Consultation outcome

Moving away from paper documents to progress an order application under the Transport and Works Act 1992

Updated 7 July 2023

Applies to England and Wales

Executive summary

Orders under the Transport and Works Act 1992 (TWA) can authorise the construction or operation of railways, tramways, trolley vehicle systems, other guided transport systems, inland waterways and certain structures interfering with the rights of navigation of waterways in England and Wales.

The TWA enables the Secretary of State to make rules as to the form, content and approach to making an application - the TWA rules.

The TWA rules require that applications for orders be made and progressed in paper format, unless consent to electronic transmission is obtained.

The current practice of considering submitted hard copy applications is not reflective of modern working practices, which are predominantly carried out by use of email and other forms of electronic document sharing. This increased during the Covid pandemic when new, virtual ways of working had to be explored.

The consideration of TWA applications is out of step with other planning processes, such as applications for planning permission under the Town and Country Planning Act 1990, and development consent orders under the Planning Act 2008. These already use electronic methods instead of paper documents to submit, process and progress applications.

This consultation seeks your views on proposed changes to the TWA rules to allow applicants in England and Wales to submit and progress an application for an order under the TWA using electronic methods instead of by paper documents.

This would mean, for example, that the applicant would not send paper copies of the application and would instead be required to share copies of the application documents in an electronic form, such as on a website.

All the relevant documents would still be provided to the Transport and Infrastructure Planning Unit and any relevant statutory consultees, and the applicant would still be required to notify affected parties that it was making the application. But the notice sent to affected parties would detail a website where the application documents can be found instead of a physical location where paper documents are available to view. Though paper copies could still be provided when required, this would only be upon request.

This consultation is primarily aimed at all parties with an interest in the construction and operation of railways, tramways, trolley vehicle systems, other guided transport systems and inland waterways.

Consultation proposals

Section 1 of the TWA allows for orders to be granted in relation to the construction or operation of a transport system such as:

• a railway
• a tramway
• a trolley vehicle system
• a system using a mode of guided transport prescribed by an order made under section 2 of the TWA in England and Wales

The TWA and its provisions only apply in England and Wales. Scotland has separate TWA legislation and in Northern Ireland planning consents are delivered by other means.

Section 3 of the TWA allows for orders to be granted in relation to either:

• the construction or operation in England and Wales of an inland waterway
• the carrying out of works of a type prescribed by an order made under section 4 of the TWA, which interfere with rights of navigation in waters within or adjacent to England and Wales

An order granted under the TWA is a statutory instrument that will give the applicant the necessary powers to construct or operate the transport system or carry out the works. Any decision to make an order is made by the Secretary of State for Transport for schemes in England and the Welsh Government for schemes wholly in Wales.

Section 6 of the TWA allows the Secretary of State to make rules on the form, content and approach to making and, where necessary for interested parties and the public to inspect, an application for a TWA order (TWA rules).

The rules under the TWA are set out in the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006.

Section 9 of the Tribunal and Inquiries Act 1992 allows the Lord Chancellor to make rules on the procedure to be followed for statutory inquiries held by or on behalf of ministers.

Those rules are set out in the Transport and Works (Inquiries Procedure) Rules 2004.

Together, these two sets of rules make up the TWA rules.

In summary, the TWA rules mean that, when making an application, an applicant must:

• submit 4 paper copy sets of the application documents to the Secretary of State
• serve a paper copy set of the application documents on each of the prescribed list of statutory consultees - these are statutory bodies
• serve notice on those whose interests are affected by the proposal, such as landowners with details of where they can physically inspect a paper copy of the application documents
• maintain a paper copy of the application documents in public locations, such as libraries, for those interested in the proposals to inspect and make copies

If a public inquiry is held, an applicant must also:

• serve paper copies of inquiry documents on all the statutory consultees
• provide paper copies of inquiry documents to the inspector
• maintain an updated paper copy, set of all the documents, as an inquiry library
• provide paper copies of inquiry documents to those that request them

The TWA rules allow the Secretary of State to grant a direction to the applicant providing a waiver from certain TWA rules. For example, rather than the applicant having to provide 4 paper copy sets of the application, a waiver could permit them to provide only one set in an electronic format.

The wording of the TWA rules does not permit a general waiver to be issued and requires any request for a waiver to be made every time an application is made and for each request to be given individual consideration. The waiver also cannot extend to copies to be served on statutory consultees.

