Consultation outcome

Moving from paper application documents under the TWA 1992: government response

Updated 7 July 2023

Introduction

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.

Therefore, changes to the TWA rules were proposed 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, without seeking consent.

What we consulted on

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, or (for some applications relating to inland waterways made under section 3(1)(b) of the TWA) the Secretary of State for Environment, Food and Rural Affairs, 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. The TWA rules also allow the applicant to serve statutory consultees electronically, but only where their consent has first been obtained.

From 10 March to 7 April 2023, the Department for Transport (DfT) sought the views of stakeholders on proposed changes to the TWA rules, removing the need to seek waiver directions or consent, and enabling the sharing of documents by electronic means.

What we proposed

We proposed that the wording in the TWA rules be amended as follows:

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

See the current wording on legislation.gov.uk

Rule 10

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

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”

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”.”

The Transport and Works (Inquiries Procedure) Rules 2004

See the current wording on legislation.gov.uk.

Rule 2

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.”

Rule 7

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”.

Rule 24

be 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.”

Responses received

Number of responses	Type of respondent
3	Councils / Transport Authorities
3	Infrastructure managers
1	Regulators
2	Law Firms / Parliamentary Agents
1	Industry associations
2	Individuals
12	Total Responses received

9 out of the 12 respondents are involved in TWA applications or have been previously. 7 of those respondents have prepared TWA applications themselves, with 4 respondents involved in making TWA applications and 6 being in the position of responding to applications for TWA Orders.

Consultation response and government decision

Question 1 – Overall do you support or oppose a legislative change to allow applications for TWA Orders to progress by electronic method? Support/Oppose

Responses to consultation

Of the 12 responses, 10 supported the proposed legislative change.

Those respondents in support noted that the proposed change would relieve applicants of the administrative burden (including removing a need to apply for waiver directions to partially achieve the same aim) and be more environmentally friendly. It was also observed to reduce the administrative burden on sectors which operate on a not-for-profit basis.

The only response which did not support the proposed change referred to receiving notification by post of overnight railway engineering works. The other respondent did not know if they supported the change but did consider the proposals to be sufficient.

One other respondent commented that though they support the proposed change enabling electronic means, they would like this to be an additional option rather than a presumption that electronic means replaces paper copies. That respondent also commented that it supported the four copies of a submitted application being reduced to only one copy, but that it considered that copy should be in paper format.

Two respondents raised concerns about digital exclusion and accessibility where public locations, such as libraries, may not have computers or other means to view electronic formats, or where individuals live a distance away from a library with computer access.

Government’s conclusion

The proposed change relates to the ability to submit and progress electronic applications for orders, under the statutory process contained in the TWA. The notification of overnight railway engineering works falls outside the TWA statutory process and would be unaffected by these proposals.

Regarding the respondent who supports four submission copies being reduced to one copy, but still in paper format, the TWA rules provide that those four copies be submitted to the Secretary of State. This requirement does not apply to copies provided to statutory consultees, who would otherwise be unaffected by the number of copies.

The only impact for the respondent would be if they were acting as an applicant. In that situation, the proposed changes provide an ability to submit an application by electronic means, but it would remain possible for an applicant to submit using paper copies, if that was their preference. In addition, though the proposed legislative change would create a presumption of electronic copies being served on statutory consultees, they would still be able to request paper copies of application documents where required.

On the point about accessibility in libraries, the proposed change makes it possible for applicants to specify where documents can be viewed by electronic means, as an alternative to inspection in person. But the onus to make the documents publicly available remains on the applicant, who would need to satisfy themselves that a specified location with electronic access has that access or to make it available.

Libraries were mentioned as an illustrative example, as the appropriate public location is identified by the applicant on each application depending on local availability. Under the current TWA rules, the applicant is required to maintain a paper copy of the application documents in a public location (such as a library) for inspection. For an individual living a distance away from a library, the ability for an applicant to host the application documents on a website would improve their ability to engage with the TWA process.

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?

Responses to consultation

10 out of 12 respondents considered the proposals to be sufficient.

The respondent that considered the proposed legislative change was not sufficient, thought that the proposals should be amended to enable bespoke arrangements to be considered for accessibility reasons, including awareness and accessibility of applications, and the ability to engage with applications.

Government’s conclusion

As well as the response on question 1, the government considers that the proposed legislative change does enable bespoke accessibility arrangements, where necessary. Though an applicant would be able to provide application documents by electronic means, where required a statutory consultee would still be able to request copies of those documents in paper format. Being able to host documents on a website may also increase the types of formats by which documents can be accessed as technology evolves.

On awareness of application, it should be noted that applicants would still be required to publish notice of a TWA application being made in the London Gazette, in local newspapers and, where an application seeks authorisation for works, display physical paper notices near the proposed sites of those works.

Question 3 – Do you have any concerns about enabling applications for TWA orders to progress by electronic method?

Responses to consultation

Out of the 12 respondents, 7 had concerns about the proposals and 5 did not. Of those that had concerns, 3 respondents stated concerns about accessibility, 4 on the ability to engage with and respond in the process, 4 on awareness of applications being made and 1 on the effect of advancements in technology.

