TRANSPORT AND WORKS 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 the grant of an authorisation; and 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 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 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 the provisions of this Order; b the terms of the authorisation and any conditions or limitations attached to it; and 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 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 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 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 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 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 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 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 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 the owner and every tenant and occupier of the relevant land to which the application relates; and 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 the notices served under paragraph (1) and confirmation of the date on which they were served; and 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 subject to paragraph (2), received by the Scottish Ministers on or before the expiry date for representations; b made in writing; c they state the grounds of the representations; d they indicate who is making the representations; and e they provide an address to which any correspondence relating to the representations may be sent. 2 The Scottish Ministers may in any particular case where they consider it appropriate to do so allow further time for making any representations beyond the expiry date for representations. 3 The Scottish Ministers– a shall, as soon as practicable after they have received representations, provide the applicant with a copy of the representations; and b may send a copy of any representations they have received to any other person, and may invite comments, in writing, from the applicant or such person within such period as the Scottish Ministers may specify. 4 The Scottish Ministers may, upon request, provide any person with a copy of any representations made by others. 5 The Scottish Ministers may send a copy of any comments they have received pursuant to this article to any person and may invite any further comments, in writing, from that person within such period as the Scottish Ministers may specify. Hearing 8 1 The Scottish Ministers may give to a person who has made representations an opportunity of appearing before and being heard by a person appointed by the Scottish Ministers for the purpose. 2 The persons entitled to appear at a hearing are– a the applicant; and b any person whose representations are to be dealt with at the hearing. 3 Nothing in paragraph (2) shall prevent the person appointed by the Scottish Ministers to hold a hearing from permitting any other person to appear at a hearing. 4 Any person entitled or permitted to appear may do so on that person’s own behalf or be represented by counsel, a solicitor or any other person. 5 The Scottish Ministers shall notify– a the applicant; and b any person whose representations are to be dealt with at a hearing, of the arrangements for the hearing not less than 28 days before the date on which the hearing is to take place. 6 The Scottish Ministers may vary the arrangements for a hearing and shall give such notice of any such variation as appears to them to be reasonable. 7 The applicant shall, not later than 14 days before the date on which the hearing is to take place (or by such later day as the Scottish Ministers may allow), publish a notice of the hearing 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. 8 The person appointed by the Scottish Ministers to hold a hearing shall determine the procedure at a hearing and shall state at the commencement of a hearing the procedure that person proposes to adopt subject to consideration of any submission by any of the persons specified in paragraph (2). 9 Subsections (6), (7) and (8) of section 210 of the Local Government (Scotland) Act 1973 (expenses of inquiries) apply to a hearing held under this article as they apply to a local inquiry under that Act. Consideration of the application 9 1 The Scottish Ministers shall, after consideration of the application, any representations, any comments pursuant to article 7 and paragraph (5) and the report of any person appointed under article 8(1), determine– a to grant authorisation to the applicant to take entry to the relevant land to which an application relates and, if so, the purposes in article 3(2) for which entry is permitted; or b to refuse to authorise entry to that relevant land. 2 A determination under paragraph (1) may authorise entry to part of the relevant land to which an application relates and refuse it to the remainder. 3 The Scottish Ministers may attach such conditions and limitations to an authorisation as they consider appropriate. 