The TWA rules also allow the applicant to serve statutory consultees electronically, but only where their consent has first been obtained.

The need for change

Most organisations share documents electronically.

Electronic transmission results in a quicker transfer of information and documents to those affected by the proposals. These can be updated with relative ease, improving accessibility and opportunity to respond to the proposals. It is also more environmentally friendly, reducing the paper used to print documents.

The way the TWA rules currently operate means that, instead of affected parties asking for paper copy documents when appropriate, the reverse is true. The applicant for a TWA Order is required to provide paper copies of the full set of application documents, unless the recipient confirms they would prefer them in electronic form.

Currently, a full set of application documents (potentially 20 or more lever arch files) will be delivered to an affected party, whether they intend to participate in the process or not. For parties receiving these documents at a corporate office, in an environment where remote working is common and storage is limited, the requirement to provide paper copies is not reflective of modern working practices.

In addition, a significant amount of time and money is invested by applicants in ensuring that the requirements on paper copy documents in the TWA rules are met. It would be more efficient for that resource to be directed to engaging with the parties affected by the proposals to seek resolution of any concerns and to progress the application.

The proposed changes

Amendment of the wording in the TWA rules to modernise the process

To make the proposed change from paper applications to submission and progression by electronic methods, the TWA rules would need to be amended as set out below.

An example of what the new wording would mean in practice is explained next to the change.

The Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006

See the current wording on legislation.gov.uk.

The following would change the requirements on an applicant when it submits, and serves on the relevant statutory consultees, an application for a TWA order. The applicant would still be required to serve and publish notice that the application has been submitted.

It is proposed that these changes would only apply to applications and pre-application drafts, requests for an environmental impact assessment screening decision or requests for a waiver of requirements in relation to an application, where it is submitted after the changes have come into force.

Applications submitted prior to this commencement date would continue to be governed by the current TWA rules.

Change

In rule 10, paragraph (1) shall be omitted and in paragraph (2) for “4 copies” there is substituted “a copy”.

Explanation

Rule 10 requires the applicant to send 4 copies of the application and all application documents to the Secretary of State. The current practice is for the Secretary of State to retain one set, provide 2 sets to the Inspector (if there is an inquiry) with the fourth set being provided for the inquiry library.

This change means that the applicant would only need to provide one copy to the Secretary of State, without having to seek a waiver direction for each application. Coupled with the change to Rule 27, this would no longer need to be a paper copy, unless one was requested.

Change

In rule 14, for paragraph (5)(e) there is substituted:

“(5)(e) the names or details of:

(i) all places, which shall be places within the area to which the proposals in the proposed order relate (or as close as reasonably practicable to that area) where, at all reasonable hours until the expiry date for objections:

(aa) the application; and

(bb) the documents which are required by these Rules to accompany it,

may be inspected free of charge or be viewed by electronic means; or

(ii) a website where a copy of the application and of the documents required by these Rules to accompany it are displayed; and”

Explanation

Rule 14 includes a requirement to include in the local newspaper notice the names of places where paper copies of the application and accompanying documents may be inspected.

This change would mean that instead of providing a paper copy of the application for inspection at a public location i.e. a library, the applicant could provide details of a website address where the documents can be accessed. For those without access to the internet, the change in (5) (e)(i) would provide locations where access electronically has been made available. For example, libraries with computer access.

Equivalent changes are proposed to paragraph 12(b) of Schedule 7, which applies to a proposal of the Secretary of State to make an order under section 7 of the TWA.

Change

Rule 27 be amended as follows:

A. in paragraph (2), for “Where a notice” there is substituted “Subject to paragraph (2A), where a notice”;

B. After paragraph (2) there is inserted – “(2A) No consent is required for the purposes of paragraph (2) in the case of a notice or other document required to be served on or sent to the Secretary of State or a body or person mentioned in rules 13(1), to (4) or 25”; and

C. After paragraph (5) there is inserted – “(6) In this rule, “served or sent” includes “submitted” or “provided”.”

Explanation

Under rule 27 documents may be served by electronic submission but only if the recipient has consented, which consent may be withdrawn. The change removes the need to obtain consent where the recipient is the Secretary of State, the Inspector (or person holding a public hearing) and key statutory bodies, for example local authorities, coastal authorities, the Environment Agency, Natural England.

