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The Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007

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Point in time view as at 16/05/2017.

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Citation and commencementS

1.  These Rules may be cited as the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 and come into force on 28th December 2007.

InterpretationS

2.—(1) In these Rules (unless the context otherwise requires)–

“the Act” means the Transport and Works (Scotland) Act 2007;

[F1“additional information” means—

(a)

supplementary information required in accordance with rule 15(2); or

(b)

any other information provided by the applicant which, in the opinion of the Scottish Ministers is substantive information about a matter to be included in the EIA report in accordance with rule 9(2);]

“applicant” means a person making, or proposing to make, an application;

“application” means an application under section 4 of the Act;

“the appropriate authority” has the same meaning as in section 3(4) of the Act (Crown land);

“benefited property” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003 (interpretation) M1;

“bridleway” has the same meaning as in section 47 of the Countryside (Scotland) Act 1967 (interpretation) M2;

[F2“the consultation bodies” means—

(a)

every local authority in whose area the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;

(b)

every National Park authority for a National Park in which the works would be carried out were the order for which an applicant proposes to apply under section 4 or the Scottish Ministers propose to make under section 6 of the Act to be made;

(c)

the Scottish Environment Protection Agency;

(d)

Scottish Natural Heritage;

(e)

Historic Environment Scotland;]

“Crown interest” has the same meaning as in section 3(3) of the Act;

“cycle track” has the same meaning as in section 151 of the Roads (Scotland) Act 1984 (interpretation) M3;

“development management scheme” has the same meaning as in section 71(3) of the Title Conditions (Scotland) Act 2003;

“the Directive” means [F3Directive 2011/92/EU of the European Parliament and of the Council] on the assessment of the effects of certain public and private projects on the environment;

“documents” includes photographs, drawings, maps and plans;

[F4“EEA State”, in relation to any time, means—

(a)

a state which at that time is a member State; or

(b)

any other State which at that time is a party to the agreement on the European Economic Area signed at Oporto on 2nd May 1992, together with the Protocol adjusting that agreement signed at Brussels on 17th March 1993, as modified or supplemented from time to time;

“EIA application” means an application under section 4 of the Act for works which—

(a)

would constitute a project of a type mentioned in Annex I to the Directive; or

(b)

would constitute a project of a type mentioned in Annex II to the Directive and are likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

“EIA report” has the meaning given in rule 9;

“environmental impact assessment” has the meaning given in rule 2A;]

“equipment” includes apparatus and any structure for the lodging in it of equipment or for gaining access to equipment;

“expiry date for objections” means the date, being a date not less than 42 days after the date on which the application in question is made, which the applicant specifies in the notice published pursuant to rule 12(1) as the final date for making objections;

“footpath” has the same meaning as in section 151 of the Roads (Scotland) Act 1984;

“holder”, in relation to a personal real burden, has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003 M4;

“in writing” includes electronic transmission;

“Member State” has the same meaning as in section 5(3) of the Act;

“navigation authority” has the same meaning as in section 9(5) of the Act;

“occupier” includes–

(a)

statutory undertakers (not being an owner) having a right to keep equipment on, in or over land; and

(b)

a person having the right to construct or maintain, at a specific position on an inland waterway, a mooring post, gangway, landing stage or other erection or installation for a vessel (not being anything which when not in use is normally carried on the vessel);

“operative date” means the date falling 21 days after the expiry date for objections or such later date as the Scottish Ministers may specify;

“operator”–

(a)

in relation to a transport system, means any person carrying on an undertaking which includes the system, or any part of it, or the provision of transport services on the system; and

(b)

in relation to an inland waterway, means any person authorised by any enactment to work, maintain, conserve, improve or control the inland waterway;

“owner”, in relation to any land, means any person who under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes a lessee under a lease the unexpired period of which exceeds three years;

“personal real burden” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003;

“planning authority” has the same meaning as for the purposes of Part 3 of the Town and Country Planning (Scotland) Act 1997 (control over development) M5;

“regional Transport Partnership” means a Transport Partnership created under section 1(1)(b) of the Transport (Scotland) Act 2005 M6;

[F5“relevant assessment” means an assessment, or verification, of effects on the environment carried out pursuant to Union legislation (other than legislation implementing the requirements of the Directive) which is relevant to the assessment of the environmental impacts of the proposed development;]

[F6“relevant person”, in relation to any property, rights or interests to which section 90B(5) of the Scotland Act 1998 applies, means the person who manages that property or those rights or interests;]

“river” means any river (including any part of a river which is tidal or which has been canalised), loch, lake, stream, burn, ditch, culvert, drain, sluice, weir or any other passage by which water drains, but does not include–

(a)

a canal or inland navigation which is not a canalised part of a river;

(b)

a public sewer or a sewer or pipe used primarily for the drainage of a building or any premises appurtenant to a building, or of a road;

“road managers” has the same meaning as in section 108(4) of the New Roads and Street Works Act 1991 M7;

“roads authority” has the same meaning as in section 151(1) of the Roads (Scotland) Act 1984 M8;

“scoping opinion” has the meaning given in rule 6(1);

“screening decision” has the meaning given in rule 5(3);

“statutory undertakers” has the same meaning as in section 214 of the Town and Country Planning (Scotland) Act 1997 M9 except that it includes a public communications provider within the meaning of section 151(1) of the Communications Act 2003 (interpretation) M10;

“tidal waters” means such part of–

(a)

the territorial sea of the United Kingdom as is adjacent to Scotland; and

(b)

the internal waters of the United Kingdom as are in or adjacent to Scotland insofar as they are tidal or constitute part of the sea;

“title condition” has the same meaning as in section 122(1) of the Title Conditions (Scotland) Act 2003;

“transport system” means a railway, tramway or trolley vehicle system or any system (other than a railway or tramway) using a mode of guided transport;

[F7“Union legislation” means any enactment in the domestic legislation of Scotland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU treaties;]

“works” means any works that may be authorised by an order made under section 1 of the Act but in rules 5, 6, 9 and 14, Schedule 1 and in paragraphs 6, 9, 16(f), 29 and 30 of Schedule 5, shall also include any matter that may be authorised by such an order; and

“works affecting”, in relation to any land, means works proposed to be carried out in, on, over or adjacent to that land.

(2) Where these Rules require that notice be served, published or displayed in a prescribed form, the notice shall be served, published or displayed (as the case may be) duly completed–

(a)in that form;

(b)in a version of that form adapted to meet the circumstances of the particular case; or

(c)in a form which has substantially the same effect as that form (whether the form is adapted or not),

and, except where these Rules require that the notice in question be published in a newspaper [F8or on a website], duly signed by or on behalf of the person required to serve the notice.

Textual Amendments

Marginal Citations

M21967 c. 86; section 47 was relevantly amended by the Land Reform (Scotland) Act 2003 (asp 2), schedule 2, paragraph 5.

M4The definition of “holder” was amended by S.S.I. 2003/503.

M51997 c. 8. See section 1 of that Act for the meaning of “planning authority”. The functions of a local authority under Part 3 of that Act have been transferred to and are exercisable by the Loch Lomond and The Trossachs National Park Authority by virtue of S.S.I. 2002/201 in respect of the National Park designated by that instrument.

M8The definition of “roads authority” was relevantly amended by the Local Government etc. (Scotland) Act 1984 (c. 39), Schedule 13, paragraph 135 and S.I. 2001/1400.

