Transport, Infrastructure and Climate Change Committee, 27 Nov 2007

Meeting date: Tuesday, November 27, 2007

Official Report 309KB pdf

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Subordinate Legislation

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Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007 (Draft)<br />Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 (Draft)

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Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007 (Draft)

Good afternoon. I welcome everyone to the 12th meeting of the Transport, Infrastructure and Climate Change Committee. I have received apologies from the convener, Patrick Harvie. I ask committee members and members of the public to turn off their mobile phones and pagers.

The first item on our agenda is consideration of the draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007, the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 and the draft Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007.

I warmly welcome to the meeting Stewart Stevenson, Minister for Transport, Infrastructure and Climate Change, who is accompanied by Frazer Henderson, from the transport strategy division, and Andrew Brown, who is the senior principal officer.

The instruments have been drawn to the committee's attention by the Subordinate Legislation Committee and have been laid under the affirmative procedure, so Parliament must approve them before their provisions come into force. I invite the minister to make some brief opening remarks on the instruments. Members will then have the opportunity to ask questions, after which there will be a formal debate.

Good afternoon.

Previously, promoters of transport schemes such as tram or rail developments were obliged to pursue a private bill in the Scottish Parliament. The mechanism was cumbersome, unwieldy and time-consuming, and in the previous session, Parliament voted to remedy those deficiencies by approving the Transport and Works (Scotland) Act 2007. In giving that approval, Parliament also agreed that ministers be given certain powers under the act to ensure that they could put in place an appropriate and effective regulatory framework to deliver a modern, transparent and efficient process.

The three draft instruments will, in combination, deliver the new regulatory regime. The draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 sets out in a straightforward manner the statutory procedure for making and considering applications for an order under section 1 of the 2007 act. The application of the rules will ensure that procedures will operate efficiently, effectively and fairly.

It is in everyone's interest to have an efficient process; indeed, potential promoters acknowledge that the process's efficiency will, to a large extent, be conditioned by the standard of information that is provided in support of applications. To that end, we have set great store by our front-loading of the process, which is why we have made provision for pre-application scrutiny of documentation. Moreover, promoters should consult interested parties not only to inform their proposals' design and development, but to reduce the likelihood of objections being fostered through lack of information or engagement. Although we are asking promoters to provide a comprehensive set of information with their applications, potential promoters recognise that such investment at the outset will reap benefits later in the process.

The applications and objections procedure rules also provide a mechanism for objectors to a proposal to make their objections known. Under the private bills regime, objectors were charged £20 to lodge an objection. That barrier will be removed under the new rules. We believe that emphasis on consultation and engagement should ensure that promoters can consider proactively ways in which to address the interests of any potential objections in advance of applications.

We also recognise that efficiencies can be realised if a promoter, in making an application for an order, can obtain at the same time all the other consents that are necessary to enable the proposal to progress. Along with section 2(3) of the 2007 act, the draft Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007 make provision to facilitate pulling together, in so far as it is possible, consideration of consents for such projects. The committee will, I hope, agree that both promoters and objectors will derive genuine benefits from that approach.

The draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007 will regulate the conduct of proceedings prior to, during and after an inquiry or hearing. The rules will provide statutory objectors with a fair and public opportunity for detailed examination of their concerns by an independent reporter. Under the 2007 act, the Scottish Government is obliged to consult the Council on Tribunals before making such rules. In its response, the council commented:

"The rules as drafted are properly comprehensive".

We welcome that endorsement.

Together, the instruments will give substance to the policy behind the 2007 act. I remind the committee that that policy, as set out in the original policy memorandum, 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."

The instruments will ensure that we have an efficient, fair and straightforward decision process that requires and encourages public engagement and participation, recognises the rights of interested parties and delivers well-founded decisions that are informed by evidence and are publicly explained.

Over the past 18 months, my officials have worked closely with a range of consultees on construction and refinement of the rules and regulations. The proposed legislation is the better for that engagement. I wish to record publicly my thanks to those involved for their input and advice. I have given a broad overview, which I hope is sufficient to start us off. I am happy to answer any questions. If the questions get unduly technical, I will, of course, ask my officials to assist as required.

I will start with a question on consultation. How widely did the Scottish Government consult on the provisions of the Transport and Works (Scotland) Act 2007 and on the draft rules and regulations? Have changes been made based on the responses to the consultation exercise? People often talk about consultation, but consultation may be meaningless if no changes are made. I am interested in hearing what kind of responses emerged from the consultation.

When the bill was introduced some considerable time ago, draft regulations were provided at that time because it was recognised that it would, with key provisions being enacted via secondary legislation, be difficult to consider the impact of the legislation as the bill went through Parliament without understanding what the secondary legislation would say. At the outset, the subordinate legislation that is before the committee today—in not quite the same but in substantially similar form—was provided to Parliament and to the wider range of bill consultees. Therefore, the previous and current Administrations have consulted extremely widely.