The applicant would still need to submit, serve or send a copy of the application documents to / on those bodies, but that could be in an electronic method. Under rule 27(3), those served would still be able to request paper copies of documents if needed.

The change would also enable the Secretary of State to provide the Inspector with electronic copies of objections and representations received regarding the application.

The Transport and Works (Inquiries Procedure) Rules 2004

See the current wording on legislation.gov.uk.

The following would change the requirements on an applicant if the Secretary of State has determined that a public inquiry on the application is to be held.

It is proposed that these changes would only apply to inquiries where the Secretary of State issues notice of their intention to hold an inquiry after the date when the changes have come into force; where a notice is issued prior to this date the subsequent inquiry will continue to be governed by the current TWA rules.

Where a decision of the Secretary of State on an application to which the current TWA rules apply is quashed in court proceedings after the proposed changes have come into force, the decision shall be re-determined in accordance with the TWA rules as amended by the proposed changes.

Change

After rule 2(2) insert:

“Requirements in rules 7(9), 12(5), 16(8), 17(2) and 21 to give any person who so requests an opportunity to inspect and take copies of any document or to provide copies to them, shall also be taken to have been satisfied where that person is notified of:

(a) publication of the document on a website;

(b) the address of the website;

(c) the place on the website where the document may be accessed and how it may be accessed;

(d) details of where and when any document may be inspected or viewed by electronic means;

(e) details of where and when copies of any document may be obtained;

(f) whether a charge will be made for copies of any document available for inspection or viewing and if so the amount of any change.”

Explanation

Rules 7, 12(5), 16, 17 and 21 require the applicant and others to serve hard copies of statements, reports and other documents and also contain requirements to make hard copies available at specified places for public inspection.

The effect of the change is that:

It removes the need to send paper or electronic copies to individual recipients. These can instead be put on a website subject to a notice being sent giving details and for the documents to be made available for inspection at specific places and times which could be by electronic means. The notice giving those details can be sent electronically.

It removes the need to make paper copies of documents available for inspection. As above, they can instead be put on a website subject to notice being given.

Change

For rule 7(2)(b) substitute:

“(2)(b) upon each statutory objector and each person who is required to serve a statement of case under paragraph (3) a notice giving:

(i) the names of all places, within each area in which the proposals contained in the application are to have effect (or as close as reasonably possible to any such area) where, at all reasonable hours until the date of commencement of the inquiry, a copy of every document or the relevant part of any document which the applicant intends to refer to or put in evidence may be inspected free of charge or viewed by electronic means; or

(ii) details of a website where a copy of the application and of the documents required by these Rules to accompany it are displayed; and”.

Explanation

Rule 7 requires that the applicant serve statements of case, and documents referred to in them, on the Secretary of State and those involved in any public inquiry. The applicant is also to give any person who requests reasonable opportunity to inspect and, where practicable, take copies of those documents.

The change would allow these requirements to be met by putting the documents on a website and making them available to be viewed by electronic means at specified times and places. The documents would still be available to be inspected and paper copies obtained if needed.

Change

Rule 24 is amended as follows:

(A) For paragraphs (1) and (2), substitute:

“(1) Notices or documents required or authorised to be served or sent under any of the provisions of these rules may be effected by:

(a) sending by post;

(b) subject to paragraphs (2) to (5), sending by electronic transmission; or

(c) subject to compliance with the requirements in paragraph (6), publishing them on a website maintained by or on behalf of the applicant.”.

(2) Where a notice or other document required to be served or sent for the purposes of these Rules is served or sent by electronic transmission the requirement shall be taken to be fulfilled where the recipient of the notice or other document to be transmitted:

(a) is the Secretary of State, the Inspector or a body mentioned in rule 13(1) to (4) of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006; or

(b) has given their consent to the use of electronic transmission, either in writing or by electronic transmission.”

(B) For paragraph (4), substitute:

“(4) A person may:

a. revoke their consent to the use of electronic transmission; or

b. request that the use of electronic transmission ceases,

in accordance with paragraph (5). “

(C) In paragraph (5), for “is no longer” substitute “is not”.

