Transport and Works (Scotland) Act 2007 (asp 8)

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(3) The Secretary of State may disregard an objection-

[...]

(b) in the case of an objection about compulsory acquisition, if he is satisfied that the objection relates exclusively to matters which can be dealt with by the tribunal by whom compensation in respect of the acquisition will fall to be assessed in default of agreement.

The decision

19. (1) The Secretary of State shall consider–

(a) any environmental statement supplied under paragraph 8(1) and any further information falling within paragraph 10A(2);

(b) the result of any consultations under paragraph 15;

(c) any opinion sent under paragraph 16(5)(b) and the result of any consultations with other EEA States under paragraph 16(6)(a);

(d) any objections made and not withdrawn; […]

(da) any representations made under paragraph 10(2)(f) or 10A(4)(d);

(e) the report of any person who held an inquiry and of any person appointed for the

(f) [ (f) any written representations submitted to the Scottish Ministers by the applicant or any objector in elaboration of the application or, as the case may be, objection. ]

(2) Following the consideration required by sub-paragraph (1) the Secretary of State shall decide–

(a) not to make the order applied for,

(b) to make it in the form of the draft submitted to him, or

[20. (1) This paragraph applies where the Secretary of State decides under paragraph 6(1)–

(a) that the application relates to a project which falls within Annex I or II to the Directive, and

(b) in the case of an application relating to a project which falls within Annex II to the Directive, that the project is a relevant project.

(2) The Secretary of State shall publish by Gazette and local advertisement the following information–

(a) the content of the decision whether or not to make the order and any conditions attached to the decision,

(b) the main reasons and considerations on which his decision is based,

(ba) details of what provision was made for public participation in the making of the decision,

(bb) a statement regarding the right to challenge the validity of the decision and the procedures for doing so,

(d) a statement that the matters referred to in paragraph 19(1) have been taken into considerations.]

The order

[21. (1) Where the Secretary of State proposes to make the order applied for with modifications which appear to him substantially to affect the character of the order he–

(a) shall take such steps as appear to him to be sufficient and reasonably practicable for informing the applicant and other persons likely to be concerned, and

(b) shall not make the order until such period for consideration of, and comment upon, the proposed modifications by the applicant and those other persons as he thinks reasonable has expired.

(2) The Secretary of State shall not make the order with a modification authorising the compulsory acquisition of land that was not described in the draft submitted to him as land subject to be acquired compulsorily, unless all persons interested consent. ]

[22. (1) This paragraph applies where the Secretary of State makes an order which authorises the compulsory purchase of land and is–

(a) a harbour revision order relating to a harbour in England or Wales, or

(b) a harbour empowerment order relating to a harbour or to works to be carried out in England or Wales.

(2) The order shall be subject to special parliamentary procedure to the same extent as it would be, by virtue of section 18 or 19 of the Acquisition of Land Act 1981 or paragraph 5 or 6 of Schedule 3 to that Act (National Trust land, commons etc), if it were an order under section 2(1) of that Act.]

[23. (1) This paragraph applies to–

(a) a harbour revision order relating to a harbour in Scotland, or

(b) a harbour empowerment order relating to a harbour or to works to be carried out in

Scotland,

where the order authorises the compulsory purchase of land.

(2) The order shall be subject to special parliamentary procedure to the same extent as it would be, by virtue of section 1(2)(b) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (land forming part of a common or open space or held inalienably by the National Trust for Scotland) if it were an order under section 1(1) of that Act]

[24. (1) As soon as possible after a harbour revision order has been made, the applicant shall–

(a) publish a notice by Gazette and local advertisement,

(b) serve on the harbour authority (unless the applicant is the harbour authority) a copy of the order and a copy of any map annexed to it,

(c) serve a copy of the order and of any map annexed to it on each local authority on whom, in compliance with a requirement imposed by virtue of paragraph 12, a notice was served, and

(d) serve a copy of the order and of any map annexed to it on each person on whom, in compliance with a requirement imposed by virtue of paragraph 14, a copy of the draft order was served.

(2) The notice mentioned in sub-paragraph (1)(a) must–

(a) state that the order has been made,

(b) name a place where a copy of the order and any map annexed to it may be inspected at all reasonable hours, and

(c) state, in the case of an order which is not subject to special parliamentary procedure, the date on which it comes into operation.]