[F9Environmental impact assessmentS

2A.—(1) An environmental impact assessment is a process consisting of—

(a)the preparation of an EIA report by the applicant;

(b)the carrying out of consultation, publication and notification as required by rules 5, 6 and 11 to 15, and where relevant rule 14;

(c)the examination by the Scottish Ministers of the information presented in the EIA report and any other environmental information being any additional information, any representations made by any body required by these Rules to be invited to make representations and any representations duly made by any other person about the environmental effects of the proposed works which are the subject of the EIA application;

(d)the reasoned conclusion by the Scottish Ministers of the significant effects of the proposed works which are the subject of the application on the environment, taking into account the results of the examination referred to in sub-paragraph (c) and, where appropriate, their own supplementary examination; and

(e)the integration of the Scottish Ministers’ reasoned conclusion into the determination under section 11 of the Act.

(2) The environmental impact assessment must identify, describe and assess in an appropriate manner, in light of the circumstances relating to the proposed works which are the subject of the EIA application, the direct and indirect effects of those works on the factors specified in paragraph (3) and the interaction between those factors.

(3) The factors are—

(a)population and human health;

(b)biodiversity, and in particular species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC;

(c)land, soil, water, air and climate; and

(d)material assets, cultural heritage and the landscape.

(4) The effects to be identified, described and assessed under paragraph (2) include the expected effects deriving from the vulnerability of the proposed works to risks, so far as relevant to the proposed works, of major accidents and disasters.

(5) Unless the Scottish Ministers consider that the likely significant effects of the proposed works on the environment are not fully identifiable at the time of their determination under section 11(2) of the Act, the environmental impact assessment to be carried out in relation to the determination of an EIA application must identify the likely significant effects of the application on the environment before such a determination is made.

(6) The Scottish Ministers must ensure that they have, or have access as necessary to, sufficient expertise to examine the EIA report.]

Textual Amendments

Pre-application documentationS

3.—(1) The applicant shall send to the Scottish Ministers not later than 42 days before making an application a draft of–

(a)the proposed order under section 1 of the Act;

(b)the explanatory memorandum to the order; and

(c)the statement and memorandum in respect of legislative competence,

that the applicant intends to submit in pursuance of rule 8(2).

(2) Where an applicant has sent drafts to the Scottish Ministers in accordance with the provisions of paragraph (1) but subsequently amends any of those drafts the applicant shall not be required to send any amended drafts to the Scottish Ministers before making an application unless the applicant is of the opinion that any amendment substantially alters the nature or effect of the proposed order.

[F10(3) The applicant must, not later than 42 days before making the application, send a draft of the applicant’s EIA report to—

(a)the Scottish Ministers; and

(b)the consultation bodies.

(4) The applicant must, within the timescale specified by the Scottish Ministers, send a draft of the EIA report to any other public body which the Scottish Ministers have advised the applicant is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies.]

Textual Amendments

Provision of environmental informationS

4.—(1) Where an applicant at any time serves notice in writing on any person who is not a Scottish public authority within the meaning of regulation 2(1) of the Environmental Information (Scotland) Regulations 2004 (interpretation) M11 that for the purposes of the proposed application the applicant wishes to be provided with environmental information, the recipient of the notice so served shall, within 28 days of the request, provide to the applicant any information which the recipient has and which either the recipient or the applicant considers relevant to a screening decision (if that decision has not yet been made) or to the preparation of the environmental statement.

(2) The recipient of the notice may seek reimbursement from the applicant of any reasonable costs associated with the provision of information.

Marginal Citations

[F11EIA application and screening decisionS

5.—(1) The occurrence of an event mentioned in paragraph (2) determines for the purpose of these Rules that an application is an EIA application.

(2) The events are—

(a)the making by the Scottish Ministers of a screening decision to the effect that proposed application will be an EIA application; or

(b)if no screening decision has been made by the Scottish Ministers, the submission by the applicant in relation to those proposed works of a report referred to by the applicant as an EIA report.

(3) The Scottish Ministers may direct that these Rules do not apply in relation to particular proposed works specified in the direction if the works will have as their sole purpose response to civil emergencies and where in the opinion of the Scottish Ministers compliance with these Rules would have an adverse impact on their purpose.

(4) Before an application (other than an application relating to works constituting a project which is of a type mentioned in Annex I of the Directive) is made, the Scottish Ministers may at the request of the applicant make a decision as to whether or not an environmental impact assessment is required (“a screening decision”).

(5) In making a screening decision as to whether an application for proposed works which would constitute a project of a type mentioned in Annex II to the Directive is an EIA application, the Scottish Ministers must—

(a)in all cases take into account—

(i)such of the selection criteria set out in Annex III to the Directive as are relevant to the proposed works; and

(ii)the available results of any relevant assessment of the effects of the proposed works; and

(b)where that decision is made following a request for a screening decision under paragraph (4), base their decision on the information provided in accordance with paragraph (6).

(6) A request for a screening decision under paragraph (4) must be accompanied by—

(a)a plan sufficient to identify the land;

(b)a description of the proposed works, including in particular—

(i)a description of the physical characteristics of the proposed works and, where relevant, of demolition works;

(ii)a description of the location of the proposed works, with particular regard to the environmental sensitivity of geographical areas likely to be affected;

(c)a description of the aspects of the environment likely to be significantly affected by the proposed works; and

(d)a description of any likely significant effects, to the extent of the information available on such effects, of the proposed works on the environment resulting from—

(i)the expected residues and emissions and the production of waste, where relevant; and

(ii)the use of natural resources, in particular soil, land, water and biodiversity.

(7) A request for a screening decision may, in addition to the information required in accordance with paragraph (6), also be accompanied by a description of any features of the proposed works, or proposed measures, envisaged to avoid or prevent significant adverse effects on the environment.

(8) The information referred to in paragraph (6) is to be compiled taking into account, where relevant—

(a)the selection criteria set out in Annex III to the Directive; and

(b)the available results of any relevant assessment.

(9) If the Scottish Ministers consider that the information provided by the applicant in or with a request under paragraph (4) is insufficient to enable them to make a screening decision they must, not later than 28 days after receiving the request, notify the applicant in writing of the points on which they require further information.

(10) On receiving notification under paragraph (9), the applicant must provide the Scottish Ministers with such of the further information specified in that notification as the applicant is reasonably able to supply and, where any of the further information so specified is not provided, a written explanation as to why the applicant is unable to provide the information.

(11) The Scottish Ministers must not give a screening decision until they have given notice of the request to, and invited the views of, the following bodies—

(a)the consultation bodies; and

(b)any other public body which the Scottish Ministers consider is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies,

and the Scottish Ministers must include in each such notice the information provided in or with a request under paragraph (4).

(12) Any body falling within paragraph (11) which is the recipient of a notice served under that paragraph must, not later than 28 days after receiving the notice, provide the Scottish Ministers with a written opinion as to whether or not, in the view of the recipient, the works in question should be the subject of an environmental impact assessment.

(13) Where a request for a screening decision relates to an order which would, if made, authorise works which for the purposes of the Directive could constitute two or more projects which are not interdependent, the Scottish Ministers may, if they consider it expedient, treat each such project separately for the purposes of this rule and, in such a case, the references in this rule to works shall be construed as relating to each such project separately, and the references to the screening decision shall be construed as relating to such a decision in relation to each such project.

(14) The Scottish Ministers may of their own volition make a screening decision following intimation to the applicant of the intention to make such a decision, and paragraphs (5) to (13) apply in relation to such intimation and decision as they apply where a request is made under paragraph (4).