(D) After paragraph (5), insert:

“(6)The requirements referred to in paragraph (1)(c) are that the person upon whom the notice or other document is being served or sent is notified in writing of:

(a) the publication of the relevant document on a website;

(b) the address of the website;

(c) the place on the website where the document may be accessed and how it may be accessed;

(d) details of where and when copies of documents may be inspected or viewed by electronic means;

(e) details of where and when copies of documents may be obtained; and

(f) whether a charge will be made for copies of any document available for inspection or viewing and if so the amount of any charge.”

Explanation

Rule 24 allows documents to be served by electronic submission but only if the recipient has consented, which consent may be withdrawn. The change would remove the requirement to first obtain consent for electronic service of notices and documents on the Secretary of State, the Inspector and the key statutory bodies listed in the TWA rules.

Rules 7, 12(5), 16, 17 and 21 require the applicant and others to serve hard copies of statements, reports and other documents and also contain requirements to make hard copies available at specified places for public inspection.

The effect of the change is that:

Notices or documents can be served by electronic transmission in all cases without the recipient’s consent being required.

It removes the need to send paper or electronic copies to individual recipients. These can instead be put on a website subject to a notice being sent giving details and for the documents to be made available for inspection at specific places and times which could be by electronic means. The notice giving those details can be sent electronically.

It removes the need to make paper copies of documents available for inspection. As above, they can instead be put on a website subject to notice being given.

New paragraphs (1) to (6) of rule 24 are based on rule 21 of the Infrastructure Planning (Examination Procedure) Rules 2010 but do not place an obligation on the applicant or the Secretary of State to maintain an Inquiry website. It provides a means of fulfilling the requirements in rules 7, 12(5), 16, 17 and 21.

Impact assessment

The TWA rules are enabling regulations only and the proposed change will allow for future applications under the TWA to be submitted and progressed by electronic methods.

The proposed change will not impose any direct obligations or costs on industry, business or any other body and therefore an impact assessment is not required.

Go to the section of this document with the full list of consultation questions relating to the proposed legislative change and its impact.

How to respond

See the Ways to respond section on the consultation homepage to respond to this consultation.

What will happen next

A summary of responses, including the next steps, will be published on GOV.UK. Paper copies will be available on request.

If you have questions about this consultation, please contact:

Planning Policy, Housing and Transport
Department for Transport
Floor 1, Great Minister House
33 Horseferry Road
London
SW1P 4DR

Email: TWAmodernisation@dft.gov.uk

Full list of consultation questions

This list provides an overview of the questions we are asking.

To respond to this consultation and explain your answers, visit the Ways to respond section of the consultation homepage on GOV.UK.

Question 1

Overall do you support or oppose a legislative change to allow applications for TWA Orders to progress by electronic method?

Question 2

In your view is the proposed legislative change sufficient or non-sufficient to enable applications for TWA Orders to progress by electronic method?

Question 3

Do you have any concerns about enabling applications for TWA Orders to progress by electronic method?

Question 4

Would you support the proposed changes being applied to applications:

• which have already been submitted?
• where a notice of inquiry has been given?

Question 5

What, if any, other comments do you have regarding enabling applications for TWA orders to progress by electronic method?

Question 6

Any other comments?

Consultation principles

The consultation is being conducted in line with the government’s key consultation principles.

If you have any comments about the consultation process please contact:

Consultation Co-ordinator
Department for Transport
Zone 1/29 Great Minster House
London SW1P 4DR

Email consultation@dft.gsi.gov.uk

Freedom of Information

Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

If you want information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.

The Department will process your personal data in accordance with the Data Protection Act (DPA) and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.

Data Protection

DfT is carrying out this consultation to gather evidence in relation to a specific change in legislation to allow applications for an order under the TWA to progress by electronic means.

This consultation and the processing of personal data that it entails is necessary for the exercise of DfT’s functions as a government department. If your answers contain any information that allows you to be identified, DfT will, under data protection law, be the controller for this information.

As part of this consultation, we’re asking for your name and email address in case we need to ask you follow-up questions about any of your responses. You do not have to give us this personal information. If you do provide it, we will use it only for the purpose of asking follow-up questions.

If you wish to remain anonymous, please refrain from disclosing personal information that would make you identifiable. DfT will process your personal data (name and address) and any other identifying material, in accordance with the Data Protection Act 2018 and the General Data Protection Regulation (“Data Protection law”) and your personal information will only be used for the purposes of this consultation. Your information will not be shared with third parties unless the data protection law allows it. Your information will be kept securely on DfT servers and destroyed within 12 months after the consultation has been completed.