(c) if subsection (4) of section 54A of this Act does not apply to the statutory instrument containing the order, give information regarding –

(i) the date on which the order comes into operation, and

(ii) the right to challenge the validity of the order and the procedure for doing so, and

(d) if that subsection does not apply to the statutory instrument containing the order, state that the instrument cannot come into force until the Scottish Parliament, by resolution, approves it.

(a) stating that the Parliament has, or as the case may be has not, passed a resolution approving the instrument, and

(b) where a resolution has been passed, providing information regarding –

(i) the place where a copy of the order and any map annexed to it may be inspected at all reasonable hours,

(ii) the date on which the order comes into operation, and

(iii) the right to challenge the validity of the order and the procedure for doing so.

Statutory undertakers' land

[25. (1) This paragraph applies where application is made to the Secretary of State for a harbour revision order which will authorise the compulsory acquisition of land which includes land which has been acquired by statutory undertakers for the purposes of their undertaking.

(2) If on a representation made to it the appropriate authority is satisfied–

(a) that any of the said land is used for the purposes of the carrying on of the statutory undertakers' undertaking, or

(b) that an interest in any of the said land is held for those purposes, the order shall not be so made as to authorise the acquisition of any such land unless sub-paragraph (3) applies.

(3) This sub-paragraph applies where that authority certifies that the nature and situation of the land are such–

(a) that, without serious detriment to the carrying on of the undertaking, it can be acquired and not replaced, or

(b) that, if acquired, it can, without such detriment as aforesaid, be replaced by other land belonging to, or available for acquisition by, the undertakers.

(4) The representation mentioned in sub-paragraph (2) must be made before the expiry of the period of 42 days starting with the date on which the notice that the application has been made for the order first appears in a local newspaper.

(5) In this paragraph “statutory undertakers” means any person authorities by an Act (whether public general or local) or by any order or scheme made under or confirmed by an Act to carry on any of the following undertakings–

(a) a railway, light railway, tramway or road transport undertaking;

(b) an undertaking the activities of which consist in–

(i) the maintenance of a canal;

(ii) the conservation or improvement of a river or other inland navigation;

(iii) the improvement, maintenance or management of a harbour (whether natural or artificial), port, haven or estuary, a dock (whether used by sea-going ships or not) or a wharf, quay, pier, jetty or other place at which ships (whether sea-going or not) can ship or unship goods or embark or disembark passengers; or

(iv) the provision and maintenance of a lighthouse; or

(6) In this paragraph, “the appropriate authority” means–

(a) in relation to a statutory undertaker authorised to carry on an undertaking whose activities consist in the improvement, maintenance or management of–

(i) a fishery harbour in England, the Minister of Agriculture, Fisheries and Food; or

(ii) a fishery harbour in Wales, the National Assembly for Wales;

(b) in relation to a statutory undertaker authorised to carry on an undertaking in Scotland, and in relation to whom the relevant Ministerial function has been transferred to the Scottish Ministers under the Scotland Act 1998, the Scottish Ministers; and

[ Part II

Orders Made by the Secretary of State of His Own Motion ]

Notices

[26. (1) Where the Secretary of State proposes to make a harbour revision order of his own motion, he shall first–

(a) publish a notice by Gazette and local advertisement and in such other ways as he thinks appropriate, and

(b) serve on the harbour authority, and on any other person who he thinks ought to have notice of the proposal, a copy of the of the draft order and a notice.

(2) The notice mentioned in sub-paragraph (1)(a) must–

(a) state that the Secretary of State proposes to make the order,

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

(d) state that any person who desires to object to the proposal 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 specified in the notice.

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

(4) The notice mentioned in sub-paragraph (1)(b) must–

(a) state that the Secretary of State proposes to make the order, and

(b) state that if the harbour authority or other person served desires to object to the proposal 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.]

Objections

[27. (1) The following paragraphs in this Part have effect where–

(a) all notices concerning a proposal of the Secretary of State to make a harbour revision order have been published under paragraph 26(1)(a),

(b) all notices and other documents which are required to be served under paragraph 26(1)(b) have been served, and

28. (1) This paragraph applies if an objection to the proposal was made to the Scottish Ministers and has not been withdrawn.

