Scottish Government

Part 8: Determination of Applications

Introduction

8.1 This Part deals with the process leading up to a decision by the Scottish Ministers on an application for an order (including a decision in respect of a proposal from the Scottish Ministers) following the close of an inquiry or hearing or the completion of the written representations procedure (or where the order is unopposed). The guide timescales for this process are given below and the sections quoted in the headings below refer to the sections of the TAWS.

Policies and procedures relating to decisions

8.2 The Scottish Ministers must decide whether or not to make an order giving effect to the proposals concerned. If an order is to be made, this may be with or without modifications to the draft submitted by the applicants - although if the Scottish Ministers wish to make modifications that would substantially change the proposals (paragraph 8.4 below), affected parties must be given a prior opportunity to comment (see paragraph 8.3). Where the applicant has also applied for a planning direction under section 57(2A) of the Town and Country Planning (Scotland) Act 1997, the Scottish Ministers will make a determination of that application at the same time. It will normally follow that if the decision is to make the order, a planning direction deeming the grant of planning permission would be issued. The Scottish Ministers will give notice of their determination by way of a decision letter, which will give the full reasons for making or refusing the order.

The Scottish Ministers could determine not to make an order if they considered that any of the objects of the draft order could more appropriately be achieved by other means such as a different statutory procedure. However, it is hoped that the Scottish Ministers would not need to refuse an order on these grounds if the applicant had consulted the TAWS Unit before making the application and taken account of any guidance or comments received. Alternatively, it may be suggested to an applicant after an application has been made that a TAWS order is inappropriate, and they may be invited to withdraw the application.

8.3 If the Scottish Ministers propose to make an order with modifications which would, in their opinion, amount to a substantial change in the proposals, the Scottish Ministers must, under section 11(5):

• notify any person who appears likely to be affected by the change;
• give that person an opportunity of making representations about the modifications within such period as may be specified; and
• consider any representations received within the time limits.

8.4 Although the Scottish Ministers implicitly have the power to make amendments to a proposed order, it would not be appropriate to make changes that were so substantial that the Scottish Ministers would in effect be approving a fundamentally different proposal from the one for which an application had been made. If it were considered that the proposal as submitted was seriously flawed, and that it could only be put right by making changes that would result in a fundamentally different proposal, then the proper course would be to turn down the application.

Unopposed orders

8.5 Where no objections have been made to an order, or any that were made have been withdrawn, the Scottish Ministers should be able to proceed to determine the order. It does not follow, however, that because there is no opposition to a proposed order the Scottish Ministers will not wish to make any modifications to it. Nor should it be assumed that the Scottish Ministers will necessarily make the order. It will still need to be considered whether the provisions in the draft order (and any proposed planning conditions, if deemed planning permission has been sought) are appropriate and justified. This may require a reference back to the applicants if the Scottish Ministers are unclear on the purpose and effect of any of the provisions.

Orders subject to written representations procedure

8.6 The procedure for exchanging written representations (for opposed orders which do not require an inquiry or hearing) is described in Part 5. In these cases, the application will be determined when the Scottish Ministers are satisfied that the exchanges between the applicant and objectors have produced all of the information needed for the purposes of a decision.

Orders subject to an inquiry

8.7 After the close of the inquiry, the Reporter must submit a written report to the Scottish Ministers, containing their conclusions and recommendations (see rule 18 of the Inquiries and Hearings Rules). In the unusual situation of the report not including any recommendations, the Reporter must give reasons in the report for not doing so.

8.8 Any Assessor who was appointed may make a report in writing to the Reporter in respect of the matters on which the Assessor was appointed to advise. The Assessor's report must be appended to the Reporter's own report, which must state how far the Reporter agrees or disagrees with the Assessor's report. The reasons for any disagreement must be included in the Reporter's report.