(15) Where the Scottish Ministers make a screening decision—

(a)that screening decision must be accompanied by a written statement giving, with reference to such of the criteria set out in Annex III to the Directive as are relevant to the proposed works, the main reasons for that decision; and

(b)where the screening decision is to the effect that the proposed works do not require an environmental impact assessment, the statement referred to in sub-paragraph (a) must state any features of the proposed works or proposed measures which are envisaged to avoid or prevent significant adverse effects on the environment.

(16) The Scottish Ministers must notify the applicant in writing of their screening decision not later than 42 days after—

(a)receipt of the request made pursuant to paragraph (4);

(b)intimation of the intention to make a decision of their own volition under paragraph (14); or

(c)receiving the further information that the applicant is required to supply by virtue of paragraph (10).

(17) Following a screening decision the Scottish Ministers must publicise notice of that decision—

(a)in the Edinburgh Gazette;

(b)in such newspapers as they consider appropriate; and

(c)on a website maintained by the Scottish Ministers for the purpose of making publicly available information relating to applications to which these Rules apply.]

Textual Amendments

Scoping opinionS

[F126.—(1) Before submitting an application in relation to works for which an environmental impact assessment is or may be required, the applicant may make a request in writing to ask the Scottish Ministers for an opinion as to the information to be provided in the EIA report (a “scoping opinion”).

(2) A request under paragraph (1) must include—

(a)a plan sufficient to identify the land;

(b)a brief description of the nature and purpose of the proposed works and of their possible effects on the environment; and

(c)such other information or representations as the person making the request may wish to provide or make.

(3) If the Scottish Ministers consider that they have not been provided with sufficient information to provide a scoping opinion, they must, within 28 days of receipt of the request under paragraph (1), notify the applicant of the points on which they require further information.

(4) The Scottish Ministers must not give a scoping opinion in response to a request under paragraph (1) until they have consulted—

(a)the consultation bodies; and

(b)any other public body which the Scottish Ministers consider is likely to have an interest in the proposed works by reason of that body’s specific environmental responsibilities or local and regional competencies.

(5) Where any body consulted under paragraph (4) wishes to provide the Scottish Ministers with a written opinion as to the information to be contained in the EIA report, that body must do so no later than 28 days after being consulted.

(6) Before giving a scoping opinion the Scottish Ministers must take into account—

(a)the specific characteristics of the proposed works;

(b)the specific characteristics of works of the type concerned;

(c)the environmental features likely to be affected by the works; and

(d)any representations made to them in response to consultation undertaken under paragraph (4).

(7) Subject to paragraph (8), the Scottish Ministers must notify the applicant who made the request under paragraph (1) of the Scottish Ministers’ scoping opinion, not later than 42 days after the receipt of that request or, where the Scottish Ministers have given a notification under paragraph (3), 42 days after receipt of the further information mentioned in that notification.

(8) Where an applicant makes a request for a scoping opinion—

(a)under paragraph (1) at the same time as the making of a request for a screening decision under rule 5(4) in relation to the same proposed works; or

(b)after the applicant has made such a request for a screening decision but before the Scottish Ministers have notified the applicant of that decision in relation to the same proposed works,

the Scottish Ministers must notify the applicant, in writing, of the Scottish Ministers’ scoping opinion not later than 42 days after the date on which the Scottish Ministers notify the applicant of their screening decision to the effect that the works are an EIA application.

(9) Where the Scottish Ministers have given a scoping opinion to an applicant, they are not precluded from requiring that applicant to provide further information in connection with any EIA report that may be submitted by that applicant in connection with an application relating to the same, or substantially the same, works as were referred to in that scoping opinion.

(10) The Scottish Ministers may of their own volition give a scoping opinion and paragraphs (4) to (9) apply in relation to such a scoping opinion as they apply where a request is made under paragraph (1).

(11) The Scottish Ministers must publish notice of a scoping opinion—

(a)in the Edinburgh Gazette;

(b)in such other newspapers as they consider appropriate; and

(c)on the website referred to in rule 5(17)(c).]

Textual Amendments

Form of applicationS

7.—(1) An application for an order to be made under section 1 of the Act shall be made in writing, dated and addressed to the Scottish Ministers.

(2) In the application, the applicant shall give the name and the address to which all requests for further information, notices or other documents required to be served upon the applicant under the Act or these Rules are to be sent.

(3) The application shall be signed by the applicant or by the duly authorised agent of the applicant (details of the authorisation must be appended to the application).

Documents accompanying applicationS

8.—(1) The applicant shall submit with an application 3 copies of that application.

(2) The applicant shall submit with the application 4 copies of each of the following documents–

(a)a draft of the proposed order under section 1 of the Act;

(b)an explanatory memorandum that explains the purpose and effect of each article of and Schedule to the draft order;

(c)a memorandum setting out the aims of the proposals to which the application relates including any alternative approach considered and the reason for rejection;

(d)a statement that, in the view of the applicant, the provisions in the proposed order are within the legislative competence of the Scottish Parliament together with a memorandum setting out the reasons for that view;

(e)a report summarising the consultations that have been undertaken, including confirmation that the applicant has consulted all those named in column (2) of the tables in Schedules 3 and 4 where authority is sought for works or other matters described in column (1) of those tables, or if not, an explanation of why not;

(f)if the applicant is not an individual or a company regulated by the Companies Act 1985 M12 a declaration as to the status of the applicant;

(g)a list of all consents, permissions or licences required under other enactments for the purposes of the powers sought in the application, which at the date of the application are being sought or which have been obtained or refused, specifying for each relevant consent, permission or licence–

(i)from whom the consent, permission or licence is or was required;

(ii)the date of the application, or of the grant or refusal of the consent, permission or licence (as the case may be); and

(iii)the reference number (if any) of the application;

(h)any screening decision made by the Scottish Ministers under rule 5, any scoping opinion given by the Scottish Ministers under rule 6 and, in a case where the proposed works are to be subject to an environmental impact assessment, the applicant's [F13EIA report];

(i)confirmation that a draft of the applicant's [F14EIA report] has been sent to the persons specified in rule 3(3) [F15or rule 3(4)] together with a memorandum setting out any comments that any such person might have made in respect of that draft; and

(j)any direction given under rule 16.

(3) When making an application for an order the applicant shall submit with the application–

(a)the applicant's proposals for funding the cost of implementing the order; and

(b)where the application is for an order containing proposals to carry out works–

(i)the plans and sections described in paragraphs (1) and (4) of rule 10; and

(ii)an estimate of the cost of carrying out the works provided for in the proposed order.

(4) Subject to paragraph (5), in the case of an application for an order authorising the compulsory acquisition of land, or the right to use land, or to carry out protective works to buildings or structures, or the compulsory extinguishment, variation or disapplication of a title condition or development management scheme or the compulsory extinguishment of other private rights over land, the applicant shall submit with the application the plan and the book of reference respectively described in paragraphs (5) and (7) of rule 10.

(5) In the case of an application for an order providing for the extinguishment or diversion of rights of way or passage over a footpath, bridleway or cycle track, the applicant shall submit with the application a map of a scale not smaller than 1:2500 on which the path, way or track concerned and, in the case of a diversion, the new path, way or track, is clearly delineated.

(6) Where the applicant seeks a direction from the Scottish Ministers under section 57(2A) of the Town and Country Planning (Scotland) Act 1997 M13 that planning permission shall be deemed to be granted for the development provided for in the proposed order, the applicant shall submit with the application–

(a)a request in writing specifying the development for which the direction for such permission is sought;

(b)a statement of any proposed planning conditions;

(c)a statement of any matters which are intended to be reserved for subsequent approval by the planning authority; and

(d)in respect of those matters not intended to be reserved for subsequent approval by the planning authority, such further documents as have not otherwise been submitted with the application and which are necessary to support the request for the direction.