Comments were made on the need of paper copies being available in libraries for accessibility, that large documents may be unwieldy when accessed electronically and that websites should have a guide to the application with hyperlinks to navigate it. Others commented that paper copies should still be available to those requiring them but noted that this could be met through inclusion policies.

On awareness, it was highlighted that the correct email address and evidence of service would be needed, but that organisations could publish their preferred email address. One respondent highlighted concerns about storage and the duration that electronic documents are made available, but stated these concerns could be overcome by guidance.

Government response

The government has commented in response to questions 1 and 2 on the retained ability to request paper copies of documents and the potential increased accessibility from hosting documents electronically on websites. The points made about website navigation and file limitations could be met through guidance if required. It would be too prescriptive to set out this detail in legislation, which may become constrained as technology advances.

On electronic transmission by email, applicants need to satisfy themselves that they have met the TWA rule requirements on the submission, service and provision of documents. The proposed legislative change enables the applicant to provide the documents by electronic transmission but is drafted so that the applicant can determine the most appropriate method.

For example, the applicant may be in communication with several statutory consultees as part of its pre-application consultation and send the documents by a file sharing link to the email address of the person with which they are consulting. For those statutory consultees that are not engaging with pre-application consultation, the applicant might send a letter to the registered address of that consultee, containing a link to the website address where applications documents are hosted.

In terms of advancements in technology, the existing definition of “electronic transmission” in the current TWA rules is already wide enough to cover future developments in technology.

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?

Responses to consultation

Out of the responses, 9 out of 12 supported the proposed changes applying to applications where an application has been submitted or a notice of inquiry has been given. One respondent observed that they see no reason to delay legislating to provide digital access for TWA application documents, to achieve what tends to happen by consent in practice.

Two respondents did not know if this should be supported.

Government’s conclusion

The legislative change to the TWA rules will apply to new applications under the TWA, that have not yet been submitted at the date of the changes coming into force. Whilst we understand why the proposal to include on-going applications was largely supported, in the interests of fairness and clarity, the government has decided that the changes to the TWA rules will only apply to applications which have not yet been submitted at the date the proposed change comes into effect.

This is because, from the date of the new TWA rules, this provides clarity of the requirements for existing and for new applications, both for applicants and for statutory consultees. It provides fairness for those that are responding to an existing application, that they can expect to continue to receive application and / or inquiry documents by the same means as before the new TWA rules. It remains available for applicants to seek consent from those statutory consultees to receive documents electronically on existing applications.

Question 5 – What, if any, other comments do you have regarding enabling applications for TWA orders to progress by electronic method?

Responses to consultation

There were 6 respondents to this question. Of these, 3 reiterated their support for the proposals commenting that it would also bring ease of communication benefits, bring the TWA process in line with the regime under the Planning Act 2008 and would more accurately reflect working practices.

A point was raised by one respondent that assurance was needed that a paper copy of plans would still be made available to Parliament / National Archives for long term storage.

Another respondent suggested that a centrally maintained website for all TWA applications be considered and one respondent highlighted recent amendments to the notification rules for applications under the Planning Act 2008, which did not require the provision of electronic access to application documents (where libraries may not have such access). It was suggested that the proposed legislative change should be aligned to that change, and instead provide a telephone number in notices from which copies of application documents could be requested.

One respondent highlighted concern around evidencing service of application documents.

Government response

The first two points raised fall outside the scope of the consultation.

The response to question 3 sets out the need for an applicant to satisfy itself of the service requirements under the TWA rules and that the government would not want prescriptive requirements in legislation, which may constrain the TWA process as technology advances. It considers that such matters could be covered in guidance if required.

Question 6 - Any other comments?

Responses to consultation

There were 3 respondents to this question.

Comments were made that there would be a benefit to the taxpayer from print cost savings, incurred by public bodies making applications using the TWA process, which could be used instead to fund infrastructure upgrades. It was observed to be a sensible and logical step in an era of digital fluency where consultation in other planning processes by local authorities is in an electronic format.

One respondent highlighted some minor drafting changes to formatting which would provide clarity to the proposed legislative change.

Another respondent raised points on size and file format limitations for recipients, how that may affect service of documents and suggestions on requirements which would improve accessibility. It was noted that this information could be covered in guidance.

Government’s conclusion

The response to question 3 and 5 set out the government’s response on service requirements. It agrees that such matters could be covered in guidance if required.

Conclusion

Overall, we received positive support from respondents to the consultation. The legislative change proposed received wide support.

It is therefore our intention to proceed with this proposal. The proposed order is subject to the negative resolution procedure. It is our intention to lay the draft order before both Houses of Parliament and, providing the draft Order does not require debate in the Houses of Parliament, it will come into force 28 calendar days after being laid.

Once the order is in force it will allow applications for orders under the Transport and Works Act 1992 to be submitted and progress by electronic means, instead of using paper documents.

The responses to questions we posed in relation to this legislative change are set out below.

The government response should be read in consultation with the corresponding consultation document.