(2) It does not, however, apply if-

(a) the Scottish Ministers decide that the proposal is not to proceed further;

(b) they consider the objection is frivolous or trivial;

(d) the objection was not made within the period allowed for making it.

(3) Before making their decision under paragraph 29, the Scottish Ministers may-

(a) cause an inquiry to be held; or

(b) give to the person who made the objection referred to in sub-paragraph (1) an opportunity of appearing before and being heard by a person appointed by them.

(4) Where-

(a) the objection referred to in sub-paragraph (1) is made by a council constituted under the Local Government etc. (Scotland) Act 1994 (c.39) for an area in which the harbour (or any part of it) is situated or by the harbour authority; and

(b) the council or the authority informs the Scottish Ministers in writing that it wishes the objection to be referred to an inquiry or dealt with in accordance with sub-paragraph (3)(b),

the Scottish Ministers shall, before making their decision under paragraph 29, either cause an inquiry to be held or, if they so determine, cause the objection to be dealt with in accordance with sub-paragraph (3)(b).

(5) Where an objector is heard in accordance with sub-paragraph (3)(b), the Scottish Ministers shall allow such other persons as they think appropriate to be heard on the same occasion.

The decision

29. (1) The Secretary of State shall consider-

(a) any objections made and not withdrawn;

(b) the report of any person who held an inquiry and of any person appointed for the purpose of hearing an objector under paragraph 28; and

(2) Following the consideration required by sub-paragraph (1) the Secretary of State shall decide-

(a) not to make the order proposed,

(b) to make the order in the form of the draft, or

The order

[30. Where the Secretary of State proposes to make the order with modifications which appears to him substantially to affect the character of the order as originally proposed to be made, he–

(a) shall take such steps as appears to him to be sufficient and reasonably practicable for informing persons likely to be concerned, and

(b) shall not make the order until a reasonable period for consideration of, and comment upon, the proposed modifications by those persons has expired. ]

[31. (1) As soon as possible after a harbour revision order has been made by the Secretary of State of his own motion he shall–

(a) publish a notice by Gazette and local advertisement, and

(b) serve a copy of the order on each person on whom notice was served under paragraph 26(1)(b).

(2) The notice mentioned in sub-paragraph (1)(a) must contain the information specified in paragraph 24(2).

[(a) state that the order has been made, and

(b) name a place where a copy of the order may be inspected at all reasonable hours.]

(3) As soon as possible after the Scottish Parliament has decided whether or not to approve under section 54A(4)(b) of the Act a statutory instrument containing a harbour revision order made by the Scottish Ministers of their own motion, those Ministers shall publish by Gazette and local advertisement a notice containing the information specified in head (a) of sub-paragraph (3) of paragraph 24 and, if appropriate, that specified in head (b) of that paragraph.]

[ Part III

Harbour Empowerment Orders: Modifications of Part I ]

[32. (1) The modifications subject to which Part I of this Schedule is, by virtue of section 17(1)(g) of this Act, to have effect with respect to the procedure for the making of harbour empowerment orders by the Secretary of State are those set out in this paragraph.

(2) For references to a harbour revision order that shall be substituted references to a harbour empowerment order.

(3) For paragraph 13 and 14 there shall be substituted–

13. (1) The Secretary of State may require the applicant to serve on any specified person within any specified period of time a copy of the draft order and of any map accompanying the application together with a notice stating–

(a) that the application has been made to the Secretary of State, and

(b) that, if the person wishes to object to the application 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.

(2) The copy of the map referred to in sub-paragraph (1) must be drawn to the same scale as that map.

(3A) Paragraph 18(1D)(aa) shall be omitted.

(4) Paragraph 24(1)(b) shall be omitted, and for the reference, in paragraph 24(1)(d), to paragraph 14, there shall be substituted a reference to paragraph 13(1). ]

Transposition NoteTransposition of Directive 2003/35/Ec of the European Parliament and of the Council on Public Participation on the Effects of Certain Public and Private Projects on the Environment.

