The Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008
| Jurisdiction | Scotland |
| Citation | SSI 2008/199 |
| Year | 2008 |
2008 No. 199
TRANSPORT AND WORKS
TRANSPORT
CANALS AND INLAND WATERWAYS
The Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008
Made 21th May 2008
Coming into force 22th May 2008
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 18(1)(a) and (2)(a) and (c) and 28(6) of the Transport and Works (Scotland) Act 20071and all other powers enabling them to do so.
In accordance with section 28(4) and (5) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.
Citation and commencement
1. This Order may be cited as the Transport and Works (Scotland) Act 2007 (Access to Land on Application) Order 2008 and comes into force on the day after the day on which it is made.
Interpretation
2. In this Order (unless the context otherwise requires)–
“the Act” means the Transport and Works (Scotland) Act 2007;
“application” means an application under article 5 and “applicant” means a person making, or proposing to make, an application;
“authorisation” means an authorisation under article 9(1)(a);
“authorised land” means the relevant land, or such part of the relevant land, which an applicant may enter by virtue of an authorisation;
“expiry date for representations” means the date, being a date not less than 28 days after the date of the notice to be served under article 6(1), which the applicant specifies in that notice as the final date for making representations;
“in writing” includes electronic transmission;
“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
“relevant land” means the land which the applicant wishes to enter by virtue of an authorisation.
Access to land
3.—(1) On–
(a)
(a) the grant of an authorisation; and
(b)
(b) having obtained any other consent, permission or licence required under any other enactment,
an applicant may enter authorised land for such of the purposes set out in paragraph (2) as are permitted by that authorisation.
(2) Those purposes are–
(a)
(a) in connection with construction, operation or works to which an order under section 1 of the Act (orders as to transport systems and inland waterways) would relate–
(i) inspecting and surveying authorised land or any other land;
(ii) searching or boring on and in the authorised land to ascertain for the purposes of the survey the nature of the subsoil; and
(iii) carrying out archaeological and environmental investigations and assessments on and in the authorised land; and
(b)
(b) obtaining passage over authorised land to enable the activities in sub paragraph (a) to be undertaken on and in other land.
(3) Entry to authorised land under paragraph (1) shall include the entry of such persons, vehicles, plant, materials and apparatus as may be required for the purposes which are permitted by the authorisation.
(4) Entry to authorised land pursuant to this article is subject to–
(a)
(a) the provisions of this Order;
(b)
(b) the terms of the authorisation and any conditions or limitations attached to it; and
(c)
(c) the terms of any agreement between the applicant and any person with an interest in the authorised land regarding the applicant’s entry to the authorised land.
Pre application conditions
4. No application may be made by an applicant unless the applicant–
(a) is considering making an application for an order to be made under section 1 of the Act; and
(b) has attempted to obtain entry to the relevant land with the agreement of the owner and (where their agreement is also required) of every tenant and occupier of that relevant land.
Application
5.—(1) An application for authorisation to enter relevant land shall be made in writing, dated and shall be addressed to the Scottish Ministers.
(2) A separate application shall be made by the applicant for each area of relevant land in separate ownership or which would likely be in separate ownership if an owner could be traced.
(3) In the application the applicant shall give the name and the address to which any request for further information, notice or other document to be given to the applicant are to be sent.
(4) Where an application is made by an agent on behalf of the applicant details of the agent’s authorisation must be appended to the application.
(5) The applicant shall submit with the application 2 copies of each of the following documents–
(a)
(a) a certificate of liability insurance specifying the level, and period, of cover, the matters for which cover is given and details of the person who is underwriting that cover or an explanation why such a certificate is not available;
(b)
(b) a report describing the construction, operation or works in respect of which the applicant will be proposing to make an application for an order under section 1 of the Act and the state of development of that proposal;
(c)
(c) a report of the attempt to seek entry by agreement with the owner and (where their agreement is also required) any tenant or occupier of the relevant land to which the application relates together with any reasons given if entry is refused;
(d)
(d) a plan of that relevant land and a schedule listing the names and addresses of the owner and every tenant and occupier of that relevant land and identifying with which of those persons the applicant has obtained an agreement regarding entry to that relevant land;
(e)
(e) a report of the reasons as to why entry to that relevant land is required and why that cannot be achieved without such entry;
(f)
(f) a report of each activity the applicant wishes to undertake in and on that relevant land including the type of activity, the impact on that relevant land, the duration required for entry, the preferred times and dates of entry and the number of persons, and details of any vehicles, plant, materials and apparatus, that will be required;
(g)
(g) a list of other consents, permissions or licences required under other enactments in connection with the proposed entry to that relevant land, which at the date of the application are being sought or which have been obtained or refused, specifying for each such consent, permission or licence–
(i) from whom the consent, permission or licence is or was required;
(ii) the date of the application for, 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; and
(h)
(h) a memorandum providing details of proposed arrangements or processes for reinstatement of that relevant land.
(6) The applicant may combine the reports, schedule, list and memorandum referred to in paragraph (5)(b) to (h) into a single document.
(7) The Scottish Ministers may dispense with the requirement for the applicant to provide the document in paragraph (5)(a) in any case where they consider it appropriate to do so.
(8) The applicant may provide the Scottish Ministers with any other material the applicant considers relevant in support of an application.
(9) The Scottish Ministers may direct the applicant to provide any other information that the Scottish Ministers may require in connection with an application.
Notice of application
6.—(1) The applicant shall as soon as possible after making an application serve a notice in (or as nearly as may be in) the form of Form 1 in the Schedule upon–
(a)
(a) the owner and every tenant and occupier of the relevant land to which the application relates; and
(b)
(b) any other person that the Scottish Ministers direct.
(2) The applicant shall also, as soon as possible after making an application, publish in at least one newspaper circulating in the locality, or each of the localities, in which the relevant land to which the application relates is situated, a notice in (or as nearly as may be in) the form of Form 2 in the Schedule.
(3) The notice to be published for the purposes of paragraph (2) may be combined with the newspaper notice of any other application by the applicant relating to other relevant land.
(4) If any person makes a request for further details as to the relevant land to which an application relates which is received by the applicant on or before the expiry date for representations, the applicant shall provide to that person, free of charge, further details sufficient to identify that relevant land.
(5) The applicant may comply with the applicant’s obligation under paragraph (4) by providing the person making the request with a plan showing the relevant land.
(6) As soon as practicable after making the application the applicant shall submit to the Scottish Ministers copies of–
(a)
(a) the notices served under paragraph (1) and confirmation of the date on which they were served; and
(b)
(b) each notice placed in a newspaper for the purposes of paragraph (2).
Representations
7.—(1) Any representations made in relation to an application shall only be representations for the purposes of this Order if–
(a)
(a) subject to paragraph (2), received by the Scottish Ministers on or before the expiry date for representations;
(b)
(b) made in writing;
(c)
(c) they state the grounds of the representations;
(d)
(d) they indicate who is making the...
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