(7) Where the applicant seeks a direction from the Scottish Ministers under section 10(2A) of the Planning (Hazardous Substances) (Scotland) Act 1997 M14 that hazardous substances consent shall be deemed to be granted for the development provided for in the proposed order, the applicant shall submit with the application–

[F16(a)an application for hazardous substances consent under regulation 6(1), 7(1) or 8(1), as the case may, of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 2015; and

(b)the information and documentation specified in regulations 6(3)(a) and (b), 7(3)(a) and (b) (if required) or 8(3)(a) and (b), as the case may be, of those Regulations.]

(8) The applicant shall, as soon as practicable after the date of the application, submit to the Scottish Ministers a statement of compliance with the provisions of rules 11, 12(1) to (7) and 13 together with–

(a)copies of the notices placed in newspapers and the Edinburgh Gazette in accordance with rule 12; and

(b)confirmation of the date on which the notices required by rule 13 were served.

(9) Where the Scottish Ministers are of the opinion that any of the information submitted pursuant to this rule, other than the applicant's [F17EIA report], is not adequate for its purpose the Scottish Ministers may within 21 days of receipt of an application–

(a)direct the applicant to provide further information; and

(b)where the Scottish Ministers make such a direction they may require the applicant to comply with any of the provisions of rules 11 and 12 in respect of the further information required.

Textual Amendments

Marginal Citations

M141997 c. 10; section 10(2A) was inserted by the Transport and Works (Scotland) Act 2007 (Consents under Enactments) Regulations 2007 (S.S.I. 2007/[ ]), regulation 4.

[F18Environmental impact assessment reportS

9.—(1) An EIA application must be accompanied by an environmental impact assessment report (“EIA report”).

(2) An EIA report is a report prepared in accordance with this rule by the applicant which assesses the environmental impact of the proposed works that are the subject of the application and which includes (at least)—

(a)a description of the works comprising information on the site, design, size and other relevant features of the works;

(b)a description of the likely significant effects of the works on the environment;

(c)a description of the features of the works and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;

(d)a description of the reasonable alternatives studied by the applicant, which are relevant to the works and their specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the works on the environment;

(e)a non-technical summary of the information referred to in sub-paragraphs (a) to (d); and

(f)any other information specified in schedule 1 relevant to the specific characteristics of the works and to the environmental features likely to be affected.

(3) Where a scoping opinion has been issued, the EIA report must be based on that scoping opinion and must include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the works on the environment, taking into account current knowledge and methods of assessment.

(4) With a view to avoiding duplication of assessments, account is to be taken of the available results of other relevant assessments under Union legislation or national legislation in preparing the EIA report.

(5) In order to ensure the completeness and quality of the EIA report—

(a)the applicant must ensure that the EIA report is prepared by competent experts; and

(b)the EIA report must be accompanied by a statement from the applicant outlining the relevant expertise of such experts.]

Textual Amendments

Plans, sections and book of referenceS

10.—(1) Subject to paragraphs (6) and (8), the plans referred to in rule 8(3)(b) are–

(a)a plan drawn to a suitable scale not smaller than 1:50000 showing clearly the location of any works and, if provision is made for such works in the proposed order, in particular the general line of the route of any works that are of a linear nature and which exceed 2 kilometres in length; and

(b)a plan drawn to a suitable scale not smaller than 1:2500 showing clearly in relation to existing features, the location, the alignment, if any, and limits of deviation of the works described or for which provision is made in the proposed order.

(2) All plans and sections described in this rule may be submitted in black and white and shall be stated in metric units.

(3) All plans described in this rule shall contain a reference to the National Grid base or, where this is not practicable, to the latitude and longitude of the site of the proposed works.

(4) Subject to paragraphs (6) and (8), the sections referred to in rule 8(3)(b) are sections having a suitable vertical scale not smaller than 1:500 and showing by reference to Ordnance Survey or Chart datum–

(a)on the same horizontal scale as the plan described at paragraph (1)(b) the levels of the proposed works, including in particular where relevant–

(i)ground levels;

(ii)the height of every intended bridge, aqueduct, viaduct, embankment and elevated guideway;

(iii)the depth of every intended cutting and tunnel;

(iv)the levels of the bed of any tidal waters or inland waterway where works are proposed; and

(v)the height of every structure or device intended to be erected above, on or below the surface of, or on or beneath the bed of tidal waters or an inland waterway;

(b)on a horizontal scale not smaller than 1:500 the span and vertical clearance of every intended bridge, aqueduct, viaduct, gantry and other structure or device above ground level for which provision is made in the proposed order;

(c)in cross section on a horizontal scale not smaller than 1:500 the depths and water levels of every intended inland waterway for which provision is made in the proposed order;

(d)in cross section on a horizontal scale not smaller than 1:500 every intended tunnel for which provision is made in the proposed order; and

(e)on a horizontal scale not smaller than 1:500 any altered gradient of a carriageway or a way forming part of a railway, tramway or other guided transport system on either side of every level crossing, bridge, tunnel or underpass which would carry the carriageway or way or through which it would pass, for which provision is made in the proposed order.

(5) Subject to paragraph (6) the plan referred to in rule 8(4) is a plan drawn to a suitable scale not smaller than 1:2500 (and which may be the plan described in paragraph (1)(b)) showing clearly any land–

(a)over which it is proposed to acquire powers of compulsory acquisition, or any right to use the land or to carry out protective works to any building or structure;

(b)which is–

(i)affected by a personal real burden which it is proposed shall be varied or extinguished;

(ii)affected by a title condition which it is proposed shall be varied or extinguished; or

(iii)a development to which a development management scheme applies where it is proposed to disapply that scheme;

(c)in relation to which it is proposed that other private rights (including private rights of navigation over water) shall be extinguished;

(d)of which the applicant is the sole owner and occupier and which it is proposed shall be used for the purposes of the order for which application is being made; or

(e)in which there subsists a Crown interest, whether or not there are other interests in such land, and which it is proposed shall be used for the purposes of the proposed order.

(6) An applicant may in writing request the Scottish Ministers to direct that the scale for the plans and sections referred to in paragraph (1), (4) or (5) be varied and the Scottish Ministers may so direct where they are satisfied that such a request is reasonable and appropriate.

(7) The book of reference referred to in rule 8(4) is a book which refers to the plan described in paragraph (5) and which (subject to the provisions of paragraph (9))–

(a)contains the names (and addresses) of every owner, lessee (whatever the period of the lease) and occupier of any land which it is proposed shall be subject to–

(i)powers of compulsory acquisition;

(ii)rights to use land, including the rights to attach equipment to buildings or structures; or

(iii)rights to carry out protective works to buildings or structures;

(b)contains the names (and addresses) of every holder of any personal real burden which it is proposed shall be varied or extinguished;

(c)contains the names (and addresses) of every owner of land which is a benefited property in relation to a title condition which it is proposed to vary or extinguish;

(d)contains the names (and addresses) of every owners' association of a development to which a development management scheme applies where it is proposed to disapply that scheme;

(e)contains the names (and addresses) of all those entitled to enjoy other private rights over land (including private rights of navigation over water) which it is proposed shall be extinguished;

(f)where there is a Crown interest in land, which it is proposed shall be used for the purposes of the order for which application is being made, specifies the appropriate authority in relation to that interest;

(g)specifies land–

(i)which is common (as defined in section 7(1) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (interpretation) M15) or open space (as also defined in section 7(1) of that Act);

