Giving it the works

In the last few years, the Scottish Parliament has been involved in the consideration of a number of private bills to authorise major transport projects for rail and tram. From 28 December 2007, the way in which such transport schemes are authorised underwent a significant change, when the Transport and Works (Scotland) Act 2007 (“the TAWS Act”) came fully into force.

The need for change

Since 1999, the Scottish Parliament has approved a total of seven private bills to authorise new transport schemes – the Glasgow Airport Rail Link, the Borders Rail Link, the Stirling-Alloa-Kincardine Railway, the Edinburgh Airport Rail Link, the Airdrie to Bathgate Railway, and tram schemes for Edinburgh. With the coming into force of the TAWS Act, major transport projects in Scotland involving rail, tram, other guided transport systems and canals will not require to be authorised through a private bill in the Scottish Parliament. Instead, those seeking the necessary powers to promote such schemes can apply directly to the Scottish Ministers for an order under s 1 of the TAWS Act. However, private bills will still be used for other matters.

These changes were initially considered during an inquiry by the Procedures Committee of the Scottish Parliament, which assessed whether the private bill process was fit for purpose in relation to transport schemes. The committee heard evidence that private bills were not suited to transport schemes and that they were stretching the resources of the parliament too far, with large amounts of complex technical evidence being considered over a relatively short space of time. Some witnesses also considered that the system was cumbersome and inefficient.

Specialist unit

Reporting in 2005, the committee recommended the introduction of a statutory system for authorising transport schemes, placing the Scottish Ministers at the heart of the decision-making process, but with some parliamentary involvement retained where appropriate. A similar system has been in operation in England and Wales for many years under the Transport and Works Act.

The new Scottish procedure will be operated and overseen by a new Transport and Works Scotland Unit (TAWS Unit), located within the Scottish Government’s Transport Directorate.

Promoters seeking approval for relevant transport schemes will deal directly with the TAWS Unit. No later than six weeks before submitting a formal application for a scheme, a promoter will be required to submit pre-application documentation. The Unit will provide comments on matters such as consultation, drafting, presentation, scope and contents of the documentation. The aim of the pre-application phase is to ensure that all the relevant information is contained in an application, so that all parties concerned, including possible objectors, can make informed comment on the proposed scheme before it is submitted to the Scottish Ministers.

Full scrutiny

Once a formal application has been submitted, the Unit will provide advice to the Scottish Ministers on consideration of the application. The new Act and rules made under the Act set requirements for an objection period, subsequent consideration and determination of a scheme. There is provision for the Scottish Ministers to hold an inquiry into a scheme in respect of any application. Indeed, they must hold an inquiry if they receive an objection from certain designated bodies, or from anyone whose property is going to be subject to compulsory acquisition under the scheme. An inquiry will be held in front of a reporter appointed from the Scottish Government’s Directorate for Planning and Environmental Appeals (formerly called the Scottish Executive Inquiry Reporters Unit).

Where a transport scheme is a “development of national significance”, i.e. a national development contained in Scotland’s National Planning Framework, the procedure for approval of a scheme will also require the relevant order to be laid in the Scottish Parliament, for approval by the parliament by way of a resolution. The parliament will already have considered issues relating to the need for the scheme in its prior consideration of the National Planning Framework.

As well as relieving the burden on the parliament, the new framework aims to provide a more efficient, fair and less cumbersome process for considering transport projects than the private bill procedure, with early engagement with the public playing a key part in this process. One of the advantages of similar arrangements under the Transport and Works Act in England and Wales has been the creation of a dedicated TWA Unit in the UK Department for Transport. The creation of a dedicated unit in Scotland to manage the process and scrutinise applications is an essential part of the new framework.

Fiona Killen, Partner, Anderson Strathern LLP