If I may, I will ask one of my officials to explain the detailed changes that have been made since the original drafts.

In the light of the consultation, the provisions of what are now schedules 3 and 4 to the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 were strengthened to place a greater requirement on promoters to consult a much wider range of consultees. We listened to the responses to the consultation and enhanced those provisions.

Another issue was the setting of fees, which drew much concern because it is a financial matter, as members will appreciate. We listened to consultees' views on that and have set two fees for two classes of applicant. We agreed that a fee of £10,000 is appropriate for a public or private sector body. We listened to charities and the Heritage Railway Association and provided a lesser fee of £1,000 for interests such as theirs.

We were pleased that no substantive comments were received on the draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007. We listened to consultees' views about the draft Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007, but we have not taken forward their comments because they were not appropriate to the policy or legislation. However, we will consider them in the future when we consider how the process develops. We have told the consultees that we might return to the 2007 act.

It might be useful to draw the committee's attention to schedules 3 and 4 to the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007, which give extensive lists of people on whom documents are required to be served. They include people as diverse as

"The relevant constituency member, and each relevant regional member, of the Scottish Parliament",

the British Waterways Board, the Royal Yachting Association, many environmental organisations, Sustrans Scotland and Cycling Scotland. Those substantial lists are written into the secondary legislation, which helps to show the engagement that has taken place.

In general, the legislation has been well received here and elsewhere. Will the Scottish ministers be able to promote a transport scheme under the instruments? If so, how will they ensure impartiality in the decision-making process when they will be both promoter and decision maker?

Ministers—particularly the transport minister—will indeed be able to promote works under the arrangements. The same process will apply to them. As members are aware, the process has considerable public parts, so the minister's input is as likely to be public as that of anyone else who may promote an order.

We have several questions to get through, so I ask members to be as brief as possible. I hope that replies will also be brief.

Under the draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007, the Scottish ministers will have the final say on whether an application for a transport and works act order will be considered through written representations, a hearing or a full public inquiry. How will ministers decide which format is to be used?

To an extent, we are guided by objectors. It may be worth making the point that hearings are extremely rare in the planning system—the format is almost invariably the inquiry. Some statutorily listed objectors automatically cause an inquiry or a hearing to occur. Broadly, the approach that is being taken is similar to that which applies in the rest of the planning system.

Ministers will have the power to appoint an assessor to sit with the reporter in any public inquiry or hearing. Will you explain the role of an assessor and how they will influence the outcome of any inquiry or hearing?

The assessor is an important part of ensuring that the reporter has the technical support that may be appropriate to complex projects. The assessor's role is to provide technical input so that when the inquiry reporter produces the report, matters of fact are precisely that and are unlikely to be open to challenge on the basis that the reporter did not have the necessary technical information.

Let us stay with inquiries and hearings. How easy will it be for a member of the public to produce the statement of case that is required for a public inquiry? Will support be available to lay individuals to assist them in drafting the statement of case?

Again, the process will be broadly similar to what happens elsewhere in the planning system. There is publicly funded advice and assistance in matters of Scots law, eligibility for which requires passing of the usual tests. The Scottish Legal Aid Board can provide information on public funding. In addition, a unit exists within the Government to assist people with procedural matters related to objecting and inputting to the process.

The draft inquiries and hearings procedure rules contain provisions for dealing with situations in which the Scottish ministers dispute the facts on which a reporter has based recommendations. When will those procedures be used and how they will work in practice? You may have alluded to them.

The minister can obviously come to a different conclusion both after an inquiry and after a hearing. The provision for the inquiry is in section 18 of the 2007 act, and the provision for the hearing is, I think, in section 30. The reporter comes up with findings of fact and will make recommendations. There is a special procedure for use when the Scottish ministers disagree with a recommendation of findings of fact. Basically, it boils down to the fact that the Scottish ministers must give notice to people who have objected within three weeks of the minister's coming to that conclusion and give such people the opportunity to provide more input to the process. The minister can also cause an inquiry to be reopened if that appears to be appropriate.

Let us move on to questions about the draft applications and objections procedure rules. Are there any substantive differences between the information that must be provided to the Scottish ministers by applicants for an order under the Transport and Works (Scotland) Act 2007 and the information that was required under the previous private bill regime? If so, can you explain what they are and why they are necessary?

I repeat the obvious one to which I referred in my opening remarks: there will be no £20 fee for the privilege of lodging and objection. I invite my officials to answer the question.

