The Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007

Made: 18th December 2007

Coming into force: 28th December 2007

The Scottish Ministers make the following Rules in exercise of the powers conferred by sections 4, 5(1), 6(3), (4) and (5), 8(1), (5) and (8) and 28(6) of the Transport and Works (Scotland) Act 2007 and all other powers enabling them to do so.

In accordance with section 28(4) and (5) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

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These Rules may be cited as the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 and come into force on 28th December 2007.

Interpretation

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• (1) In these Rules (unless the context otherwise requires)–

• “the Act” means the Transport and Works (Scotland) Act 2007;

• “additional information” means—supplementary information required in accordance with rule 15(2); orany other information provided by the applicant which, in the opinion of the Scottish Ministers is substantive information about a matter to be included in the EIA report in accordance with rule 9(2);

• “applicant” means a person making, or proposing to make, an application;

• “application” means an application under section 4 of the Act;

• “the appropriate authority” has the same meaning as in section 3(4) of the Act (Crown land);

• “benefited property” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003 (interpretation) ;

• “bridleway” has the same meaning as in section 47 of the Countryside (Scotland) Act 1967 (interpretation) ;

• “the consultation bodies” means—every local authority in whose area the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;every National Park authority for a National Park in which the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;the Scottish Environment Protection Agency;Scottish Natural Heritage;Historic Environment Scotland;

• “Crown interest” has the same meaning as in section 3(3) of the Act;

• “cycle track” has the same meaning as in section 151 of the Roads (Scotland) Act 1984 (interpretation) ;

• “development management scheme” has the same meaning as in section 71(3) of the Title Conditions (Scotland) Act 2003;

• “the Directive” means Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 2014/52/EU;

• “documents” includes photographs, drawings, maps and plans;

• “EEA State”, in relation to any time, means—a state which at that time is a member State; orany other State which at that time is a party to the EEA Agreement;

• “EIA application” means an application under section 4 of the Act for works which—would constitute a project of a type mentioned in Annex I to the Directive; orwould constitute a project of a type mentioned in Annex II to the Directive and are likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

• “EIA report” has the meaning given in rule 9;

• “environmental impact assessment” has the meaning given in rule 2A;

• “equipment” includes apparatus and any structure for the lodging in it of equipment or for gaining access to equipment;

• “expiry date for objections” means the date, being a date not less than 42 days after the date on which the application in question is made, which the applicant specifies in the notice published pursuant to rule 12(1) as the final date for making objections;

• “footpath” has the same meaning as in section 151 of the Roads (Scotland) Act 1984;

• “holder”, in relation to a personal real burden, has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003 ;

• “in writing” includes electronic transmission;

• “Member State” has the same meaning as in section 5(3) of the Act;

• “navigation authority” has the same meaning as in section 9(5) of the Act;

• “occupier” includes–statutory undertakers (not being an owner) having a right to keep equipment on, in or over land; anda person having the right to construct or maintain, at a specific position on an inland waterway, a mooring post, gangway, landing stage or other erection or installation for a vessel (not being anything which when not in use is normally carried on the vessel);

• “operative date” means the date falling 21 days after the expiry date for objections or such later date as the Scottish Ministers may specify;

• “operator”–in relation to a transport system, means any person carrying on an undertaking which includes the system, or any part of it, or the provision of transport services on the system; andin relation to an inland waterway, means any person authorised by any enactment to work, maintain, conserve, improve or control the inland waterway;

• “owner”, in relation to any land, means any person who under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes a lessee under a lease the unexpired period of which exceeds three years;

• “personal real burden” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003;

• “planning authority” has the same meaning as for the purposes of Part 3 of the Town and Country Planning (Scotland) Act 1997 (control over development) ;

• “regional Transport Partnership” means a Transport Partnership created under section 1(1)(b) of the Transport (Scotland) Act 2005 ;

• “relevant assessment” means an assessment, or verification, of effects on the environment carried out pursuant to legislation in Scotland (other than legislation implementing the requirements of the Directive) which is relevant to the assessment of the environmental impacts of the proposed development;

• “relevant person”, in relation to any property, rights or interests to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that property or those rights or interests;

• “river” means any river (including any part of a river which is tidal or which has been canalised), loch, lake, stream, burn, ditch, culvert, drain, sluice, weir or any other passage by which water drains, but does not include–a canal or inland navigation which is not a canalised part of a river;a public sewer or a sewer or pipe used primarily for the drainage of a building or any premises appurtenant to a building, or of a road;