(ii)which is land held by the National Trust for Scotland for Places of Historic Interest or Natural Beauty;

(iii)which is within, or is within 3 kilometres of, an area designated as a National Park by a designation order made by the Scottish Ministers under section 6(1) of the National Parks (Scotland) Act 2000 M16;

(iv)which has been notified under section 23 of the National Parks and Access to the Countryside Act 1949 M17 or section 3(1) or 5(1) of the Nature Conservation (Scotland) Act 2004 M18 as a site of special scientific interest or which is within 3 kilometres of any such site;

(v)which is within, or is within 3 kilometres of, an European site or an European marine site as those expressions are defined in regulations 2(1) and 10(1) of the Conservation (Natural Habitats, &c.) Regulations 1994 (interpretation) M19;

(vi)which is property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the Protection of World Cultural and Natural Heritage M20 or which is within 3 kilometres of any such property;

(vii)in respect of which a declaration has been made under section 19 of the National Parks and Access to the Countryside Act 1949 (declarations that areas are nature reserves) M21 or which is declared to be a national nature reserve under section 35 of the Wildlife and Countryside Act 1981 M22 or which is within 3 kilometres of any such land;

(viii)which is provided as a nature reserve under section 21 of the National Parks and Access to the Countryside Act 1949 M23 or which is within 3 kilometres of any such nature reserve;

(ix)in respect of which a nature conservation order or land management order made under section 23 or 30 respectively of the Nature Conservation (Scotland) Act 2004 has effect or which is within 3 kilometres of any such land;

(x)which is an area designated as a national scenic area under section 263A of the Town and Country Planning (Scotland) Act 1997 M24 or which is within 3 kilometres of any such area;

(xi)which is a garden or designed landscape identified in “An Inventory of Gardens and Designed Landscapes in Scotland – List of Sites 2007”, published by the Scottish Ministers in 2007 M25 or which is within 3 kilometres of any such garden or landscape;

(xii)which is a scheduled monument within the meaning of section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979 M26;

(xiii)on which there is a listed building within the meaning of section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 M27;

(xiv)for which other land is to be given in exchange;

(xv)that is to be given in exchange for other land; and

(h)specifies, for each plot of land identified in it and within which it is intended that all or part of the proposed works shall be carried out, the area in square metres of that plot.

(8) Where provision is made in the proposed order for any works which are–

(a)proposed to be formed or constructed for the accommodation of an owner or occupier of land adjacent to a proposed transport system or inland waterway; or

(b)ancillary to a proposed transport system or inland waterway,

the applicant shall not be obliged to show them as required by paragraphs (1) and (4) but shall give such indication of them as is reasonably practicable.

(9) The requirements of paragraph (7)(a) to (f) shall extend only to including those names (and addresses) which have been ascertained by the applicant, after making reasonable inquiry, at the beginning of a period of 28 days ending with the date of the application but where the applicant has reason to believe that relevant names (or addresses) have, or might have, been omitted the applicant must clearly indicate this in the book of reference.

(10) Subject to paragraph (9), where the applicant has made reasonable inquiry in order to attempt to obtain the information mentioned in paragraph (7) the application shall not be invalidated by reason only of an error in, or the omission of information from, the book of reference.

Marginal Citations

M171949 c. 97; section 23 was repealed by the Wildlife and Countryside Act 1981 (c. 69), Schedule 17, but notifications under section 23 can continue to have effect by virtue of the Nature Conservation (Scotland) Act 2004 (asp 6), schedule 5, paragraphs 8 to 10.

M19S.I. 1994/2716; the relevant amending instruments are S.S.I. 2004/475 and 2007/80.

M20See Cmnd Paper 9424.

M25ISBN 978 1 904966 44 9. A copy is available at www.historic-scotland.gov.uk.

Deposit of copy application etc. with othersS

11.—(1) The applicant shall serve a copy of the application and of every document that these Rules require shall accompany it upon every–

(a)local authority for an area;

(b)regional Transport Partnership for a region; and

(c)National Park authority for a National Park,

in which all or any part of a transport system, inland waterway or other works to which the application relates is or are (or is or are to be) situated.

(2) The applicant shall deposit copies of the application and of every such document in the Scottish Parliament Information Centre.

(3) In the case of an application for an order authorising the works or other matters specified in any of the categories in column (1) of the table in Schedule 3, the applicant shall serve upon those named against each such category in column (2) of that table a copy of the application and of every such document.

[F19(4) In relation to an EIA application, in addition to the requirements of paragraph (1), the applicant must serve a copy of the application and of every document that these Rules require to accompany it, including the EIA report, upon—

(a)the consultation bodies; and

(b)any other public body that the Scottish Ministers have advised the applicant is likely to have an interest in the application by reason of that body’s specific environmental responsibilities or local and regional competencies.]

(5) The applicant shall not be obliged by virtue of this rule to serve upon anyone more than one copy of the same document unless the recipients are the Scottish Ministers who shall be separately served in respect of each interest identified in column (2) of the table in Schedule 3 where that arises pursuant to paragraph (3).

(6) Where any person has confirmed to the applicant in writing that they do not wish to be served with a copy of, or a copy of any part of, a document that the applicant is required to serve on that person by virtue of this rule, the applicant shall not be required to serve upon that person that document or the relevant part of it.

(7) All documents required to be served upon anyone, or deposited, by virtue of this rule shall be so served, or deposited, as soon as possible after the making of the application and the applicant shall in a covering letter specify–

(a)the capacity (or, if there is more than one, the capacities) in which the recipient is served, or that the documents are being deposited pursuant to paragraph (2), as the case may require;

(b)the expiry date for objections;F20...

(c)the address to which objections or representations are to be sent[F21; and

(d)in the case of an EIA application—

(i)the main proposals and location of the proposed works; and

(ii)that an EIA report will be taken into consideration in determining the application.]

Textual Amendments

Publicity for applicationS

12.—(1) The applicant shall, as soon as possible after the application has been made, publish in the Edinburgh Gazette a notice of the application, which shall–

(a)state the name of the applicant and the address given pursuant to rule 7(2);

(b)state that the application has been made to the Scottish Ministers;

(c)state whether the application is subject to an environmental impact assessment;

(d)summarise the main proposals and specify the location of the proposed works (if any); and

(e)state the address to which objections or representations are to be sent and the expiry date for objections.

(2) The applicant shall publish, in at least one newspaper circulating in each area in which the proposals contained in the application are intended to have effect, a notice in the form of Form 1 in Schedule 2, such notice to be published on at least two separate occasions, the first publication of which may not be made earlier than 14 days before, and not later than, the date of the application and the second or if more than two, the last, to be not more than 7 days after the date of the application.

(3) In the case of an application for an order authorising the works or other matters specified in any of the categories in column (1) of the table in Schedule 4, the applicant shall, as soon as possible after the application has been made, serve upon those named against each such category in column (2) of that table a notice containing the information specified in paragraph (4), and every notice served under the provisions of this paragraph shall state the capacity (or, if there is more than one, the capacities) in which the recipient of the notice is served.

(4) The information referred to in paragraph (3) is–

(a)the name of the applicant;

(b)the date when the application was made to the Scottish Ministers and the address to which objections or representations are to be sent;

(c)a statement as to whether the application is subject to an environmental impact assessment;

(d)a summary of the matters for which provision is to be made in the order for which application has been made (including, in a case to which paragraph (6) or (7) of rule 8 applies, a statement that planning permission or deemed hazardous substances consent, as the case may be, has been sought);

(e)the names of all places, which shall be places within the area to which the proposals in the proposed order relate (or as close as reasonably practicable to that area), where a copy of the application and of the documents[F22, including the EIA report,] which are required by these Rules to accompany it may be inspected free of charge at all reasonable hours until the expiry date for objections; and

(f)a statement that, until that date, any objection to the making of the order, or any representations in relation to it, may be made in writing, stating the grounds for the objection or representations, to the Scottish Ministers at the address specified pursuant to sub paragraph (b).