Directive 2003/35/EC providing for public participation in the assessment of the effects of certain public and private project on the environment ins known as the Public Participation directive. It requires Member States to take certain measures to enable the public to participate in the drawing up of certain plans and programmes under existing environmental legislation

Harbours

This transposition note concerns only the requirements under Article 3 of the Public Participation Directive relating to the assessment of the environmental effects of those projects which are likely to have significant effects on the environment as per Article 1 of the Environmental Impact Assessment Directive (Council Directive 85/337/EEC as amended by 97/11/EC).

The table shows how provisions of Article 3 of the Public Participation Directive have been transposed by the Transport and Works (Scotland) Act 2007 into the Harbours Act 1984.

Relevant Articles of the Public Participation Directive	Provision of the Transport and Works Act 2007	Effect of New Provision
Article 3(1) contains the definition of “the public” for the purposes of Article 3, being “one or more natural or legal persons, and in accordance with national legislation or practice, their associations, organisations and groups”. Article 3(1) also contains the definition of “the public concerned” for the purposes of Article 3, being “the public affected or likely to be affected by, or having an interest in, the environmental decision making procedures referred to in Article 2(2); for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”.	It is not considered necessary to define “the public” in the terms of the Article 3(1). The distinction has already existed in the Directive even though the terms have not been previously defined. This therefore does not require transposition.	No new provision required.
Article 3(2) requires Member States to decide, on a case by case basis, if so provided under law, not to apply this Directive to projects serving national defence purposes, if they deem that such application would have an adverse effect on these purposes.	The provision is to be fully transposed through the UK government’s equivalent legislation as national defence is a reserved matter.	No provision required
Article 3(3)(a) requires Member States to consider whether another form of assessment would be appropriate where a project may be exempted under Article 3(2). Article 3(3)(b) requires Member States to make available to the public concerned the information obtained under other forms of assessment referred to in 3(3)(a), the information relating to the exemption decision and the reasons for granting it.	The Harbours Act 1964 makes no provision for exemption from EIA so it is not necessary to transpose these amendments.	No provision required
Article 3(4) replaces Article 6, paragraphs 2 and 3 of the EIA Directive by requiring that: 4.– (2) the public shall be informed, whether by public notices or other means such as electronic media where available, of the following matters early in the environmental decision making procedures referred to in Article 2(2) and at the latest, as soon as information can reasonably be provided: (a) the request for development consent (b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies; (c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions; (d) the nature of possible decisions or, where there is one, the draft decision; (e) an indication of the availability of the information gathered pursuant to Article 5; (f) an indication of the times and places where and means by which the relevant information will be made available; (g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article. 4.– (3) Member States shall ensure that, within reasonable time frames, the following is made available to the public concerned; (a) any information gathered pursuant to Article 5; (b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article; (c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information, information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article. 4.– (4) that the public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken. 4.– (5) that detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of public enquiry) shall be determined by the Member States. 4.– (6) that reasonable timeframes for the different phases shall be provided, allowing sufficient time in informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article	Section 25(5) inserts new paragraphs 10(2)(ca) and 10A and amends 10(2)(f) and 10(4) and 15(b) of Schedule 3 to the Harbours Act 1964 to give effect to the Directive.	Section 25(5) amends the existing provisions in the Harbours Act 1964 relating to environmental assessment of harbour projects by providing for information to be included in the notice of the environmental statement. New paragraph 10(2)(ca) of Schedule 3 makes provision for information to be made available to the public concerned. Paragraph 10(2)(f) and new paragraph 10(2)(g) of Schedule 3 make provision for public participation. Paragraph 10(4) of Schedule 3 is amended so as to specify the time-period that documents, including the environmental statement, are to be made publicly available. New paragraph 10A of Schedule 3 adds provisions concerning the receipt of further information and places on a statutory footing the requirement that any environmental information relevant to the decision on the environmental statement which is received by Scottish Ministers after the initial publicity of information about the environmental statement has taken place, should also be publicised. Paragraph 15(b) of Schedule 3 is amended so that consultation bodies are provided with further information that may be received under the provisions of paragraph 10A of Schedule 3.
