Section 20: Service of notices and other documents

67.     This section provides details of how a notice or a document can be served and on whom it should be served. Subsections (1)(c) and (2) set the context within which documents can be communicated electronically. Subsection (4) describes the proper address for the serving of notices by post. In those instances where the proper address cannot be ascertained and the matter relates to an interest in, or to the occupier of, land, subsection (5) provides for a notice to be addressed to either the owner or as the case may be the occupier and left with a person resident or employed on the land or affixed to a building or object on the land.

Section 21 : Annual report

68.     The section places the Scottish Ministers under a duty to prepare an annual report, by 1^st October each year, of the operation of the order-making process. Subsection (2) provides details of some of the matters that are to be contained within the report. Under subsection (3) a copy of the report is to be laid in the Scottish Parliament as well as being published.

Section 22: Orders under the Light Railway Act 1896

69.     The section ensures that an order for the purposes of constructing or operating a light railway that previously would have been made under the Light Railways Act 1896 can no longer be made by the Scottish Ministers under that Act.

Section 23: Interpretation

70.     The section defines terms used within Part 1.

PART 2: MISCELLANEOUS AMENDMENTS

Section 24: Amendment of Roads (Scotland) Act 1984

71.     Subsection (2) through the insertion of new section 143A obligates the Scottish Ministers to seek an affirmative resolution from the Scottish Parliament in respect of an order authorising any future road developments that constitute a national development or when the Scottish Ministers so direct. The new section 143A provides the definition of a national development and identifies the instruments to be subject to affirmative procedure. It also provides that an order which seeks to amend, revoke or re-enact an instrument laid before the Scottish Parliament will only be subject to affirmative procedure if the Scottish Ministers so direct.

72.     Subsection (4) ensures that when an order is subject to affirmative procedure the public are to be informed that the instrument cannot come into force until and unless approval is given by the Scottish Parliament.

73.     Subsection (5) inserts a new paragraph 1A to Schedule 2 of the Roads (Scotland) Act 1984 which details the publicity arrangements of any roads order or scheme that has been approved by the Scottish Parliament.

Section 25: Amendment of Harbours Act 1964

74.     Provisions within this section transpose Council Directive 2003/35/EC (otherwise known as the Public Participation Directive) and significantly amend Schedule 3 to the Harbours Act 1964. A revised Schedule 3 to the 1964 Act is attached for information with the new text inserted in italics and noting where text has been repealed. A transposition schedule is attached for information.

75.     Subsection (2) inserts in section 44 of the Harbours Act 1964 subsection (6) which provides a definition of the "public concerned" to include a non-governmental organisation promoting environmental protection and confirms at subsection (7) that such a party has a legitimate right to raise a challenge to a harbour revision or empowerment order authorising a project likely to have a significant effect on the environment.

76.     Subsection (3) through the insertion of new section 54A obligates the Scottish Ministers to seek an affirmative resolution from the Scottish Parliament in respect of an order authorising any future harbour developments that constitute a national development. It also provides the Scottish Ministers within subsection (2)(b) with the discretion to seek Parliamentary approval, by means of an affirmative procedure, for any other harbour scheme. Section 54A(5) provides that when a harbour order seeks to amend, revoke or re-enact an instrument laid before the Scottish Parliament the order will be subject to affirmative procedure only if the order authorises work constituting a national development different to that authorised by the original instrument, or the Scottish Ministers so direct.

77.     Subsection (5)(a) provides for definitions in paragraph 1 of Schedule 3. Subsection (5)(b) and (c) provide for access to information and the making of representations. Subsection (5)(d) introduces a new paragraph into Part 1 of Schedule 3 to the Act, paragraph 10A, which provides for the notification procedure in those instances when the Scottish Ministers receive additional information that will have a bearing on their consideration of the likely environmental effects of a proposed project.

78.     The insertion at sub-paragraph (1D) of paragraph 18 adds a harbour authority to the list of statutory objectors, but only where they are not the applicant, in respect of an application for a harbour revision order.