(5) The places referred to in paragraph (4)(e) shall include a library or libraries, or such other publicly accessible buildings as the Scottish Ministers may direct, which shall in each case be situated within the area to which the proposals in the proposed order relate (or as close as reasonably practicable to that area).

(6) In the case of an application for an order authorising works the applicant shall, as soon as possible after the application has been made, display a notice in the form of Form 2 in Schedule 2 upon, or as close as reasonably practicable to, the proposed sites of those works at a place accessible to the public and, where the order for which application has been made would include linear works exceeding 5 kilometres in length, such a notice shall be displayed at intervals of not more than 5 kilometres along the whole of the proposed route of the works except where this is impracticable due to the land in question being covered by water.

(7) Where an order for which application has been made would authorise–

(a)the extinguishment or diversion (whether such diversion would be permanent or temporary) of a public right of way; or

(b)the stopping up or diversion of a road, or a restriction on the use of the road by any person or traffic, whether such stopping up, diversion or restriction would be permanent or, in the case of a road specifically named in the proposed order, temporary,

the applicant shall, as soon as possible after the application has been made, display a notice in the form of Form 3 in Schedule 2 upon the right of way or road at, or as close as is reasonably practicable to, each point of extinguishment, diversion, stopping up or restriction.

(8) The applicant shall take all reasonable steps to ensure that every notice displayed under the provisions of paragraphs (6) and (7) shall continue to be displayed in a legible form until the expiry date for objections.

(9) The applicant shall supply a copy of the application, or of any document that these Rules require shall accompany an application, to any person who requests such a copy, subject to the payment by that person of a reasonable charge for the provision of that copy, and the applicant shall ensure that information as to how such copies may be obtained is displayed at every place at which copies of the application and those documents are made available for inspection.

[F23(10) In relation to an EIA application the Scottish Ministers must publish on the website referred to in rule 5(17)(c) a notice which—

(a)describes the application and proposed works to which the report relates;

(b)states that the proposed works are subject to environmental impact assessment and, where relevant, states that they are likely to have significant effects on the environment in another EEA State;

(c)states that the EIA report is available for inspection free of charge and the times and places at which, and the means by which, the report is available for inspection;

(d)states how copies of the EIA report may be obtained;

(e)states the cost of a copy of the EIA report;

(f)states how and by what date objections or representations may be made (being a date not earlier than 30 days after the last date on which the notice is published);

(g)provides details of the arrangements for public participation in the decision making procedure, including a description of the procedures requiring the publication of additional information submitted subsequently by the applicant and in accordance with which any person may make objections or representations in relation to that additional information, and the circumstances under the Act in which the Scottish Ministers may cause a public local inquiry or hearing to be held into the application; and

(h)states the nature of possible decisions to be taken in relation to the application and provides details of the authority by whom such decisions are to be taken.

(11) Where an EIA report is provided in relation to an EIA application, the applicant must ensure that a reasonable number of copies of the report are available at an address specified on the website referred to in rule 5(17)(c).

(12) A reasonable charge reflecting printing and distribution costs may be made to a member of the public for a copy of the report made available in accordance with paragraph (11).]

Textual Amendments

Notices to owners, occupiers etc.S

13.—(1) The applicant shall, as soon as possible after the application has been made, serve a notice in the form of Form 4 in Schedule 2 upon all those, other than the applicant and the appropriate authority in relation to any Crown interest, named in the book of reference described in rule 10(7).

(2) In every case where, pursuant to rule 10(9), the applicant has indicated in the book of reference that relevant names have or might have been omitted, the applicant shall, as soon as possible after the application has been made, serve a notice in the form of Form 4 in Schedule 2–

(a)where the omission relates to the holder of any personal real burden, by–

(i)addressing it to the holder of the personal real burden by name or by the description of “holder of personal real burden”; and

(ii)leaving it conspicuously affixed to some building or object on the land affected by the personal real burden;

(b)where the omission relates to the owner of land which is a benefited property in relation to a title condition, by–

(i)addressing it to the owner of the land which is a benefited property by name or by the description of “owner of land which is a benefited property”; and

(ii)leaving it conspicuously affixed to some building or object on the benefited property;

(c)where the omission relates to the owners' association of a development to which a development management scheme applies, by–

(i)addressing it to the owners' association of the development in question by name or by the description of “owners' association under a development management scheme”; and

(ii)leaving it conspicuously affixed to some building or object on the land to which the development management scheme applies; and

(d)in any other case, in the manner provided by section 20(5) of the Act.

Developments likely to have significant effects on the environment of another part of the United Kingdom or certain other statesS

14.—(1) This rule applies where an application for an order under section 1 of the Act has been made and–

(a)it appears to the Scottish Ministers that the application relates to proposed works which would be likely to have significant effects on the environment in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands;

(b)it appears to the Scottish Ministers that the application relates to proposed works which would be likely to have significant effects on the environment of another Member State; or

(c)another Member State whose environment is likely to be affected significantly by the proposed works to which the application relates requests information relating to the application.

(2) In a case falling within paragraph (1)(a) the applicant shall publish, if so directed by the Scottish Ministers, the information specified in paragraphs (1)(a) to (e) and (4)(d) and (e) of rule 12 in such newspapers circulating in the place in question as the Scottish Ministers may specify.

(3) In a case falling within paragraph (1)(b) or (c), the Scottish Ministers shall–

(a)send the information mentioned in paragraph (5) to the Member State in question as soon as reasonably practicable and in any event–

(i)no later than the date of the publication of a notice in the Edinburgh Gazette pursuant to rule 12(1); or

(ii)in a case falling within paragraph (1)(c), no later than 7 days after receiving a request from the Member State in question; and

(b)give the Member State in question a reasonable time in which to indicate whether it wishes to participate in the procedure for consideration of the application.

(4) The Scottish Ministers shall direct the applicant to take such steps as the Scottish Ministers consider necessary to ensure that the public is informed that the project is likely to have significant effects on the environment of another Member State and that the provisions of this rule apply.

(5) The information referred to in paragraph (3)(a) is–

(a)a description of the proposed works, together with any information the Scottish Ministers have in connection with the application as to the possible significant effects of the works on the environment of the Member State in question; and

(b)information on the nature of the decision which may be taken.

(6) Where a Member State has indicated, in accordance with paragraph (3)(b), that it wishes to participate in the procedure for the consideration of the application the Scottish Ministers shall, as soon as reasonably possible, send to the State in question (in so far as these documents and information have not already been supplied to that State)–

(a)a copy of the application;

(b)a copy of the applicant's [F24EIA report]; and

(c)any relevant information regarding the procedure for the consideration of the application and for undertaking an environmental impact assessment of the proposed works in question.

