The route ahead

Two current bills will have a big impact on the approval of major transport infrastructure projects

The Journal, July 2006, page 45

The Planning etc (Scotland) Bill has entered stage 2 of its parliamentary process. The Communities Committee has reported that the bill, which provides for a statutory national planning framework, a revised local plans system and measures to boost public participation, would help economic growth and development. The bill intends to introduce a logical order to the planning system through a hierarchy of development types – with each level having different procedures for the submission, processing and determination of applications. National transport infrastructure projects would fall within the “National Development” framework discussed below.

The legislative framework for delivery of these projects would still remain outwith planning legislation, as the construction of a new railway or tram currently requires a private bill to be passed by the Scottish Parliament, whilst major road developments (e.g. the M74 extension) are approved under separate legislation. However, the Transport and Works (Scotland) Bill (introduced on 26 June) seeks to replace the private bill mechanism for scrutinising and approving transport infrastructure projects, and its proposals are briefly outlined below.

Planning context

Although often supported by Scottish Executive policy documents and referred to in a local authority’s development plan, there is currently no statutory framework or specific planning policy document dealing with the provision of national transport projects. The current National Planning Framework (2004) (“NPF”) does set a context for spatial development for the whole of Scotland, but does not identify or designate transport infrastructure projects. Nor has it any statutory weight in the decision-making process. This would change under the proposals in the Planning Bill.

The Scottish Ministers would have a statutory obligation to produce the NPF. “National Developments” would be designated within it and are likely to include major transport, water, drainage, energy and waste projects. Following consultation, the NPF would be laid before the Scottish Parliament for scrutiny. Local authorities would then have to implement the NPF proposals within their development plans and neither landowners nor the local authority could dispute the need for these developments, as they would have been approved in principle by the parliament. This enhanced role and status will make the NPF a powerful political instrument for securing the delivery of national developments.

Current infrastructure projects

The Scottish Parliament has passed five private bills that relate to transport infrastructure projects – the latest being relative to the Waverley Railway project – with three other railways currently being promoted. For guidance on current private bill procedure visit www.scottish.parliament.co.uk . Whatever one’s view of devolution, the Scottish Parliament, and our legal system generally, it cannot be denied that our newly devolved legislature is now delivering approvals for some extremely significant transport infrastructure projects for Scotland. However, following a report produced by the parliament’s Procedures Committee in 2005, its private bills procedure is to be reformed.

Reforming the process

The proposals are broadly similar to those already applied in England and Wales under the Transport and Works Act 1992. Major infrastructure projects, such as the Channel Tunnel Rail Link, have been dealt with under this legislation. However, the same procedure has not been possible for the same type of projects in Scotland. It is intended that an order-making process will replace the current procedure for approving transport infrastructure projects (rail, tram, guided busways) and inland waterways, so that:

• Prior to making an application, the promoter would be required to carry out extensive consultation with all people affected by the scheme and environmental bodies;
• All information in support of the application is then subject to a period of scrutiny prior to the making of a formal application;
• Once the 42 day objection period ends, Scottish Ministers would appoint independent reporters to examine proposals in detail;
• Scottish Ministers would review the reporter’s recommendations and make a final order (subject to parliamentary approval for national projects).

Although the Scottish Ministers currently make an order or scheme in respect of a trunk road or harbour development, these would also now be subject to scrutiny and approval by the Scottish Parliament.

Both policy and legislative reforms are clearly intended to streamline the process and secure the delivery of transport infrastructure. The introduction of early debate on the merits and principle of the proposal in the NPF and pre-application consultation and scrutiny will be welcomed by affected parties. There is clearly also a desire that developments having national policy implications should not be frustrated by local objection throughout the application stage. However, it is gratifying to see the Scottish Parliament taking steps to create a more efficient and simplified procedure for the delivery of crucial transport infrastructure projects.

Sarah Baillie and Robin Priestley, Planning & Environment, Anderson Strathern