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Transport and Works (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-03-14

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Orders authorising works etc.

Power to make orders

Orders as to transport systems and inland waterways

1

(1) The Scottish Ministers may make an order relating to, or to matters connected with—

(a) the construction or operation of a transport system of any of the following kinds—

(i) a railway which starts, ends and remains in Scotland,

(ii) a tramway,

(iii) any system (other than a railway or tramway) using a mode of guided transport,

(iv) a trolley vehicle system, or

(b) the construction or operation of an inland waterway.

(2) The Scottish Ministers shall not make an order under paragraph (b) of subsection (1) if in their opinion the primary object of the order could be achieved by means of an order under the Harbours Act 1964 (c. 40).

Subject-matter of orders under section 1

2

(1) Without prejudice to the generality of section 1, the matters as to which provision may be made by an order under that section include those set out in schedule 1.

(2) An order under section 1 may make provision in relation to more than one scheme, system or mode of transport.

(3) An order under section 1 may—

(a) apply, modify or exclude any enactment which relates to any matter as to which an order could be made under that section,

(b) make such amendments, repeals and revocations of enactments of local application as appear to the Scottish Ministers to be necessary or expedient in consequence of any provision of the order or otherwise in connection with the order.

(4) The provisions that may be made by an order under section 1 include any provision that appears to the Scottish Ministers to be necessary or expedient for giving full effect to—

(a) any other provision of the order,

(b) any provision of an earlier order under that section, or

(i) an Act passed before the time when this Part of this Act is first wholly in force, or

(ii) an instrument made under an Act before that time,

and which is of a kind which could be included in an order under that section.

(5) An order under section 1 may make provision—

(a) as to the issuing of a fixed penalty notice in respect of an offence created by the order,

(b) as to the enforcement of a fixed penalty under such a notice,

(c) authorising byelaws made by virtue of the order to include provision of the nature referred to in paragraph (a) or (b) in respect of an offence created by the byelaws.

(6) In subsection (5)(a), “fixed penalty notice” means a notice offering the opportunity, by paying a fixed penalty, to discharge any liability to be convicted of the offence to which the notice relates.

(7) An order under section 1 shall not extinguish any public right of way over land unless the Scottish Ministers are satisfied—

(a) that an alternative right of way has been or will be provided, or

(b) that the provision of an alternative right of way is not required.

Crown land

3

(1) If the appropriate authority agrees—

(a) a relevant interest may be acquired compulsorily by virtue of an order under section 1,

(b) any provision of this Act or of such an order (other than a provision by virtue of which an interest in land is compulsorily acquired) may apply in relation to a Crown interest, and

(2) In subsection (1), a relevant interest is an interest (not being itself a Crown interest) which subsists in land in which there is a Crown interest.

(3) In this section, “Crown interest” means an interest—

(a) belonging to Her Majesty in right of the Crown or in right of Her private estates,

(b) belonging to an office-holder in the Scottish Administration or to a government department,

(d) held in trust for Her Majesty for the purposes of a government department.

(4) In this section, the appropriate authority, in the case of—

(a) land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners,

(b) other land belonging to Her Majesty in right of the Crown, means the office-holder in the Scottish Administration who, or as the case may be the government department which, has management of the land or the relevant person,

(c) land belonging to Her Majesty in right of Her private estates, means a person appointed by Her Majesty in writing under the Royal Sign Manual or, if no such appointment is made, the Scottish Ministers,

(d) land belonging to, or held in trust for Her Majesty for the purposes of the Scottish Administration by, such an office-holder, means that office-holder,

(e) land belonging to, or held in trust for Her Majesty for the purposes of, a government department, means that government department.

(4A) In subsection (4), “relevant person”, in relation to any land to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that land.

(5) The references in subsections (3)(a) and (4)(c) to Her Majesty's private estates are to be construed in accordance with section 1 of the Crown Private Estates Act 1862 (c. 37).

(6) It is for the Scottish Ministers to determine, for the purposes of this section, any question arising as to what authority is the appropriate authority in relation to any land; and their determination is final.

Procedure for making orders

Applications

4

(1) The Scottish Ministers may make an order under section 1 on an application made to them in accordance with rules made under this section.