(7) In a case falling within paragraph (1)(b) or (c), the Scottish Ministers shall also–

(a)arrange for the documents and other information referred to in paragraphs (5) and (6) to be made available, within a reasonable time, to the authorities referred to in Article 6(1) of the Directive and to the members of the public in the territory of the Member State which is likely to be significantly affected;

(b)ensure that those authorities and members of the public concerned are given an opportunity, before any order is made authorising the works in question, to forward to the Scottish Ministers, within a reasonable time, their opinion on the information supplied;

(c)enter into consultations with the Member State in question, regarding any potential significant effects of the proposed works on the environment of that Member State, the measures envisaged to reduce or eliminate such effects and such other matters relating to the proposed works as may be relevant to that Member State; and

(d)provide, in agreement with the Member State in question, a reasonable period of time for such consultations to take place before taking any decision as to whether or not to make the order in question.

(8) Where a Member State has been consulted in accordance with paragraph (7)(c), the Scottish Ministers shall inform that Member State of their decision as to whether or not the order in question should be made and shall send to that Member State a statement of–

(a)the content of the decision and any conditions attached to the decision;

(b)the main reasons for the decision and considerations on which it is based including the public participation process; and

(c)a description, where relevant, of the main measures that the applicant is to be required to take in order to avoid, reduce and, if possible, remedy any major adverse environmental effects of the works.

Textual Amendments

Further information and noticesS

15.—[F25(1) This rule applies where the Scottish Ministers are dealing with an EIA application.

(2) In order to ensure the completeness and quality of the EIA report, the Scottish Ministers must (having regard in particular to current knowledge and methods of assessment) direct the applicant to provide supplementary information about any matter to be included in the EIA report in accordance with rule 9(2) which in the opinion of the Scottish Ministers is directly relevant to reaching a reasoned conclusion on the significant effects of the proposed works on the  environment.]

(3) Where any such direction as is mentioned in paragraph F26... (2) has been given by the Scottish Ministers, the applicant shall comply with the requirements of that direction within such period as may be specified in that direction by the Scottish Ministers or if no such period is specified as soon as is reasonably practicable to do so.

(4) Where information is provided by the applicant pursuant to paragraphs (1) to (3), the applicant shall–

(a)publish, in at least one newspaper circulating in the areas to which the information is relevant, a notice in the form of Form 5 in Schedule 2;

(b)serve a copy of the information on each person on whom, in accordance with these Rules, a copy of the applicant's [F27EIA report] was served together with a notice in the form of Form 5 in Schedule 2;

(c)provide a copy or an additional copy of the information, or any part of the information, to any person who requests it, subject to the payment by that person of a reasonable charge for the provision of any such copy or additional copy; and

(d)provide the Scottish Ministers with 4 copies of the information.

[F28(4A) Where supplementary information is provided to the Scottish Ministers pursuant to paragraphs (1) to (3) or (6), the Scottish Ministers must publish on the website referred to in rule 5(17)(c) the information referred to in Form 5 of schedule 2.]

(5) The Scottish Ministers may direct an applicant to produce such evidence, to verify any information in the applicant's statement of environmental information or in any further information provided as a consequence of a direction given under paragraph (1) or (2), as the Scottish Ministers may require.

(6) Where, after making an application–

(a)an applicant submits to the Scottish Ministers further environmental information in relation to that application otherwise than in pursuance of a direction under paragraph F29... (2); or

(b)any other person submits further environmental information relevant to that application,

the Scottish Ministers may require the applicant to comply with the steps set out in paragraph (4) in respect of that further information.

(7) Where further information is provided or submitted as mentioned in this rule in a case falling within rule 14(1)(b) or (c), the Scottish Ministers may send that further information to the Member State in question as soon as reasonably practicable and may comply with the requirements of rule 14(7), on the basis that the documents and information mentioned in that rule shall be the further information provided or submitted.

Textual Amendments

[F30Co-ordination of assessmentsS

15A.—(1) Where in relation to an EIA application there is in addition to the requirement for an environmental impact assessment to be carried out in accordance with these Rules also a requirement to carry out a Habitats Regulation Assessment, the Scottish Ministers must, where appropriate, ensure that the Habitats Regulation Assessment and the environmental impact assessment are co-ordinated.

(2) In this rule a “Habitats Regulation Assessment” means an assessment under regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994.]

Textual Amendments

Waiver of requirements in relation to applicationsS

16.—(1) An applicant may at any time before or after making an application submit a request in writing to the Scottish Ministers for a direction that any provision contained in rules 3, 7, 8 (other than paragraph (2)(h) of rule 8) and 10 to 13 shall not apply (or shall apply in part only) to an application the applicant has made or proposes to make.

(2) A request made under paragraph (1) shall give reasons for the request.

(3) Where a request is made under paragraph (1) the Scottish Ministers may, being satisfied of the reasons of the applicant not to comply with any provision contained in the rules mentioned in paragraph (1)–

(a)direct that the provision in question shall not apply, or shall apply in part only, to the application in question; and

(b)whether or not a direction has been given pursuant to sub paragraph (a), direct that the applicant shall comply with the provision in question, or any part of it, at such later date as may be specified in the direction.

Fees for applicationsS

17.—(1) The fee for an application is–

(a)£10,000; or

(b)£1,000 where either–

(i)the primary object of the proposed order to which the application relates is the construction or operation of a heritage railway; or

(ii)the applicant is a body which may refer to itself as a “charity” in terms of section 13 or 14 of the Charities and Trustee Investment (Scotland) Act 2005 (references to charitable status) M28.

(2) In paragraph (1), “heritage railway” means a railway which is operated to–

(a)preserve, re create or simulate railways of the past; or

(b)demonstrate or operate historical or special types of motive power or rolling stock,

and which is exclusively or primarily used for tourist, educational or recreational purposes.

(3) The fee for an application shall be paid to the Scottish Ministers when the application is made.

(4) Where an application is withdrawn before the expiration of the time limit specified in paragraph (5) an applicant may make a request in writing to the Scottish Ministers for the repayment of any part of the fee paid when that application was made.

(5) The time limit is–

(a)in the case of an application in relation to which, pursuant to rules made under section 10 of the Act, the Scottish Ministers have given notice of their intention to hold a public local inquiry, the expiration of the period of 14 days commencing with the date on which any such inquiry is closed;

(b)in the case of an application in relation to which, pursuant to rules made under section 10 of the Act, the Scottish Ministers have given notice of their intention to hold a hearing under section 9(2) of the Act, the expiration of the period of 14 days commencing with the date on which any such hearing is closed;

(c)in the case of an application to which the provisions of rule 22 apply, the end of the day on which is completed the latest of such of the time periods specified in or pursuant to paragraphs (2) to (10) of that rule as shall apply to that application; or

(d)in any other case, the end of the operative date.

(6) Where a request is made pursuant to paragraph (4), the Scottish Ministers shall repay to the applicant such portion (if any) of the fee paid as the Scottish Ministers shall consider appropriate.

Marginal Citations

Orders made by the Scottish Ministers by virtue of section 6S

18.  Schedule 5 (which imposes duties and powers on the Scottish Ministers where they propose to make an order by virtue of section 6 of the Act) shall have effect.

Objections: generalS

19.—(1) Subject to paragraph (2), an objection made in relation to an application shall only be an objection for the purposes of these Rules if it–

(a)is received by the Scottish Ministers on or before the expiry date for objections;

(b)is made in writing;

(c)states the grounds of the objection;

(d)indicates who is making the objection; and

(e)provides an address to which any correspondence relating to that objection may be sent.

(2) Where an objection relates to information provided or submitted as mentioned in rule 15 after the application has been made, that objection will be an objection for the purposes of these Rules, even where it is made after the expiry date for objections, if it is made not later than 42 days after the date on which the information is provided or submitted to the Scottish Ministers or the last date on which a notice relating to the information is published in a newspaper pursuant to rule 15(4), whichever date is the later.