79.     The insertions to sub-paragraph (2) of paragraph 24 and the insertion of the new sub-paragraph (3) provide details of the publicity arrangements for a harbour order including those approved by the Scottish Parliament. The insertions to sub-paragraph (4) of paragraph 28 add a harbour order authority to the list of statutory objectors in respect of a harbour revision order where the order is to be made by the Scottish Ministers of their own motion. The addition of the new sub-paragraph (3) of paragraph 31 provides details of the publicity arrangements for a harbour revision order made by the Scottish Ministers of their own motion.

80.     The new sub-paragraph (3A) in paragraph 32 recognises that a harbour authority cannot be an objector in the case of an empowerment order since the purpose of a harbour empowerment order is to establish a harbour authority.

81.     Subsection (6) makes changes to paragraph 3 of Schedule 4 so as to ensure that the objections of a harbour authority, as a statutory objector, to a harbour re-organisation scheme cannot be dealt with by means of correspondence; there must always be a statutory right to an inquiry or hearing.

Section 26: Amendment of Pilotage Act 1987

82.     This section introduces a new section 1A into the Pilotage Act 1987 to improve notification provisions and permit the Scottish Ministers in those cases where there are unresolved objections to a proposal to determine the procedure for detailed consideration of those objections.

83.     The new subsection (1) details the notification provisions. The Scottish Ministers must before making an order give notice by advertisement in at least one newspaper (subsection (1)(a)(i)) and the Edinburgh Gazette (subsection (1)(a)(ii)). The Scottish Ministers are also obliged to provide a copy to any other persons that might be affected. This may include parties who are engaged in shipping movements but who may not have access to a local newspaper or the Edinburgh Gazette.

84.     The new subsection (2) details the notification provisions that are to apply when a harbour authority which is not a competent harbour authority (i.e. a harbour authority which has statutory powers in relation to the regulation of shipping movements and the safety of navigation within its harbour and whose harbour falls wholly or partly within an active former Pilotage district) makes an application to the Scottish Ministers to be a competent harbour authority. The notification provisions require the harbour authority to give notice by advertisement in at least one newspaper (paragraph (a)(i)) and the Edinburgh Gazette (paragraph (a)(ii)). The harbour authority is also obliged to provide a copy to any other persons that might be affected. This may include parties who are engaged in shipping movements but may not have access either to a local newspaper or the Edinburgh Gazette.

85.     The new subsection (3) provides details of the content of the notice. The notice must contain a summary of the proposed order, the place where a copy may be inspected and specify a time period of at least 42 days during which affected persons will have an opportunity to make an objection.

86.     The new subsection (4) provides a statutory right for a public local inquiry or hearing when a harbour authority affected by the proposal raises an objection. Subsection (5) provides that any other objections unless they are considered frivolous or trivial are to be considered at an inquiry, hearing or by written representation. Subsections (6) and (7) state that certain provisions of the Local Government (Scotland) Act 1973 which apply in respect of an inquiry under that Act will apply in similar circumstances to an inquiry or hearing carried out under the Pilotage Act 1987.

87.     Following consideration of a report from an inquiry or hearing or of written representations, as the case may be, the Scottish Ministers under the new subsection (8) may either make the order as proposed, make the order with modifications or decide not to make the order.

88.     The new subsection (9) provides for public notification that the order has been made. It also places a duty to notify those persons who received a copy of the original notice that was issued under the provisions of subsections (1) and (2).

89.     The new subsection (10) provides for the detail that must be contained within the notice notifying the making of an order.

Section 27: Amendment of Transport (Scotland) Act 2001

90.     This section inserts new subsections (1A) and (1B) into section 70 of the Transport (Scotland) Act 2001.

91.     New subsection (1A) allows the Scottish Ministers to make a grant or loan in respect of the purchase of eligible properties the use or enjoyment of which are or may be seriously affected by the construction or operation of a development authorised under section 1 of this Act or by a development authorised through earlier legislation but which, had it been in place at the time, could have been authorised by provisions within this Act.