Article 3(5) amends Article 7 of the EIA Directive (a) replacing paragraphs 1 and 2 with the following: 1.Where a Member State is aware that a project is likely to have significant effects on the environment in another Member State or where a Member State likely to be significantly affected so requests, the Member State in whose territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no later than when informing its own public inter alia: (a) a description of the project, together with any available information on its possible transboundary impact; (b) information on the nature of the decision which may be taken, and shall give the other Member State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article. 2.If a Member State which receives information pursuant to paragraph 1 indicates that is intends to participate in the environmental decision-making procedures referred to in Article 2(2), the Member State in whose territory the project is intended to be carried out shall, if it has not already done so, send to the affected Member State the information required to be given pursuant to Article 6(2) and made available pursuant to Article 6(3)(a) and (b). (b) paragraph 5 shall be replaced by the following: ‘5. The detailed arrangements for implementing this Article may be determined by the Member States concerned and shall be such to enable the public concerned in the territory of the affected Member State to participate effectively in the environmental decision-making procedures referred to in Article 2(2) for the project.’	Section 25(5) amends paragraph 16 of Schedule 3 to the Harbours Act 1964 to give effect to the Directive.	Paragraph 16(4)(b) of Schedule 3 is amended so that the other Member State is provided with further information that may be received under the provisions of paragraph 10A of Schedule 3 in respect of the contents of the notice of environmental statement to transboundary cases.
Article 3(6) amends Article 9 as follows: (a) Paragraph 1 shall be replaced by the following; ‘1. When a decision to grant or refuse development consent has been taken, the competent authority or authorities shall inform the public thereof in accordance with the appropriate procedures and shall make available to the public the following information: the content of the decision and any conditions attached thereto, having examined the concerns and opinions expressed by the public concerned, the main reasons and considerations on which the decision is based, including information about the public participation process, a description where necessary of the main measures to avoid, reduce and, if possible, offset the major adverse effects.’ (b) Paragraph 2 shall be replaced by the following; ‘2. The competent authority or authorities shall inform any Member State which has been consulted pursuant to Article 7, forwarding to it the information referred to in paragraph 1 of this Article. The consulted Member States shall ensure that that information is made available in an appropriate manner to the public concerned in their own territory.’;	Section 25(5)(c) amends paragraph 20(2) of Schedule 3 of the Harbours Act 1964 to give effect to Article 9(1) of the Directive. Section 25(5)(f) amends paragraph 16(7) of Schedule 3 of the Harbours Act 1964 to give effect to Article 9(2) of the Directive.	Paragraph 20(2) of Schedule 3 is amended to provide for how information shall be published (i.e. by Gazette and local advertisement) and further details as to the content of the information, particularly in respect of the extent of public participation in the making of the decision. New paragraph 16(7)(ba) is inserted to Schedule 3 so as to provide information to consulted Member States as to the extent of public participation in the making of the decision.
Article 3(7) requires the insertion of a new Article into the Directive, Article 10a. ‘Article 10a Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a) having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this is a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omission subject to the public participation provisions of this Directive. Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not prohibitively expensive. In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.’	Section 25(2) inserts new subsections (6) to (8) to section 44 of the Harbours Act 1964 to give effect to Article 3(7).	Section 24(2) inserts new subsections (6) to (8) to section 44 of the Harbours Act 1964 to introduce a new requirement on the decision making authority, to make available practical information concerning access to the courts/judicial review procedures when informing the public of final decisions. The new subsection (6) gives environmental non-governmental organizations (NGOs) an interest in seeking review before a court. .
Article 3(8) amends Annex I by adding: ‘22. Any change to or extension of projects listed in this Annex where such a change or extension in itself meets the thresholds, if any, set out in this Annex.’;	Section 25(5)(a) amends paragraph 1 of Schedule 3 of the Harbours Act 1964 to update the definition of ‘the Directive’.	Paragraph 1 of Schedule 3 is amended so that definition of ‘the Directive’ takes account of the further amendment to Annex I made by Directive 2003/35/EC.
Article 3(9) amends Annex II, No 13, first indent, by adding at the end: ‘(change or extension not included in Annex I)’.	Section 25(5)(a) amends paragraph 1 of Schedule 3 of the Harbours Act 1964 to update the definition of ‘the Directive’.	Paragraph 1 of Schedule 3 is amended so that definition of ‘the Directive’ takes account of the further amendment to Annex II made by Directive 2003/35/EC.

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Transposition NoteTransposition of Directive 2003/35/Ec of the European Parliament and of the Council on Public Participation on the Effects of Certain Public and Private Projects on the Environment.