(3) In this rule and in rules 20 to 23, a reference to an objection includes a reference to any document submitted with an objection.

Notice of objectionsS

20.—(1) The Scottish Ministers shall, as soon as reasonably practicable after they have received an objection, provide the applicant with a copy of that objection.

(2) As soon as reasonably practicable after the expiry date for objections the Scottish Ministers shall provide the applicant with a list of the objections that the Scottish Ministers have received stating, in each case–

(a)the name and address of the objector; and

(b)the reference number given to the objection.

(3) The Scottish Ministers may, upon request, provide any person with a copy of any objections made by others.

Application of written representations procedureS

21.—(1) Subject to paragraphs (2) to (4), rule 22 shall apply to an objection unless, on or before the operative date, the Scottish Ministers have–

(a)given notice in accordance with rules made under section 10(1) of the Act (procedure at inquiries and hearings) that they will cause a public local inquiry to be held;

(b)given notice to the applicant and every objector who made the objection in question that the objection will be dealt with in accordance with section 9(2) of the Act (inquiries and hearings); or

(c)informed the objector in question and the applicant that it appears to the Scottish Ministers that the objection is of a type mentioned in paragraph (a) or (b) of section 8(3) of the Act (frivolous or trivial objections or objections relating to compensation).

(2) Rule 22 shall not apply in relation to an objection if, not later than the operative date, a statutory objector informs the Scottish Ministers in writing of the statutory objector's wish for the objection to be referred to a public local inquiry or dealt with in accordance with section 9(2) of the Act.

(3) Rule 22 shall cease to apply to an objection if after the operative date either the Scottish Ministers or a statutory objector, as the case may be, takes in relation to that objection one of the steps mentioned in paragraph (1) or (2) above.

(4) Notwithstanding that one of the steps mentioned in paragraph (1) or (2) has been taken, the Scottish Ministers may, with the consent of the applicant and every statutory objector, and after consulting such other persons as they think fit, direct that rule 22 shall thereafter apply to all objections that have not been withdrawn; provided that, where any of the steps required to be taken under that rule have been taken before the date of that direction, they need not be taken again.

(5) In this rule “statutory objector” means a person within section 9(4) of the Act who has made an objection which–

(a)has not been withdrawn; and

(b)does not appear to the Scottish Ministers to be of a type mentioned in paragraph (a) or (b) of section 8(3) of the Act.

Procedure by written representationsS

22.—(1) Where none of the steps mentioned in paragraphs (1) and (2) of rule 21 has been taken by the operative date the provisions of this rule shall apply and the Scottish Ministers shall notify the applicant and all those who have made, and not withdrawn, an objection pursuant to rule 19 that this is the case.

(2) The applicant shall, not later than 28 days of being notified pursuant to paragraph (1), send to the Scottish Ministers representations upon each objection.

(3) The Scottish Ministers shall, within 7 days of receiving representations from the applicant pursuant to paragraph (2), send to each objector a copy of any of those representations that relate to their objection and shall inform them of their rights under paragraph (4).

(4) An objector may, within 21 days of being sent a copy of the applicant's representations pursuant to paragraph (3), reply in writing to the Scottish Ministers.

(5) Where the Scottish Ministers receive no reply from an objector within the period specified in paragraph (4) they may proceed to make a determination under section 11 of the Act, unless they consider that they do not have sufficient information to enable them to make a determination.

(6) Where the Scottish Ministers receive a reply from an objector pursuant to paragraph (4) they shall, within 7 days of receipt, send a copy of such reply to the applicant.

(7) An applicant who wishes to send any further representations to the Scottish Ministers shall do so within 14 days of being sent a copy of any reply pursuant to paragraph (6).

(8) Subject to paragraph (9), the Scottish Ministers may, upon expiry of the period specified in paragraph (7), proceed to make a determination under section 11 of the Act, unless they consider that–

(a)they do not have sufficient information to enable them to make such a determination; or

(b)any further representations received from the applicant pursuant to paragraph (7) raise a new matter which, in the opinion of the Scottish Ministers, may affect their determination and upon which an objector should be given the opportunity to comment.

(9) Where, pursuant to paragraph (5) or (8)(a), the Scottish Ministers consider that they require further information from the applicant or an objector to enable them to make a determination under section 11 of the Act or where, pursuant to paragraph (8)(b), the Scottish Ministers decide to give an objector a further opportunity to comment, they shall write to the applicant and objector accordingly and shall specify the period during which any further information or comments, as the case may be, shall be submitted to the Scottish Ministers.

(10) Where paragraph (9) applies, the Scottish Ministers shall consider, upon receipt of any further information or comments within the specified period, whether or not a further opportunity to comment should be given to the applicant or to an objector and, if so, they shall specify a period for making any further comments.

(11) The Scottish Ministers may, upon request, provide any person with a copy of any written representations or other material that have been sent to them pursuant to this rule.

(12) In making a determination under section 11 of the Act, the Scottish Ministers may disregard any written representations or other material that have not been sent to them within any time limit specified under or pursuant to this rule.

Submission of objections to inquiry or hearingS

23.  Where the Scottish Ministers cause a public local inquiry or hearing to be held under section 9 of the Act, the Scottish Ministers shall submit every objection made pursuant to rule 19 to the person appointed to hold the inquiry or hearing, as soon as it is reasonably practicable to do so.

Making of representationsS

24.—(1) Rules 19, 20 and 23 shall apply to the making of representations as regards an application under section 4 of the Act (applications) as they apply to the making of objections to such an application, as if–

(a)each reference to “an objection” in those rules was a reference to “representations”;

(b)each reference to “that objection” in those rules was a reference to “those representations”;

(c)subject to paragraph (2)–

(i)other references to “objection”; and

(ii)references to “objections”,

in those rules were references to “representations”;

(d)the reference in rule 19(3) to “this rule and in rules 20 to 23” was a reference to rules 19, 20 and 23 as applied by this rule;

(e)the reference in rule 20(2)(a) to “objector” was a reference to “maker of the representations”; and

(f)the reference in rule 23 to rule 19 was a reference to that rule as applied by this rule.

(2) Paragraph (1)(c) does not apply to the references to “objections” where they occur in rule 19(1)(a) and (2) and where it occurs the first time in rule 20(2).

(3) References in these Rules to the “expiry date for objections” shall apply, where the context requires, as if in the definition of that expression in rule 2(1) the words “and representations” were inserted after the words “making objections”.

(4) Where none of the steps mentioned in paragraphs (1) and (2) of rule 21 have been taken by the operative date, so that the provisions of rule 22 shall apply to an objection, the Scottish Ministers shall also notify all those who have made representations pursuant to rule 19, as that rule is applied by this rule, that this is the case.

Power to set later time limitsS

25.  The Scottish Ministers may at any time in any particular case allow further time for the taking of any step (including a step which they are required or enabled to take themselves) which may or must be taken pursuant to these Rules and any reference to a date by which or a period within which any step is required to be taken shall be construed accordingly.

[F31Competent authority – avoidance of conflict of interestS

26.—(1) The Scottish Ministers are to perform their duties arising under these Rules in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest.

(2) Where the Scottish Ministers are considering whether to make an order under section 6 of the Act which would authorise a project which—

(a)is of a type mentioned in Annex I to the Directive; or

(b)is of a type mentioned in Annex II to the Directive and which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location,

they are to implement within their organisation of administrative competences an appropriate separation between conflicting functions when performing their duties under these Rules.]

Textual Amendments

STEWART STEVENSON

Authorised to sign by the Scottish Ministers

St Andrew's House,

Edinburgh

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