We are asking for a report that will summarise the consultations that have taken place and a memorandum that will describe any alternative approaches that were considered and the reasons for their rejection. In terms of the consents, permissions and licences, many more of those can come forward—we are asking for more details on that. We are also asking for much more detailed information about the plan sets of the land that will be affected by proposals. Similar information was required under the private bills process, but we are requiring that more detail be provided.

What have you done to ensure that transport project developers make efforts to engage hard-to-reach groups in both the pre-application and formal consultation exercises? Will you monitor that in any way?

Great stress is placed on the pre-application process. As that process will take place in public, there are key opportunities for people to be involved in it. There is also considerable opportunity for involvement post applications.

The key point is that it will not be in the interests of a promoter to fail to consult at the pre-application stage. If promoters fail to engage at the outset, their plans will inevitably be at greater risk of not progressing in the way they want at a later and more expensive stage. I am pretty confident that the emphasis on the pre-application stage, the duty that is placed on the promoter, and it being in that person's interest, will mean that they will want to make every effort to reach out to hard-to-meet groups. However, because the process is public, there is a safety net that should mean that the groups should be able to come forward.

Do you intend to monitor that and review it if it is not successful?

We do not expect there to be huge numbers of orders so it will be relatively straightforward for us to see whether the pre-application phase is resulting in orders moving forward smoothly. It will show us whether the process is working and reaching all the people who feel that they will be affected by it. Of course, as part of the process, there is a report on the consultations that shows what has happened and with whom at the time of the applications.

You seem to be asking me about something further on in the process—post hoc. Are we going to look at how the project worked afterwards? Of course we are. There being so much in secondary legislation means that, if we need to, we will be able to respond to and refine the process, which would clearly be more difficult if the provisions were in primary legislation.

That is helpful; thank you.

In your introductory remarks, you referred to £10,000 and £1,000, and you said that you had responded to the consultation by reducing the latter fee. Will the fees that you charge private developers cover the costs that will be incurred by the Government in processing any application?

They will not, but we do not believe that the costs will be so substantial that they will be a drain on the public purse or cause alarm in any quarter. There will be a relatively small number of such applications: of course, it is in the interests of the public that we have a process that enables us to proceed.

It is also worth bearing in mind the fact that the majority of the projects for which an application will be made will be public projects, so the fee might not be where the costs are borne. By and large, the public purse is going to bear the costs in any event. The number of private applications is likely to be pretty modest.

On the consents under enactments regulations, can you explain why the Scottish Government chose coastal protection orders, hazardous substances consent and listed building and conservation area consent as the only other types of consent that ministers can grant alongside the award of a transport and works act order?

I will take advice from my officials but basically there is a range of parallel processes. Section 15 of the 2007 act allows us to deem planning permission. As Charlie Gordon pointed out, the consents under enactments regulations will allow other things to be considered at the same time. Section 2(3) of the act also provides a mechanism for other consents. It says that an order may

"apply, modify or exclude any enactment",

which means that an order might contain a provision overriding the need for a consent under other enactments, provided that power is devolved. Our philosophy was to get all the orders that we can running in parallel.

We now move to the formal debate on the draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007. I invite the minister to speak and to move motion S3M-790.

In the light of all that the questions have covered, I move,

That the Transport, Infrastructure and Climate Change Committee recommends that the draft Transport and Works (Scotland) Act 2007 (Inquiries and Hearings Procedure) Rules 2007 be approved.

I welcome the process that was started in the previous session; all members will recognise that it is going to be much easier to deal with such matters in the future. Obviously we will have to see how the process works but, generally speaking, we all agree that the 2007 act is a good step forward. It is a good day for Parliament because we are simplifying procedures.

I agree.

Motion agreed to.

Next is consideration of the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007. The rules were laid under the affirmative procedure, which means that Parliament must approve them before their provisions come into force. The Subordinate Legislation Committee has drawn the regulations to the attention of the committee as detailed in the cover note. Stewart Stevenson may take part in the debate. Questions on the regulations were put informally along with those on the previous instrument. I invite the minister to move motion S3M-791.

Motion moved,

That the Transport, Infrastructure and Climate Change Committee recommends that the draft Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 be approved.—[Stewart Stevenson.]

Motion agreed to.

Next is consideration of the draft Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007. The regulations were laid under 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 regulations to the committee's attention. Stewart Stevenson may take part in the debate. Questions on the regulations were put formally during our discussions on the first two instruments. I move to the formal debate and ask the minister to move motion S3M-792.

Motion moved,

That the Transport, Infrastructure and Climate Change Committee recommends that the draft Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007 be approved.—[Stewart Stevenson.]

Motion agreed to.

I record the committee's thanks to the minister, Mr Henderson and Mr Brown for attending this afternoon.

Meeting suspended.

On resuming—