4 Without prejudice to the generality of paragraph (3) the conditions and limitations which the Scottish Ministers may attach to an authorisation include– a requiring prior notice before entry is taken; b the duration of the authorisation to take entry and restrictions as to the timing of entry including as to the days on which it may be taken; c restrictions as to the timing of undertaking any activity including as to the days on which it may be undertaken; d restrictions on entry to particular parts of the authorised land or for particular purposes; e requirements applying before, during or after entry is taken; f enabling the attendance of the owner or any tenant or occupier or their representative, if the owner or any tenant or occupier should wish it, at all times or at certain times or when performing a particular activity; g requiring notice to, and the agreement of, specified persons before undertaking a particular activity; h provision as regards the persons, vehicles, plant, materials and apparatus to which article 3(3) applies; i requiring a survey or audit of the condition of the authorised land to be completed and recorded prior to entry for the purposes permitted by the authorisation, or to entry for any specified purpose, commencing; and j requiring the making good of any damage done in entering or in consequence of entering the authorised land. 5 Where the Scottish Ministers propose to attach conditions or limitations to an authorisation in the event of it being granted, they may, where they consider it appropriate to do so– a serve a copy of those conditions or limitations on the applicant and other persons likely to be concerned; and b invite comments, in writing, from the applicant and those other persons within such period as the Scottish Ministers may specify. 6 As soon as practicable after making a determination under paragraph (1), the Scottish Ministers shall give notice of the determination, together with the reasons for it, to– a the applicant; and b the owner and every tenant and occupier of the land to which the authorisation relates or would have related in the case of a refusal to authorise entry to land. 7 Where the determination is to grant an authorisation to the applicant to enter all or part of the relevant land to which their application relates– a the notice under paragraph (6)(a) shall include the authorisation (including any conditions or limitations attaching to it); and b the notice under paragraph (6)(b) shall– i include a copy of the authorisation (including any conditions or limitations attaching to it); ii give information regarding the right of appeal to the sheriff under article 10; and iii state that an offence may be committed if entry is obstructed and the sheriff has by warrant authorised the applicant to enter the authorised land. 8 An authorisation shall have no effect– a before the expiry of the period within which an appeal to the sheriff under article 10(1) may be made; or b where an appeal under that article has been made, before the appeal is withdrawn or otherwise disposed of. Appeal to sheriff 10 1 Any person who is aggrieved by– a an authorisation; or b the terms of any condition or limitation attached, or the failure of the Scottish Ministers to attach a particular condition or limitation, to an authorisation, may, by summary application, appeal to the sheriff within 28 days of the giving of the notice required by article 9(6). 2 The sheriff in whose sheriffdom the authorised land or any part of it is situated has jurisdiction to hear an appeal under this article. 3 The decision of the sheriff in an appeal under this article may– a dismiss the appeal; b declare the authorisation to be of no effect in respect of all or part of the authorised land; or c modify an authorisation or modify or remove a condition or limitation attached to the authorisation or attach a condition or limitation to it. 4 The sheriff’s decision on such an appeal is final. Compensation 11 1 Where in the exercise of the power of entry of an applicant– a damage is caused to land or corporeal moveables; and b that damage has not been made good by the applicant, any person having an interest in the land or moveables may recover compensation in respect of that damage from that applicant. 2 Where in consequence of the exercise of the power of entry of an applicant any person is disturbed in their enjoyment of land or corporeal moveables, that person may recover compensation from that applicant in respect of the disturbance. 3 Any dispute as to the amount of any compensation payable by virtue of this article shall be referred to and determined by the Lands Tribunal for Scotland. 4 Sections 9 and 11 of the Land Compensation (Scotland) Act 1963 (procedure on reference to the Lands Tribunal and expenses) shall apply in relation to the determination of any such dispute as if– a the reference in section 9(1) of that Act to section 8 of that Act was a reference to paragraph (3); b in section 9(3) of that Act the words from “except that” to the end were omitted; and c references in section 11 of that Act to the acquiring authority were references to the applicant. Warrant 12 1 If it is shown to the satisfaction of the sheriff, on evidence on oath, that entry to authorised land has been refused, or that refusal is apprehended, the sheriff may by warrant authorise the applicant to enter the authorised land in accordance with article 3. 2 A warrant granted under paragraph (1) shall continue in force until the time when the purposes for which the warrant is granted are satisfied. Offence 13 A person who wilfully obstructs the applicant, or any person falling within article 3(3), where the applicant has been authorised to enter authorised land by virtue of a warrant under article 12 is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. Saving 14 The ability of a prospective applicant for an order under section 1 of the Act to obtain entry to land by virtue of the provision in this Order is in addition to any other power to obtain entry to land under any other enactment. STEWART STEVENSON Authorised to sign by the Scottish Ministers St Andrew’s House, Edinburgh 21st May 2008