TWA Good practice tips for applicants

1. It is in everybody’s interests that the process for deciding 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. It highlights some of the key messages that are explained in greater detail in the ‘Guide to TWA Procedures’ published on the Department’s web site.   

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

Importance of proper preparation before making an application

3. Where problems arise during the handling of an application, resulting in delays, these can often be tracked back to inadequate preparation before the application is submitted.  Generally speaking, 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.  Cutting corners during preparation - e.g. to ensure that an application is submitted by a pre-determined date - will almost certainly cost time and money in the long run.  

Appointment of legal advisers

4. Choosing who to appoint as its legal advisers will be one of the key decisions a prospective applicant makes. TWA orders are complex legal documents which, if approved, are made by way of a Statutory Instrument.  The 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, as the Department cannot ‘second guess’ these.

5. 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 Department, will have a critical bearing on how long an application takes before it is decided.  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 will be in the promoter’s interests to engage legal advisers who have the right skills and experience to draft a TWA order and to be able to respond to questions on it, and who have a good understanding of the statutory procedures. 

The importance of pre-application consultations

6.  Undertaking thorough and effective consultations before an application is made will almost certainly reap dividends later.  The extent of consultations required will depend upon the size and nature of the scheme.  But having a constructive and meaningful dialogue with those likely to be interested in or affected by a project can provide helpful feedback into its design, can help to allay fears and suspicions that may be based on a lack of understanding of the scheme, and can help greatly to limit the number of objections once an application is made. In particular, promoters are asked to consult key players in their area, such as local authorities, development agencies, public service providers, MP’s etc.  The importance of meaningful pre-application consultation is reinforced by the statutory procedure rules (see para. 9 below) which require a report summarising the consultations that have been carried out to accompany the application. 

The Environmental Statement (ES)

7.  An ES will be required for any scheme which is likely to have significant environmental effects. It is a particularly important document, which must comply with the legal requirements.  A well-prepared ES will form the backbone of the applicant’s case at a public inquiry, or during exchanges of written representations; and it can help to head off objections before then.  Conversely, an inadequate ES is likely to lead to requests for further environmental information during the application process, which can cause considerable delay and could 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 TWA Orders Unit

8.  As the process for considering applications for TWA orders is quasi-judicial in nature, the Department’s TWA Orders Unit (which receives and processes applications on behalf of the Secretary of State) 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. 

9. 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 TWA Orders Unit, at least 28 days before making an application.  This enables the 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

10.  Experience has shown that giving the 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 (e.g. an 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 the Department to pick up any mistakes or to correct sloppy drafting - the onus is still very much on them to make every effort to get the drafting right, and ensure the right powers are sought, in the first place.

11.  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 Department longer periods of notice such as this, the Department is able to give the draft order careful scrutiny and to relay comments back in time for the advisers properly to take those comments on board before making the formal application.

12.  Applicants and their advisers should also understand the importance of providing a good quality Explanatory Memorandum (EM) which explains clearly 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 Department to consider and comment meaningfully on provisions if it does not understand the reasons for them.  Furthermore, if the Department has to keep referring back to the applicant’s legal advisers in order to obtain a proper explanation of, and justification for, provisions in a draft order, this can be a very time-consuming process which can cause serious delay (see also para. 15 below). This is precisely why the requirement for an EM was introduced in the first place, in order to achieve a more efficient process.

Keeping control of the project

13. Although engaging suitable professional advisers is a key part of ensuring that matters are dealt with properly before and during the TWA process, it is also important that the applicants themselves should actively be involved in managing the project throughout, with the right amount of commitment and involvement at a suitably senior level. Applicants should ensure they remain fully aware of what their advisers are doing on their behalf so that they can give suitable direction to them as and when required.  To assist with this, the TWA Orders Unit ensures that any letters it sends to an applicant’s professional advisers are copied to the applicant.

Putting together application documentation

14.  The 2006 Rules referred to in para. 9 above specify, amongst other things, the documents that 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.  But any non-compliance is likely to cause unnecessary delay, particularly if an application has to be re-advertised as a consequence. This is another reason why it is valuable to engage advisers who are familiar with the process.  

15.  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 re-advertised.   The 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

16.  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.  

17.  Effort devoted to removing or limiting objections before an inquiry opens will almost certainly pay dividends.  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 Department’s consideration of the Order

18. Between the making of an application and the start of an inquiry (or written representations procedure) the 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 Department to pursue drafting points with applicants’ agents after the inquiry, or written procedure, closes – known as ‘the decision stage’.

19.  Delays at the ‘decision stage’ are especially liable to cause frustration amongst all parties, especially applicants.  A common cause of delay at this stage is due to the Department having to refer back to applicants’ legal advisers with further queries on the draft order.  Typically, this is because points raised by the 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. 

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

TWA Orders Unit, Department for Transport                            
October 2008