92.     New subsection (1B) provides a definition of qualifying interest which comprises not only an interest in domestic property but also I relevant agricultural property and in certain cases in other non-domestic property

PART 3: GENERAL

Section 28: Further provision as regards rules, regulations and orders

93.     Subsection (6) provides the Scottish Ministers with powers for sub-delegation of functions and powers to make incidental, supplemental, consequential, transitional, transitory or saving provisions. That, with the powers in subsection (7), allows the Scottish Ministers to make provision for ancillary matters and to enable unforeseen circumstances to be addressed which may arise following the enactment of the Bill without having to have recourse to primary legislation. The scope of the power is restricted. It can only be used to make provisions which are of an incidental, supplemental, consequential, transitional, transitory or saving nature.

Section 29: Modification and repeal of enactments

94.     Subsection (1) indicates that schedule 2 to the Act contains a list of enactments that are modified by the Act.

95.     Subsection (2) indicates that schedule 3 to the Act contains a list of enactments that are repealed by the Act.

Section 30: Short title and commencement

96.     Subsection (1) provides the short title, which is the name by which the Act may be cited.

97.     Subsection (2) deals with commencement of sections 28 and 30. Subsection (3) provides for provisions in section 25 implementing the Public Participation Directive and for section 27 to come into force two months after the date of Royal Assent. It is for the Scottish Ministers, as explained in subsection (4), to make provision commencing the remaining provisions of the Act.

SCHEDULES

Schedule 1: Matters within section 1

98.     The schedule contains a non-exhaustive list of the matters that may be addressed within an order made under section 1.

Schedule 2: Modification of enactments

99.     The schedule contains consequential modifications to earlier Acts in order to give effect to the provisions of the Act.

Schedule 3: Repeals

100.     The schedule details the repeals within various enactments that are necessary to dis-apply special Parliamentary procedure in respect of road and harbour developments and pilotage.

HARBOURS ACT 1964

SCHEDULE 3

This text is provided for guidance only and accuracy is not warranted.

Key:

New text inserted = this is new text inserted by the Act

Text deleted or repealed = [this is existing text which has been deleted or repealed]

SCHEDULE 3

PROCEDURE FOR MAKING HARBOUR REVISION AND EMPOWERMENT ORDERS

Sections 17 and 47

[ PART I

ORDERS MADE ON APPLICATION TO THE SECRETARY OF STATE ]

Introduction

1. In this Part of this Schedule-

"the Directive" means Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC and Council Directive 2003/35/EC;

"EEA Agreement" means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993 ;

"EEA State" means a State which is a Contracting Party to the EEA Agreement;

"environmental statement" means a statement which includes the information mentioned in paragraph 8(2) and such additional information as the Secretary of State may require under paragraph 8(3);

"fishery harbour" has the meaning assigned to it in section 21 of the Sea Fish Industry Act 1951;

"project" means -

(a) the execution of construction works or other installations or schemes, and

(b) other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;

"relevant project" means a project which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

"selection criteria" means the criteria set out in Annex III to the Directive;

"sensitive area" means any of the following-

(a) land within a site of special scientific interest;

(b) land in respect of which a conservation order or land management order made under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6) has effect;

[(c) land declared to be a national nature reserve under section 35 of that Act];

[(d) an area to which paragraph (u)(ii) in the table in article 10 of the Town and Country Planning (General Development Procedure) Order 1995 applies];

[(e) a National Park within the meaning of the National Parks and Access to the Countryside Act 1949];

(g) a property appearing on the World Heritage List kept under article 11(2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage;

(h) a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979;

[(i) an area of outstanding natural beauty designated by order under section 87 of the National Parks and Access to the Countryside Act 1949 (designation of areas of outstanding natural beauty)];

(j) a European site within the meaning of regulation 10 of the Conservation (Natural Habitats etc) Regulations 1994;

(k) an area designated as a national scenic area under section 262C of the Town and Country Planning (Scotland) Act 1972

(l) 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.

