INTRODUCTION
Background and Purpose
1. This publication provides detailed guidance on the procedures for obtaining orders under Part 1 of the Transport and Works (Scotland) Act 2007 (" TAWS"). This publication can be found on the Government's website: www.scotland.gov.uk/Topics/Transport/ TAWS and this version was published on 28 th December, 2007.
2. The TAWS applies only to Scotland. It enables orders to be made authorising:-
- the construction or operation of railways, tramways, other modes of guided transport and trolley vehicle systems ;
- the construction or operation of inland waterways, (e.g canals).
3. Orders made under the TAWS may authorise matters connected with the above, such as the compulsory acquisition of land, the creation or extinguishment of rights over land, the charging of tolls and penalty fares and construction of associated works such as railway stations.
Who decides TAWS Order applications?
4. Applications for TAWS orders are made to, and determined by, the Scottish Ministers. Orders do not ordinarily require a Parliamentary procedure for approval although those developments that are considered to be "developments of national significance" as designated within the National Planning Framework ( NPF) will be subject to Parliamentary approval. The NPF sets out the Scottish Government's priorities for investment in the strategic infrastructure and is intended to influence planning policy and decisions. Full details of the NPF can be found at: www.scotland.gov.uk/publications/2004/04/19170/35318 (up-dates are likely in Autumn 2008).
Access to Land Order
5. It is intended that there will be a separate mechanism which provides a means to allow applicants in advance of an application for a TAWS order to access land to undertake a survey. This might, for example, assist in determining the suitability of land for the development or the most appropriate routing for a particular transport project. More details will be provided at a later date, subject to approval of the Scottish Parliament of orders made under section 18 of the TAWS.
The Applications and Objections Rules
6. There are rules which regulate the procedure to be followed by an applicant when making an application as well as providing a mechanism by which parties may make objections. These rules are the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 ( SSI 2007/570), known as the Applications and Objections Rules throughout this Guide. More details are given at paragraphs 4.1-4.55.
The Inquiries and Hearings Procedure Rules
7. There are rules regulating the procedure relating to the holding of public local inquiries into TAWS applications. These rules - which cover the procedures before, during and after an inquiry or hearing - are the Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007( SSI 2007/571). More details are given at paragraphs 6.1-6.77.
Available TAWS guidance
8. This publication provides a full description of the TAWS process from the preparation of an application through to its final determination and approval by the Scottish Ministers or, in certain instances, approval by the Scottish Parliament. Whilst it is intended primarily for the benefit of prospective applicants given the level of technical and detailed procedures it contains, it may also be of interest to those affected by proposed orders.
9. The Scottish Government has also issued an overview booklet - "Guide to the Transport and Works (Scotland) Act 2007" 1 to TAWS orders. It is mainly for the benefit of objectors and others who may simply require a quick overview of the TAWS process. Copies of the guide can be obtained from the TAWS Unit, or can be found on the Scottish Government's web site (paragraph 1 refers).
The role of the TAWS Orders Unit
10. The TAWS Orders Unit is a function of the Scottish Government and manages all aspects of the administrative and legislative processes relating to applications for TAWS orders that require a decision - called a determination - by the Scottish Ministers. Such applications should be addressed to The Scottish Ministers c/o the TAWS Orders Unit, and sent to the Unit's address at Annex 1.
11. The TAWS Unit takes the lead role in advising on TAWS procedures and considers any proposed changes to the legislation and issuing relevant guidance. Consideration of an application may also require the TAWS Unit to liaise with other parts of the Scottish Government, or with other authorities, bodies or persons.
12. The TAWS Unit is also responsible for the administration of applications for access to land made under section 18 of the TAWS (see paragraph 5).
Cross-border schemes
13. Under the devolution settlement affecting railways set out in the Scotland Act 1998 2, it is only possible for the Scottish Ministers to authorise the promotion and construction of railways which start, end and remain in Scotland. If a railway project goes cross-border then it is not devolved and so cannot be promoted under the TAWS.
14. Any applicant proposing a cross-border scheme is encouraged to contact the TAWS Unit at the earliest possible opportunity to discuss the matter. The Unit will also be happy to discuss any cross-border proposal with appropriate officials in the Department for Transport.
Status of this publication
15. The guidance given in this publication on the TAWS procedures and how they are to be applied is based on the Scottish Government's understanding of the statutory provisions and the principles underlying them and is intended to assist applicants and the public who have an interest in the process. However, no reliance should be placed on any legal interpretation given in this publication, as only the Courts can give an authoritative interpretation of the law, and applicants and other interested parties should seek their own independent legal advice where necessary. Should there be any inconsistency between the guidance in this publication and the provisions in the TAWS or relevant Scottish Statutory Instruments ( SSI) (such as might arise from a subsequent change in the legislation) the latter must prevail.
16. Furthermore, as this publication is essentially a procedural guide, it does not seek to address or promote any Scottish Government policies that may be relevant to determining the merits of a TAWS application. The relevant policies, and the weight to be attached to them, will vary from case to case. Each application must be looked at on its own merits in the light of the material circumstances and policies prevailing at the time. Any references in this publication to policies are therefore in general terms and relate to the policy, procedure and practice at the time of publication of this document. (Paragraph 1 refers).
17. The TAWS Unit will be glad to assist with any questions or requests for further information relating to the TAWS and, where appropriate, to offer guidance on the associated rules and regulations (subject to the caveats mentioned above). The Unit will not, however, be able to discuss with enquirers the merits of any prospective or current TAWS applications or give any indication as to the possible outcome. This is to protect the integrity and impartiality of the decision making process and avoid prejudicing the Scottish Ministers' decision on any particular case. Moreover, it is for prospective applicants and their legal advisers to consider, in the first place, what statutory powers they may need to implement a scheme, and whether those powers can appropriately be given by way of a TAWS order.