8.9 After receiving the Reporter's report, the Scottish Ministers will need to consider whether or not they agree with the conclusions and recommendations contained in it. Unless outstanding matters that may affect the decision are left unresolved (for example, because the Reporter was not sufficiently informed on a key matter at the inquiry, or because circumstances have changed materially since the close of the inquiry), the Scottish Ministers should be able to proceed to a determination.

8.10 Written representations are sometimes received by the Scottish Ministers after the inquiry. They may, under rule 18(4) of the Inquiries and Hearings Rules, disregard any written representations, evidence or other document received after an inquiry. The Scottish Ministers would nevertheless wish to consider whether any post-inquiry representations contain new evidence that might be significant enough to lead to a different decision. In that very exceptional situation, it would be necessary, in the interests of natural justice and informed decision making, to refer back to the parties.

8.11 Rule 18(5) provides, in particular, that if the Scottish Ministers of the Inquiries and Hearings Rules disagree with the Reporter's recommendation as a result of:

(a) differing from the Reporter on any matter of fact mentioned in, or appearing to be material to, a conclusion reached by the Reporter; or

(b) taking into consideration any new evidence or new matter of fact (not being a matter of government policy);

a reference back to the parties must take place. The Scottish Ministers must notify the applicant and any other persons specified in rule 12(1) of the Inquiries and Hearings Rules who appeared likely to be affected and who had appeared at the inquiry, of the disagreement and the reasons for it. Those persons must be afforded the opportunity of making written representations within 3 weeks of the date of the notification, or, if the Scottish Ministers have taken into consideration any new evidence or new matter of fact (not being a matter of government policy), of asking within that period for the inquiry to be re-opened.

8.12 Where the Scottish Ministers is disposed to agree with the Reporter on the basis of the information available but nevertheless consider:

(a) that further information was needed from the applicant and/or other relevant persons in regard to a material issue; or

(b) that persons affected should be given the opportunity to make representations on any material new evidence or matter of fact (see paragraph 8.10);

a letter would be sent to appropriate persons, setting out what further information was required or, as the case may be, inviting comments on the new evidence or matter of fact. The letter would set a date by when a reply was required and would be copied to all persons appearing to the Scottish Ministers to be affected by the issue in question. Before making a final decision on the order, the Scottish Ministers would consider whether any further information or representations received should be copied to other parties with a further invitation to comment.

8.13 The Scottish Ministers would have to re-open the inquiry in the circumstances described in paragraph 8.11 above if asked to do so by the applicant or by a statutory objector within 3 weeks of the date of the notification. The Scottish Ministers might re-open the inquiry in other circumstances, but would only wish to do so where it was impracticable to deal with the matter by written representations.

8.14 Where an inquiry is re-opened, the Scottish Ministers must send to the persons specified in rule 12(1) of the Inquiries and Hearings Procedure Rules who appeared at the inquiry a written statement of the matters with respect to which further evidence is invited. The minimum period of notice for the re-opened inquiry would be 4 weeks. The Reporter appointed for the re-opened inquiry would usually be the person who conducted the original inquiry, unless that was impracticable or impossible (e.g. because the original Reporter had retired).

Orders subject to a hearing

8.15 The Reporter will submit a report to the Scottish Ministers containing their conclusions and any recommendations. Assuming that there was no need to refer back to the parties after the hearing (see next paragraph) the Scottish Ministers would proceed to determine whether or not to make the order in the light of the report of the Reporter.

8.16 As with an inquiry report, the Scottish Ministers would not be bound to accept the recommendation contained in the report. If, however, they were minded to disagree with the recommendation because of a disagreement over a material matter or fact, or as a result of taking into consideration new evidence received after the hearing, a similar practice would be followed as set out at paragraph 8.11 above. Similarly, the Scottish Ministers would wish to invite comments from the parties if a matter was left unresolved which was material to the decision, or if it was otherwise considered that further information was needed in order to arrive at a properly informed decision.