[2.

A project shall be treated for the purposes of this Part as not falling within Annex II to the Directive unless-

(a) the area of the works comprised in the project exceeds 1 hectare,

(b) any part of the works is to be carried out in a sensitive area, or

(c) the Secretary of State determines that the project shall be treated for the purposes of this Part as falling within that Annex. ]

Pre-application procedure

[3.

A person may not make an application for a harbour revision order which, directly or indirectly, authorises any project unless-

(a) he has given the Secretary of State notice of his intention to make the application, and

(b) the Secretary of State has responded under paragraph 5 or 6(3). ]

[4.

Where the Secretary of State is notified of a proposed application under paragraph 3(a) he shall decide-

(a) whether the application relates to a project which falls within Annex I or II to the

Directive, and

(b) if it relates to a project which falls within Annex II, whether, taking into account the selection criteria, the project is a relevant project. ]

[5.

If the Secretary of State decides that the application-

(a) does not relate to a project which falls within Annex I or II to the Directive, or

(b) relates to a project which falls within Annex II but is not a relevant project,

he shall inform the proposed applicant in writing of his decision.]

[6.—

(1) If the Secretary of State decides that the application relates to a project which falls within

Annex I or within Annex II to the Directive and is a relevant project-

(a) he shall in writing inform the proposed applicant of the decision, and give him the

reasons for his decision,

(b) sub-paragraph (2) shall apply, and

(c) if the applicant makes the application, paragraph 8 shall apply.

(2) Where this sub-paragraph applies the Secretary of State shall give an opinion to the proposed applicant about the extent of the information referred to in Annex IV to the Directive which the proposed applicant would be required under paragraph 8(1) to supply in an environmental statement.

(3) In giving an opinion under sub-paragraph (2), the Secretary of State shall take into account the extent to which he considers-

(a) information to be relevant to his decision under paragraph 19 and to the specific

characteristics of the project to which the proposed application relates and of the

environmental features likely to be affected by it; and

(b) that (having regard in particular to current knowledge and methods of assessment) the proposed applicant may reasonably be required to compile the information.

(4) The Secretary of State shall not give an opinion under sub-paragraph (2) until he has consulted the proposed applicant and such bodies with environmental responsibilities as he thinks appropriate.

The application

[7.

An application for a harbour revision order must be accompanied by-

(a) six copies of a draft of the proposed order,

(b) six copies of any map which, if the order is made in the form of the draft, will be

annexed to it, and

(c) such fee as the Secretary of State may determine. ]

[8.—

(1) Where this paragraph applies pursuant to paragraph 6(1), the Secretary of State shall direct the applicant to supply him with an environmental statement in such form as he may specify.

(2) The environmental statement shall include the following information-

(a) a description of the project comprising information on its site, design and size;

(b) a description of the measures which the applicant proposes to take in order to prevent, reduce or remedy significant adverse effects;

(c) data required to identify and assess the main effects which the project is likely to have on the environment;

(d) an outline of the main alternatives studied by the applicant and an indication of the

main reasons for his choice, taking into account the environmental effects; and

(e) a non-technical summary of the information mentioned in paragraphs (a) to (d).

(3) The Secretary of State may require the applicant to include in the environmental statement

specified information in addition to the information listed in sub-paragraph (2) (whether or not specified in the opinion given under paragraph 6(2)).

(4) The Secretary of State may specify information under sub-paragraph (3) only if it is information of a type set out in Annex IV to the Directive and he considers that-

(a) it is relevant to his decision under paragraph 19 and to the specific characteristics of the project to which the application relates and of the environmental features likely to be affected by it; and

(b) (having regard in particular to current knowledge and methods of assessment) the

applicant may reasonably be required to compile the information.

[9.

The Secretary of State shall not consider an application for a harbour revision order unless the applicant complies with any direction under paragraph 8(1) and with any relevant requirements of paragraphs 10 to 14.]

