Subordinate Legislation
Transport and Works (Scotland) Act 2007 (Access to Land on Application)<br />Order 2008 (Draft)<br />Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2008 (Draft)
Items 2 and 3 are our consideration of two items of subordinate legislation. Stewart Stevenson, the Minister for Transport, Infrastructure and Climate Change, will remain with us, although he is now accompanied by different officials, Martin Milarky and Andrew Brown.
I invite the minister to make some introductory remarks on both instruments, after which we will move to questions from members.
I will give a short history of the Transport and Works (Scotland) Act 2007. In previous years, promoters of transport schemes such as tram or rail schemes had to pursue a private bill through the Scottish Parliament, which was a cumbersome, unwieldy and time-consuming process. In the previous session, the Parliament voted to remedy those deficiencies by approving the Transport and Works (Scotland) Act 2007. For ease of use, it appears that I am henceforth to refer to the act as the TAWS.
In approving the TAWS, Parliament also agreed that ministers should be given certain powers under it to provide an appropriate and effective regulatory framework that would deliver a modern, transparent and efficient process. The orders that we are considering today complete the suite of six instruments that will fully deliver the new regulatory regime. They will improve how we bring forward transport systems in Scotland in years to come. The orders complement existing provisions in the Roads (Scotland) Act 1984 in respect of road and bridge orders.
The draft Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008 provides a regime that allows potential promoters access to land to undertake relevant survey and investigative work to determine a site's suitability for a guided transport project. Such powers will be granted by the Scottish ministers only when a promoter has failed to reach agreement with the owner or occupier of the land or property where such work is required.
I assure the committee that such powers will not be granted lightly and that an access to land application is likely to be the exception rather than the rule. My justification for that assurance is that the order provides that no application for such an authorisation may be made to the Scottish ministers unless the promoter has attempted to obtain access by agreement. We will expect a promoter to have made every reasonable effort to reach agreement with the owner or occupier to enter the land by negotiation.
We will also wish to be satisfied that it is in the public interest for such survey or explanatory work to be carried out. We have the power to attach conditions and limitations to the authorisation to regulate access. That power would be used in cases in which, for example, we sought to minimise the disruption that such work might cause.
The benefits of the provisions are clear. Most transport projects involve a degree of disruption, inconvenience and, in some instances, loss of property. Before people embark—quite literally—down a route that has not been fully examined, the order will ensure that both the promoter and local interests have the opportunity to consider in greater detail and with more precision the suitability of the location of the proposed development and to assess the impact of any such development on the local area and its people.
We see the measures as being wholly consistent with the spirit and provisions of the 2007 act. Public engagement, particularly with those who may be directly or indirectly affected, is the starting point for any potential promoter of transport projects. Such projects should be able to be influenced by local interests. The geological suitability of land for any linear project such as a railway line or guided busway must be an early starting point for any development. Although we anticipate that entry to land will be obtained by negotiation, instances may arise in which mutual agreement cannot be reached and promoters need to use the powers under the order to undertake exploratory work.
I stress that the approval of the Scottish ministers will be granted only when a promoter can clearly and genuinely demonstrate that every effort has been made to resolve the matter by discussion and mutual agreement. Responsibility rests with the promoter to be proactive at the outset in addressing the needs of those whose property or land may be affected. I hope that the committee will agree with me that genuine benefits will be derived from such an approach.
The draft Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2008 relates to two quite separate purposes. The key point is that it will provide the Scottish ministers with powers that mirror those in the draft Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008. Such powers will be used where projects are promoted by the Scottish ministers—most likely, through Transport Scotland—and where similar powers of access for survey or explanatory work are sought. The same requirement will apply, namely that every effort must first have been made to secure access to the land through discussion and negotiation.
The second aspect is a power that I hope will be used sparingly, if at all. Pursuant to section 18 of the 2007 act, the access to land regime covers entry by the Scottish ministers for any circumstance in which they propose to introduce an order under the TAWS. Such a power would be used in the circumstances in which a transport project has been abandoned or neglected by the project's promoter, or for the purposes of suspending or discontinuing operations. In the event that a land survey is appropriate to develop proposals for an order under section 6 of the TAWS to address those circumstances, the Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2008 provides a mechanism whereby the Scottish ministers may gain entry to land if agreement is not reached with the owner or occupier of the land. Remedial action would be a matter of an order pursuant to section 6 of the TAWS, and any land or site investigation should assist with that.
The access order makes no procedural distinction between the two aspects of the draft instrument, so the same course of action is to be followed by the Scottish ministers when they are seeking entry for site investigation, whether for a proposed new transport project or for an abandoned or neglected project.
I remind the committee that the original policy, as set out in the policy memorandum to the 2007 act, is
"to provide a modern efficient process to authorise transport-related developments which has the confidence of promoters and those directly affected by proposed developments as well as the wider public."
These final two orders complete the delivery of an efficient, fair and straightforward decision-making process that requires and encourages public engagement and participation.
I hope that that is sufficient for the committee, convener. I will answer any questions that you may have.
Thank you. I remind members that the orders are subject to the affirmative procedure, which means that Parliament must approve them before their provisions can come into force. The Subordinate Legislation Committee has not drawn the orders to our attention. Do members have any questions?
Will the provisions of the draft Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2008 cover the extension or dualling of the A9, for example? That might involve a scenario in which you want access to land and require some form of survey. Would that not be covered under existing legislation? Why do we need separate legislation?
The order would not apply in the case of the A9 because it applies to guided travel—in other words, guided buses and railways. It would apply only if there was an interaction on the A9 that required work on a tramway, a guided busway or a railway. Therefore, the answer to your question is no.
Both orders have provisions on compensation and refer to
"damage … caused to land or corporeal moveables".
Although I think that I know what that means, could you clarify it for me by defining "corporeal moveables"?
It means anything that is not heritable.
We now move to the formal debate. I invite the minister to move motions S3M-1730 and S3M-1731.
Motions moved,
That the Transport, Infrastructure and Climate Change Committee recommends that the draft Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008 be approved.
That the Transport, Infrastructure and Climate Change Committee recommends that the draft Transport and Works (Scotland) Act 2007 (Access to Land by the Scottish Ministers) Order 2008 be approved.—[Stewart Stevenson.]
Motions agreed to.
Our committee report will confirm that we agreed to motions S3M-1730 and S3M-1731.
I thank the minister and his officials for joining us. We will suspend briefly to allow the changeover of witnesses.
Meeting suspended.
On resuming—