the Committee's view that to knowingly falsify information required in support of an application would, of course, be a criminal matter and render the applicant subject to prosecution.

For further information and alternative formats please contact:

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The Law Society of Scotland

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