Notices

[10.—

(1) An applicant shall arrange for a notice to be published-

(a) by Gazette and local advertisement, and

(b) in such other ways as the Secretary of State may direct.

(2) The notice must-

(a) state that an application has been made for the order,

(b) state the Secretary of State's decision under paragraph 4 and any reasons given under paragraph 6(1),

(c) state whether an environmental statement has been supplied under paragraph 8(1)

(ca) where such a statement has been supplied-

(i) provide an address from which a copy of the statement can,, until the expiry of the period referred to in head (f), be obtained and information as to the amount of any charge for the provision of such a copy,

(ii) provide an address from which further information about the works proposed to be authorised can, until the expiry of that period, be obtained, and

(iii) state whether paragraph 16 applies,

(d) contain a concise summary of the draft order,

(e) give a general description of any land proposed for compulsory acquisition and of the nature of any works proposed to be authorised, [and]

(f) state that any person who desires to object to the application or to make representations in relation to any environmental statement supplied under paragraph 8(1) should do so in writing to the Secretary of State, specifying (where relevant) the grounds of the objection, before the expiry of the period of 42 days starting with a date specified in the notice and

(g) provide details of the procedure under this Schedule for dealing with any objection or representations made under head (f).

(3) The date specified in accordance with sub-paragraph (2)(f) must be the date on which the notice first appears in a local newspaper.

(4) The notice must also specify a place where copies of the following documents can until the expiry of the period referred to in sub-paragraph (2)(f) be inspected at all reasonable hours-

(a) the draft order,

(b) the decision of the Secretary of State referred to in sub-paragraph (2)(b),

(c) any environmental statement supplied under paragraph 8(1), and

(d) any map accompanying the application.

(5) The copy of the map referred to in sub-paragraph (4)(d) must be drawn to the same scale as that map. ]

10A

(1) This paragraph applies where—

(a) an environmental statement has been supplied under paragraph 8(1), and

(b) prior to the Scottish Ministers making a decision under paragraph 19(2), they are supplied by the applicant or any other person with further information falling within sub-paragraph (2).

(2) Information falls within this sub-paragraph if—

(a) the Scottish Ministers are of the view that it requires to be considered in order properly to assess the likely environmental effects of the proposed project, and

(b) it is not information required for the purposes of an inquiry or hearing held under paragraph 18.

(3) The applicant shall arrange for a notice to be published—

(a) by Gazette and local advertisement, and

(b) in such other ways as seem to the Scottish Ministers appropriate.

(4) The notice must—

(a) state that further information of the sort referred to in sub-paragraph (2)(a) has been received,

(b) specify a place where a copy of the information can, until the expiry of the period referred to in head (d), be inspected at all reasonable hours,

(c) provide an address from which a copy of the information can, until the expiry of that period, be obtained and details of the amount of any charge for the provision of such a copy, and

(d) state that any person who desires to make representations in relation to the information should do so in writing to the Scottish Ministers before the expiry of the period of 42 days starting with a date specified in the notice.

(5) The date specified in accordance with sub-paragraph (4)(d) must be the date on which the notice first appears in a local newspaper.

[11.

If the order will authorise the compulsory acquisition of land the applicant shall, in respect to each parcel of land, serve a notice on every owner, lessee and occupier other than a tenant for a month or any period less than a month-

(a) stating that an application has been made to the Secretary of State for the making of an order which will authorise the compulsory acquisition of the parcel,

(b) naming a place where a copy of the draft order may be inspected at all reasonable

hours,

(c) naming a place where a copy of any relevant map accompanying the application, drawn to the same scale and delineating the boundaries of the parcel, may be inspected at all reasonable hours, and

(d) stating that if the person on whom the notice is served wishes to object to the application so far as regards the compulsory acquisition of the parcel he should do so in writing to the Secretary of State, specifying the grounds of his objection, before the expiry of the period of 42 days starting with the date on which the notice is served on him. ]