• “road managers” has the same meaning as in section 108(4) of the New Roads and Street Works Act 1991 ;

• “roads authority” has the same meaning as in section 151(1) of the Roads (Scotland) Act 1984 ;

• “scoping opinion” has the meaning given in rule 6(1);

• “screening decision” has the meaning given in rule 5(3);

• “statutory undertakers” has the same meaning as in section 214 of the Town and Country Planning (Scotland) Act 1997 except that it includes a public communications provider within the meaning of section 151(1) of the Communications Act 2003 (interpretation) ;

• “tidal waters” means such part of–the territorial sea of the United Kingdom as is adjacent to Scotland; andthe internal waters of the United Kingdom as are in or adjacent to Scotland insofar as they are tidal or constitute part of the sea;

• “title condition” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003;

• “transport system” means a railway, tramway or trolley vehicle system or any system (other than a railway or tramway) using a mode of guided transport;

• ...

• “works” means any works that may be authorised by an order made under section 1 of the Act but in rules 5, 6, 9 and 14, Schedule 1 and in paragraphs 6, 9, 16(f), 29 and 30 of Schedule 5, shall also include any matter that may be authorised by such an order; and

• “works affecting”, in relation to any land, means works proposed to be carried out in, on, over or adjacent to that land.

• (2) Where these Rules require that notice be served, published or displayed in a prescribed form, the notice shall be served, published or displayed (as the case may be) duly completed–

• (a) in that form;

• (b) in a version of that form adapted to meet the circumstances of the particular case; or

• (c) in a form which has substantially the same effect as that form (whether the form is adapted or not),

and, except where these Rules require that the notice in question be published in a newspaper or on a website, duly signed by or on behalf of the person required to serve the notice.

Pre-application documentation

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• (1) The applicant shall send to the Scottish Ministers not later than 42 days before making an application a draft of–

• (a) the proposed order under section 1 of the Act;

• (b) the explanatory memorandum to the order; and

• (c) the statement and memorandum in respect of legislative competence,

that the applicant intends to submit in pursuance of rule 8(2).

• (2) Where an applicant has sent drafts to the Scottish Ministers in accordance with the provisions of paragraph (1) but subsequently amends any of those drafts the applicant shall not be required to send any amended drafts to the Scottish Ministers before making an application unless the applicant is of the opinion that any amendment substantially alters the nature or effect of the proposed order.

• (3) The applicant must, not later than 42 days before making the application, send a draft of the applicant’s EIA report to—

• (a) the Scottish Ministers; and

• (b) the consultation bodies.

• (4) The applicant must, within the timescale specified by the Scottish Ministers, send a draft of the EIA report to any other public body which the Scottish Ministers have advised the applicant is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies.

Provision of environmental information

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• (1) Where an applicant at any time serves notice in writing on any person who is not a Scottish public authority within the meaning of regulation 2(1) of the Environmental Information (Scotland) Regulations 2004 (interpretation) that for the purposes of the proposed application the applicant wishes to be provided with environmental information, the recipient of the notice so served shall, within 28 days of the request, provide to the applicant any information which the recipient has and which either the recipient or the applicant considers relevant to a screening decision (if that decision has not yet been made) or to the preparation of the environmental statement.

• (2) The recipient of the notice may seek reimbursement from the applicant of any reasonable costs associated with the provision of information.

The requirement for environmental statement and screening decision

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• (1) The occurrence of an event mentioned in paragraph (2) determines for the purpose of rules 2A, 3(3) and (4), 4 to 6, 8(2)(h) and (i), 9, 11(4) and (7)(d), 12(10) to (12), 14 to 15A, 26(2), schedule 1, and paragraphs 3 to 10, 11A, 12 (as it applies to paragraph 11A), 12A, 16(f), 19, 20 (as it applies to paragraph 19), 21 (as it applies to paragraph 11A), 30, 31, 33 (except for the reference to paragraph 29 in paragraph 33) and 35(2) of schedule 5 that an application is an EIA application.

• (2) The events are—

• (a) the making by the Scottish Ministers of a screening decision to the effect that proposed application will be an EIA application; or

• (b) if no screening decision has been made by the Scottish Ministers, the submission by the applicant in relation to those proposed works of a report referred to by the applicant as an EIA report.

• (3) The Scottish Ministers may direct that rules 2A, 3(3) and (4), 4 to 6, 8(2)(h) and (i), 9, 11(4) and (7)(d), 12(10) to (12), 14 to 15A, 26(2), schedule 1, and paragraphs 3 to 10, 11A, 12 (as it applies to paragraph 11A), 12A, 16(f), 19, 20 (as it applies to paragraph 19), 21 (as it applies to paragraph 11A), 30, 31, 33 (except for the reference to paragraph 29 in paragraph 33) and 35(2) of schedule 5 do not apply in relation to particular proposed works specified in the direction if the works will have as their sole purpose response to civil emergencies and where in the opinion of the Scottish Ministers compliance with rules 2A, 3(3) and (4), 4 to 6, 8(2)(h) and (i), 9, 11(4) and (7)(d), 12(10) to (12), 14 to 15A, 26(2), schedule 1, and paragraphs 3 to 10, 11A, 12 (as it applies to paragraph 11A), 12A, 16(f), 19, 20 (as it applies to paragraph 19), 21 (as it applies to paragraph 11A), 30, 31, 33 (except for the reference to paragraph 29 in paragraph 33) and 35(2) of schedule 5 would have an adverse impact on their purpose.

• (4) Before an application (other than an application relating to works constituting a project which is of a type mentioned in Annex I of the Directive) is made, the Scottish Ministers may at the request of the applicant make a decision as to whether or not an environmental impact assessment is required (“a screening decision”).

• (5) In making a screening decision as to whether an application for proposed works which would constitute a project of a type mentioned in Annex II to the Directive is an EIA application, the Scottish Ministers must—

• (a) in all cases take into account—

• (i) such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works; and

• (ii) the available results of any relevant assessment of the effects of the proposed works; and

• (b) where that decision is made following a request for a screening decision under paragraph (4), base their decision on the information provided in accordance with paragraph (6).

• (6) A request for a screening decision under paragraph (4) must be accompanied by—

• (a) a plan sufficient to identify the land;

• (b) a description of the proposed works, including in particular—

• (i) a description of the physical characteristics of the proposed works and, where relevant, of demolition works;

• (ii) a description of the location of the proposed works, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

• (c) a description of the aspects of the environment likely to be significantly affected by the proposed works; and

• (d) a description of any likely significant effects, to the extent of the information available on such effects, of the proposed works on the environment resulting from—

• (i) the expected residues and emissions and the production of waste, where relevant; and

• (ii) the use of natural resources, in particular soil, land, water and biodiversity.

• (7) A request for a screening decision may, in addition to the information required in accordance with paragraph (6), also be accompanied by a description of any features of the proposed works, or proposed measures, envisaged to avoid or prevent significant adverse effects on the environment.

• (8) The information referred to in paragraph (6) is to be compiled taking into account, where relevant—

• (a) the selection criteria set out in Annex III to the Directive; and

• (b) the available results of any relevant assessment.

• (9) If the Scottish Ministers consider that the information provided by the applicant in or with a request under paragraph (4) is insufficient to enable them to make a screening decision they must, not later than 28 days after receiving the request, notify the applicant in writing of the points on which they require further information.

• (10) On receiving notification under paragraph (9), the applicant must provide the Scottish Ministers with such of the further information specified in that notification as the applicant is reasonably able to supply and, where any of the further information so specified is not provided, a written explanation as to why the applicant is unable to provide the information.

• (11) The Scottish Ministers must not give a screening decision until they have given notice of the request to, and invited the views of, the following bodies—

• (a) the consultation bodies; and

• (b) any other public body which the Scottish Ministers consider is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies,

and the Scottish Ministers must include in each such notice the information provided in or with a request under paragraph (4).

• (12) Any body falling within paragraph (11) which is the recipient of a notice served under that paragraph must, not later than 28 days after receiving the notice, provide the Scottish Ministers with a written opinion as to whether or not, in the view of the recipient, the works in question should be the subject of an environmental impact assessment.

• (13) Where a request for a screening decision relates to an order which would, if made, authorise works which for the purposes of the Directive could constitute two or more projects which are not interdependent, the Scottish Ministers may, if they consider it expedient, treat each such project separately for the purposes of this rule and, in such a case, the references in this rule to works shall be construed as relating to each such project separately, and the references to the screening decision shall be construed as relating to such a decision in relation to each such project.