Publicity for making or refusing orders

8.17 In all cases, regardless of the procedure followed, the Scottish Ministers' decision will be announced by way of a decision letter that gives the full reasons for the decision. Section 12(1) requires the Scottish Ministers, as soon as practicable after determining whether to make the order, to give notice of the determination to:

(a) the applicant;

(b) every statutory objector who attend the inquiry who made an objection which was referred to an inquiry or hearing;

(c) the local authority for any area, to the National Park authority for any National Park and to the Transport Partnership for any region, in which the proposals contained within the application are or were intended to have effect;

(d) the Office of the Rail Regulation if the order relates or would have related to the construction or operation of a railway; and

to publish a notice of the determination in the Edinburgh Gazette.

8.18 Under section 12(2), the notice given to the applicants and others (that is, the decision letter) must include the reasons for the decision and the considerations on which it is based, information about the public participation process and information about the right to challenge the validity of the decision and the procedures for doing so.

8.19 Where the application relates to an order which would authorise an Annex I project in the Environmental Impact Assessment Directive (Council Directive 85/337/ EEC (as subsequently amended) or an Annex II project that would have significant environmental effects, the notices under paragraph 8.17 above must also state that, before the Scottish Ministers made the determination, they:

• considered the environmental statement ( ES);
• complied with any obligations under section 8 in respect of any valid objection made that related to the ES; and
• considered, or referred to an inquiry or hearing, any representation made (not being an objection) which related to the ES.

8.20 Where an order is to be made, the Scottish Ministers' decision notice must give such particulars of the terms of the order as the Scottish Ministers consider appropriate and the name and address of the applicant. If the order would authorise an Annex I project or an Annex II project that would have significant environmental effects, the notice must also include a description of the main measures to avoid, reduce and, if possible, remedy the major adverse environmental effects (if any) of the project.

8.21 The applicant must publish, as required under section 12(12)(a), a notice of the determination in a local newspaper circulating in the area (or each of the areas) in which the proposals in the order application are, or were intended, to have effect. The notice should be published as soon as practicable after the applicant receives the Scottish Ministers' decision letter. The notice must include the terms of the Scottish Ministers' decision and a copy of the statement and information contained in the notice published in the Edinburgh Gazette.

8.22. In practice, the Scottish Ministers would in all cases send a copy of the decision letter to all statutory objectors, to all other persons who appeared at an inquiry or hearing or whose objections were considered under the written representations procedure, and to anyone else who specifically requests a copy.

8.23 The Scottish Ministers, when promoting their own orders, must publish, as required under section 12(12)(b), a notice containing similar information to that discussed in paragraph 8.21

8.24 In an inquiry or hearings case, the applicant will be sent a copy of the Reporter's report (and any Assessor's report) with the decision letter, and all persons who appeared at the inquiry or hearing will be sent a copy of the Reporter's conclusions and recommendations with the decision letter. Furthermore, under Inquiries and Hearings Rules 19 and 31 (respectively inquiries and hearings), any statutory objector must be supplied with a copy of the Reporter's report if they apply to the Scottish Ministers in writing within 4 weeks of the date of the decision. The TAWS Unit will put the Reporters' reports (once published) on to its web site. Any person who wishes to inspect the documents appended to a Reporter's report should apply in writing to the Scottish Ministers within 6 weeks of the decision.

8.25 Where the Scottish Ministers' decision is to make the order, the actual making (i.e. signing) of the order will usually take place shortly after the issue of the decision letter. This is to allow time for publication of the notice in the Edinburgh Gazette. The order will then come into force on a later date specified in the order, which will usually be 21 days from when the order is made (see, however, Part 9 where the order is subject to affirmative procedure)

8.26 As soon as practicable after the making of an order, the applicant, as required under section 12(13) must deposit:

(a) in the office of the Clerk of the Scottish Parliament a copy of the order and of any plan or book of reference prepared in connection with the application for the order However, this requirement does not apply where the order is contained in a statutory instrument which falls to be laid before the Scottish Parliament under para 8.1; and

(b) with each local authority and National Park authority in whose area any works authorised by the order would be carried out, a copy of each of the documents referred to in (a), or so much of them as is relevant to such works.

