Guidance

Transport and Works Act orders: good practice tips for applicants

Updated 14 July 2023

The process for deciding Transport and Works Act (TWA) order applications should be efficient, cost-effective and lead to well-informed decisions. This note offers suggestions on how applicants can help to ensure an efficient decision-making process, regardless of the eventual outcome.

Applicants who are unfamiliar with the TWA process are advised to read the brief guide, as well as considering the following guidance. They may also wish to talk to other promoters who have recent experience with the TWA process.

Importance of proper preparation before making an application

Where problems arise during the handling of an application, resulting in delays, this is often due to inadequate preparation before the application is submitted. How smoothly an application goes through the TWA process will largely depend on how much careful preparation there has been before the application is submitted.

Appointment of legal advisers

Choosing who to appoint as its legal advisers will be one of the most important decisions a prospective applicant makes. TWA orders are complex legal documents that, if approved, are made by way of a statutory instrument (SI).

The relevant government department will wish to be satisfied that the powers sought are appropriate, are suitably drafted for an SI, and can be justified in the public interest. But the onus is on applicants and their advisers in the first place to ensure that they are seeking all the powers they will need to implement their scheme properly.

How well a draft order is prepared in the first place, and how promptly and satisfactorily the applicant’s agents later respond to queries from the relevant government department, will have a critical bearing on how long the application process takes. If a draft order has significant defects, the process is liable to stall at an early stage while problems are addressed.

In view of this, and since the TWA procedures are quite detailed and complex, it is in the promoter’s interests to engage legal advisers with:

• a good understanding of the statutory procedures
• right skills and experience to draft a TWA order and to be able to respond to questions on it

The importance of pre-application consultations

Undertaking thorough and effective consultations before an application is made is important. The extent of consultations required will depend upon the size and nature of the scheme. Having a constructive dialogue with those likely to be interested in or affected by a project can:

• provide feedback on its design
• allay fears and suspicions based on a lack of understanding of the scheme
• help limit the number of objections once an application is made

In particular, promoters are asked to consult the likes of local authorities, development agencies, public service providers and MPs in their area. The importance of meaningful pre-application consultation is reinforced by the statutory procedure rules, which require a report summarising the consultations that have been carried out to accompany the application.

The environmental statement

An environmental statement (ES) will be required for any scheme that is likely to have significant environmental effects. It must comply with the legal requirements and will form the backbone of the applicant’s case at a public inquiry, or during exchanges of written representations. It can also help to head off objections before then.

An inadequate ES is likely to lead to requests for further environmental information during the application process, which can cause considerable delay and possibly result in a legal challenge. It is, therefore, very important to ensure that an ES, where required, is thoroughly prepared by people with relevant expertise in this field.

Guidance from the Transport Infrastructure Planning Unit

The Transport Infrastructure Planning Unit (TIPU), at the Department for Transport, receives and processes applications on behalf of the Secretary of State for Transport. As the process for considering applications for TWA orders is quasi-judicial in nature, TIPU has to remain neutral and impartial. The unit cannot, therefore, enter into any discussions with applicants on the merits of schemes or give any indication of what the decision might be. It is, however, willing to offer guidance on procedural and timing matters before an application is submitted.

Furthermore, the procedure rules governing the making of applications – currently the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006 – require applicants to submit a pre-application draft order and draft explanatory memorandum to the Secretary of State, via the TIPU, at least 28 days before making an application. This enables the relevant government department to give early consideration to a draft order and offer comments on it before an application is made, on the understanding that this is without prejudice to the Secretary of State’s eventual decision on the application.

Submitting pre-application drafts

Experience has shown that giving the government department the opportunity to comment on draft orders in advance of an application is very worthwhile. It enables the department to flag up any potential defects that it may spot (such as inappropriate use of powers or a significant omission) or to otherwise raise matters that may require more careful thought before an application is submitted. This, in turn, helps to ensure that draft orders are in better shape when they are formally submitted, thereby reducing the scope for problems and delays later.

Nevertheless, applicants and their advisers must not rely on government departments to pick up any mistakes or correct poor drafting. The onus is still very much on the applicant to make every effort to ensure the drafting is adequate and ensure the right powers are sought, in the first place.

The 2006 Applications Rules prescribe the minimum period (28 days) for the submission of the pre-application draft order. Applicants wishing to obtain the maximum benefit from this pre-application are advised, though, to allow 2 months or longer for this process to take place. Experience has shown that where applicants’ legal advisers give the relevant government department longer notice, the department is able to give the draft order careful scrutiny and to relay comments back in time for the advisers to properly take those comments on board before making the formal application.

Applicants and their advisers should also understand the importance of providing a good quality explanatory memorandum (EM) that clearly explains the purpose and effect of each provision in the order, including an explanation for any departures from model clauses. It is very difficult for the government department to consider and comment meaningfully on provisions if it does not understand the reasons for them.

Furthermore, if the government department has to keep referring back to the applicant’s legal advisers to obtain a proper explanation of, and justification for, provisions in a draft order, this can cause serious delays.

Keeping control of the project

Applicants should actively be involved in managing the project throughout with commitment and involvement at a suitably senior level. They need to remain fully aware of what their advisers are doing on their behalf so that they can give suitable direction as and when required. To assist with this, the Transport Infrastructure Planning Unit (TIPU) ensures that any letters it sends to an applicant’s professional advisers are copied to the applicant.

Putting together application documentation

The 2006 Rules specify that documents must be submitted with an application and the publicity that needs to be given. A significant failure to comply with the rules may render the application invalid and it may, therefore, be rejected. Non-compliance is likely to cause unnecessary delay, particularly if an application has to be re-advertised as a consequence. This is another reason to engage advisers who are familiar with the process.

It should be noted that the Secretary of State has the power, in rule 10(9) to require the applicant to provide further information if a document submitted with the application is not ‘adequate for its purpose’. Any further information provided may then need to be readvertised. The relevant government department might, for example, consider using this power if it considered that an EM failed to provide an adequate explanation of the provisions in the order, despite warnings given to this effect at the pre-application stage.

The public inquiry process

Most TWA order applications are contentious enough to warrant a public inquiry. There are statutory procedure rules applying to the inquiry process, currently the Transport and Works (Inquiries Procedure) Rules 2004. Many of the rules are concerned with securing maximum exchange of information before an inquiry opens so that the inquiry can focus on the matters that are really in dispute.

Effort devoted to removing or limiting objections before an inquiry opens is worthwhile. Even where objectors are unlikely to withdraw their objections, if the matters in dispute can be narrowed down before the inquiry, and agreed statements of common ground produced, this is likely to lead to a more efficient (and hence less costly) public inquiry.

The government department’s consideration of the order

Between the making of an application and the start of an inquiry (or written representations procedure), the government department will seek to resolve any concerns it has about the drafting of the order with the applicant’s legal advisers, without prejudice to the eventual decision. This is intended to minimise the need for the government department to pursue drafting points with applicants’ agents after the inquiry, or written procedure, closes – known as ‘the decision stage’.

Delays at the ‘decision stage’ are especially liable to cause frustration among all parties, especially applicants. A common cause of delay at this stage is due to the government department having to refer back to applicants’ legal advisers with further queries on the draft order. Typically, this is because points raised by the government department before an inquiry have not been answered (or not answered satisfactorily), or because applicants have sought further significant changes to the draft order during, or even after, the inquiry.

Applicants should, therefore, ensure that any queries raised by the government department on a draft order, at whatever stage, are dealt with promptly and satisfactorily to avoid any consequential delays.