(2) The Scottish Ministers may make rules as to—

(a) the form of an application under this section,

(b) the documents and information to be submitted with the application,

(d) consultation to be undertaken before the application is made, and

(e) any other steps to be taken—

(i) before the application is made, or

(ii) in connection with the making of the application.

(3) The power to make such rules includes power to make provision—

(a) for (or in connection with) requiring the Scottish Ministers, in such cases or circumstances as may be prescribed in the rules, to give to a person who proposes to make an application under this section an opinion on the information, if any, to be supplied in connection with the application,

(b) as to the publicity to be given to any environmental information provided in relation to an application under this section.

(4) Any provision made—

(a) by virtue of subsection (2)(b) as to the provision of information by a relevant authority to a person for the purposes of an application which the person proposes to make, or

(b) by virtue of subsection (2)(d),

may include provision requiring compliance with general or special directions given by the Scottish Ministers.

(5) Rules under this section may include provision authorising the Scottish Ministers—

(a) to dispense with compliance with rules that would otherwise apply, or

(b) to require compliance with rules that would not otherwise apply,

in any case where they consider it appropriate to do so.

(6) Rules under this section may provide for fees of such amounts as may be determined by, or in accordance with, the rules to be payable to the Scottish Ministers in connection with applications made under this section.

(7) In subsection (4)(a), “relevant authority” means ...—

(a) Scottish Natural Heritage,

(b) the Scottish Environment Protection Agency,

(d) a National Park authority.

(e) Historic Environment Scotland.

Cases where other Member States are affected

5

(1) The power to make rules under subsection (2) of section 4 includes power to make, for a case where an application has been made under that section and a Member State is affected by the project in question, rules as to—

(a) the provision by the Scottish Ministers to—

(i) the Member State,

(ii) authorities in that state, or

(iii) the public of that state,

of documents and information relating to the application,

(b) consultation by the Scottish Ministers with the Member State in connection with the application, or

(i) the decision, or

(ii) matters relating to the decision,

on the application.

(2) For the purposes of subsection (1), the cases where a Member State is affected by a project are those cases where—

(a) it appears to the Scottish Ministers that the project would be likely to have significant effects on the environment in that Member State, or

(b) that Member State is likely to be affected significantly by the project and requests information relating to the application.

(3) In this section “Member State” includes a state which is a contracting party to the EEA Agreement.

Orders made otherwise than on application

6

(1) The Scottish Ministers may (without any application being made to them)—

(a) if it appears to them to be necessary or expedient to do so—

(i) for the purpose of suspending or discontinuing any operations, or

(ii) in consequence of the abandonment or neglect of any works,

make an order under section 1,

(b) if any provisions of an order under that section appear to them to be spent, make an order under that section repealing or revoking those provisions,

(c) if they think fit (and whether or not an order under that section might be made by virtue of paragraph (a) or (b)), make by virtue of this paragraph an order under that section.

(2) An order made by virtue of subsection (1)(a) may include provision for the recovery by the Scottish Ministers of any sum expended in—

(a) making the order, or

(b) carrying the provisions of the order into effect.

(3) Where the Scottish Ministers propose to make an order by virtue of subsection (1), they are to—

(a) prepare a draft of the order,

(b) publish a notice of that proposal, including such particulars as may be prescribed, in the Edinburgh Gazette and in a local newspaper circulating in the area (or in each of the areas) in which the proposals contained in the draft order are intended to have effect, and

(4) The power to make provision by rules under section 4 in relation to applications includes power to make such corresponding provision as the Scottish Ministers consider appropriate in relation to proposals to make orders by virtue of subsection (1); and in subsection (3), “prescribed” means prescribed by rules under that section.

(5) Without prejudice to the generality of subsection (4), in that subsection “corresponding provision” includes provision by rules corresponding to such rules as are mentioned in section 5(1).

Model provisions

7

(1) The Scottish Ministers may issue (and whenever they do so are to publish) guidance comprising model provisions for incorporation in any draft orders which, in accordance with rules made under section 4, may be required to be submitted with applications under that section.

(2) Different guidance may be issued under this section for different cases or descriptions of case or for different purposes.

(3) The power to issue guidance under subsection (1) includes power to revoke or amend guidance issued under that subsection.

Objections and representations

8

(1) The Scottish Ministers may make rules as to—

(a) the making of objections—

(i) to an application under section 4, or

(ii) to a proposal to make an order by virtue of section 6,

(b) the information to be comprised within or submitted with any such objection,

(c) in the case of an objection made by virtue of paragraph (a)(i), the submission by the person making the application of—

(i) written representations, or

(ii) information,

in relation to the objection,

(d) the submission of further—

(i) written representations, or

(ii) information,

(e) such other matters relating to the consideration of objections as appear to the Scottish Ministers to be appropriate.

(2) Subject to the following provisions of this section, the Scottish Ministers are not to make a determination under section 11(2)(a) or (b) without first taking into consideration the grounds of any objection in respect of which rules under this section have been complied with.

(3) If an objection is withdrawn or appears to the Scottish Ministers—

(a) to be frivolous or trivial, or

(b) to relate to matters concerned with the assessment of compensation, being matters which fall to be determined by the Lands Tribunal for Scotland,

they may make a determination such as is mentioned in subsection (2) without further consideration of the objection.

(4) Subsection (2) does not apply where the Scottish Ministers cause an inquiry to be held under subsection (1) of section 9 or cause an objection to be dealt with in accordance with subsection (2) of that section; but the Scottish Ministers are not to make a determination under section 11(2) without first taking into consideration the report of the person holding the inquiry or as the case may be of the person appointed under section 9(2).

(5) Rules under this section may include provision authorising the Scottish Ministers—

(a) to dispense with compliance with rules that would otherwise apply, or

(b) to require compliance with rules that would not otherwise apply,

in any case where they consider it appropriate to do so.

(6) The Scottish Ministers are, as soon as practicable after giving dispensation or requiring compliance under subsection (5), to notify their reasons for doing so to every person who the Scottish Ministers consider is materially affected by the dispensation or requirement.

(7) Reasons may be notified under subsection (6) by—

(a) giving notice to the persons affected, or

(b) publishing a notice in such manner as the Scottish Ministers consider appropriate.

(8) Rules under this section may include provision that they are to apply, or to apply with such modifications as may be specified in the rules, to the making of representations as regards—

(a) an application under section 4, or

(b) a proposal to make an order by virtue of section 6,

as they apply to the making of objections to such an application or proposal.

(9) In subsection (8) and in section 9, “representations” does not include representations submitted by virtue of paragraph (c) or (d) of subsection (1).

Inquiries and hearings

9

(1) The Scottish Ministers may cause a public local inquiry to be held for the purposes of—

(a) an application under section 4, or

(b) a proposal by the Scottish Ministers to make an order by virtue of section 6.

(2) The Scottish Ministers may give to a person who makes an objection or representations in accordance with rules under section 8 an opportunity of appearing before and being heard by a person appointed by the Scottish Ministers for the purpose.

(3) Where a person within subsection (4)—

(a) makes an objection, and

(b) informs the Scottish Ministers in writing of a wish for the objection to be referred to an inquiry or dealt with in accordance with subsection (2),

then, unless section 8(3) applies, the Scottish Ministers must either cause an inquiry to be held or, if they so determine, cause the objection to be dealt with in accordance with subsection (2).

(4) The persons within this subsection are—

(a) the local authority for an area in which any works authorised by the proposed order are to be carried out,

(b) the National Park authority for a National Park in which any works authorised by the proposed order are to be carried out,

(c) the Transport Partnership created under section 1(1)(b) of the Transport (Scotland) Act 2005 (asp 12) for a region in which any works authorised by the proposed order are to be carried out,

(d) any navigation authority concerned with waters which would be affected by any works authorised by the proposed order,

(e) where any works authorised by the proposed order would affect the construction or operation of a railway, Network Rail Infrastructure Limited, and

(f) where the proposals include the compulsory acquisition of land, any person who, if the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) applied to the acquisition, would be entitled to a notice under paragraph 3(b) of the First Schedule to that Act (notice to owners, lessees and occupiers, etc.).

(5) In subsection (4)(d), “navigation authority” means a person authorised by any enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock.

Procedure at inquiries and hearings

10

(1) The Scottish Ministers may make rules regulating the procedure to be followed in connection with—

(a) an inquiry held under section 9,

(b) a hearing held under subsection (2) of that section.

(2) Rules under this section may regulate procedure—

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