The authorities with whom documents are deposited under (b) must make them available for inspection, free of charge, at all reasonable hours (section 12(16) refers).

8.27 Where any plans or the book of reference were revised before the order was made, the documents deposited in the Scottish Parliament with each local authority and National Park authority must be the latest version. In practice, the applicant would need to deposit the book of reference and plans that have been certified by the Scottish Ministers as copies of those referred to in the order as made. A standard provision in the order would require the applicant to submit the final versions of these documents for certification as soon as practicable after the making of the order.

8.28 If the applicant for the TAWS order has also applied for a planning direction under section 57(2A) of the Town and Country Planning (Scotland) Act 1997, or a direction deeming the grant of hazardous substances consent under section 10(2A) of the Planning (Hazardous Substances)(Scotland) Act 1997, the Scottish Ministers will announce a decision on the related direction in the decision letter on the order. The decision letter will also set out any conditions to be attached, if the direction is to be given. However, as the direction cannot be issued before the order is made, the direction will normally be sent to the applicant, and copied to the planning authority, on the same day as the order is made (assuming that the Scottish Ministers so decide). The direction will include the conditions to be attached to the granting of deemed planning permission (or deemed hazardous substances consent).

Validity of orders

8.29 The Scottish Ministers' decision is final unless it is set aside by the Court of Session. Any person who is aggrieved by an order made under section 1 may challenge the validity of the order, or of any provision contained in the order on the ground that:

(a) it is not within the powers of the TAWS, or

(b) any requirement imposed by or under the TAWS has not been complied with.

Any such legal challenge should be made, by application to the Court of Session, within the period of 42 days from the day on which the notice of the determination required by (section 12(1)(c) or 13(5)(a) is published in the Edinburgh Gazette).

8.30 Upon such application, the Court of Session may by interim order suspend the operation of the TAWS order, or of any provision contained in it, either generally or in so far as it affects any property of the person applying to the Court, until the final determination of the Court proceedings. The Court of Session may also quash the order or any provision contained in it, either generally or in so far as it affects the property of the applicant, if the Court is satisfied that the order or any provision in it is not within the powers of the TAWS, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any requirement imposed by or under the TAWS.

8.31 Where a statutory right of challenge is not available - for example, because the Scottish Ministers have decided not to make an order - an aggrieved person may seek to initiate judicial review proceedings, if appropriate. It is suggested that anybody who is contemplating applying to the Court of Session to challenge the validity of an order, or applying for leave to review judicially a decision not to make an order, seeks legal advice.

Re-determination

8.32 If the Scottish Ministers' decision on a TAWS order application which has been subject to an inquiry or hearing is quashed by a court, rules 20 and 32 of the Inquiries and Hearings Rules sets out the procedure that would need to be followed, respectively, of an inquiry or a hearing. The Scottish Ministers would send to the persons entitled to appear at the inquiry or hearing and who appeared at it, or a person entitled to appear at a hearing, a statement of the matters on which further representations are invited, and afford them the opportunity (within 3 weeks) of making written representations on those matters or asking for the inquiry or the hearing to be re-opened. The Scottish Ministers would then consider whether to re-open the inquiry. At least 4 weeks' notice of a re-opened inquiry would need to be given, otherwise the usual publicity requirements for an inquiry or hearing set out respectively in rules 11, 13 and 25 of the Inquiries and Hearings Rules would apply. If a decision is quashed where an inquiry has not been held, the Scottish Ministers would decide upon an appropriate procedure to follow.

Guide timescales for determinations

8.33 There are no mandatory time limits within which the Scottish Ministers must make or refuse a TAWS order. There are many factors which can influence how long an application remains at the 'decision stage', including whether or not the Scottish Ministers need to refer back to parties for further information or comments. The Scottish Ministers will make every endeavour to seek to determine applications within the timescales given at 8.34.

8.34 In each of the following situations, the target timescale should be taken to mean the time taken to issue a decision letter: