Official Report 363KB pdf
Good morning. I am sorry for the slight delay in starting. I open formally the fifth meeting in 2005 of the Waverley Railway (Scotland) Bill Committee—our 13th meeting overall.
We are grateful to the committee for the opportunity to bring you up to date on the referencing review. Mr Fish and his team have been conducting an in-depth review of the referencing work in line with the methodology that the committee has seen.
Excuse me for a moment, Mrs Gorlov. We are having trouble hearing you above the sound of the fan. Can something be done about that? I will suspend for a few minutes until the problem is sorted.
Meeting suspended.
On resuming—
Let us try again. I ask Mrs Gorlov to speak up a wee bit while we try to sort out the fan situation. Thank you.
The review has proved to be a mammoth task because it involves a re-reference in all but name and the team has had to expand to provide the resource that the review work demands. The work is not complete and completion is expected within five weeks.
Thank you. Given the problems that we have had with the bill and the fact that inadequate time was given to completing the review, in the light of experience do you consider that the bill was put into the system far too soon to allow you to do the work that needed to be done?
No, but I am not the person who carried out the original reference and Mr Parry Jones should answer that.
So far as the methodology is concerned, we addressed the reference as we thought fit after taking advice from parliamentary agents, my colleague Alison Gorlov and the clerks. The methodology is completely untried in many respects; nobody has ever had to do this before. I do not think that we were premature in attempting to do what we had to do. Someone had to be first and it was left to the Waverley Railway (Scotland) Bill to be the first project to go ahead with this methodology and its guidance and requirements.
I go back to what Mrs Gorlov said about the brief that the promoter was given, the time that was given for the work and the fact that it could not go as far as the current review has gone. Is there any evidence that you and the promoter discussed doing a much more in-depth examination and review? Is there any correspondence asking for more time or suggesting a better way of doing things?
Are you talking about the review that took place back in November?
I am talking about the initial work that you did.
At the time, we discussed how long we would need to undertake the review and the level of certainty that would result from it. We were happy that we had adequate time and were able to undertake a review that would answer the questions that were being put to us.
It seems to me that the initial review was a cursory examination and that that is why you have now had to delve much deeper. In light of experience, do you regret that the initial work was not adequate?
I do not think that the work was inadequate—quite the reverse. However, we have now had the opportunity to do a further review. We find ourselves in a peculiar position because the level of scrutiny that the land referencing has had is unusual and, in my experience, quite unique. We have now begun a review, which my colleague Mr Fish is undertaking. It will go into more detail than the original land reference did. The reason why it is able to go beyond the original land reference is that we are reviewing a completed project; we are looking at a final picture rather than at a moveable feast, which is what the original land reference would have considered. The assurances that we gave in November were based on the same solid picture but, given the timescales required, we were confident that the land-referencing methodology had been followed closely and to a satisfactory level. We remain confident that the assurances that we gave the committee back in November were sound.
Did the parliamentary agent for the bill follow the same methodology that was applied to the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill, which was promoted before the Waverley Railway (Scotland) Bill?
Although the Stirling-Alloa-Kincardine Railway and Linked Improvements Bill was promoted before the Waverley Railway (Scotland) Bill, the work on the Waverley Railway (Scotland) Bill started some considerable time before the work on the SAK bill. The referencing arrangements were put in place for the first time for the Waverley Railway (Scotland) Bill.
So the methodology that was used for the SAK bill was different from that used for the Waverley Railway (Scotland) Bill.
It was no different. The methodology that was used was exactly the same as that which has been used for the bill that we are considering. There was a major difference in the scale, as there was very little land acquisition under the SAK bill and I apprehend that the referencing was a somewhat simpler task. We are talking about a matter of quantity rather than quality. Apart from that, the referencing method and the parameters for affected properties were exactly the same. If a review such as the review that is being carried out on the Waverley project were carried out on the SAK project or, indeed, on any other project, who knows what it would produce?
You say that 21 plots have come to light so far. How many people now require to be notified?
To be honest, I am not quite sure. The number could be 39; the reason why I am not sure is that we have identified plots of land that abut. One speculates that the houses that go with those plots of land have at least one owner. As yet, we do not know the identity of all the owners or other parties with an interest, such as tenants; we know the identities of only some of them. We have identified a possible figure of 39, but the total could be a few more.
Objectors must be notified and given time before we finish the preliminary stage. Today is our final evidence-taking meeting. Do you think it credible that you are telling the committee at this stage that you are not sure how many people are to be notified of the latest omission?
I certainly do. As the committee has heard, referencing is not a precise science. There is only so much that can be discovered. I have been given details of certain properties, the ownership of which is known in only a few cases. I am not a Scottish property lawyer, but I have discovered that with certain types of land, it is impossible to find out who the owners are on any referencing basis. We have identified an area of ground that might be in common ownership, but it will not be possible to find out who owns it. That is not a referencing task; it would be a task for a property lawyer.
Given what you have just said and given that we are coming to the end of the preliminary stage, by which time people who are entitled to object need to have been given notice, have you considered withdrawing your bill and starting the process again?
Certainly not, for several reasons. First, it is not simply a question of withdrawing a bill and submitting the same papers next time round. Everything that has been done would have to be updated. A sword of Damocles would hang over all the people who are threatened with compulsory purchase now for many months longer—I cannot even speculate on how long that would last.
For the record, do you have confidence in your process and in the evidence that you have given the committee and the Parliament?
Indeed I do—I would not have given the evidence otherwise.
Given the errors that we have heard about and your explanation, why should we have confidence in what has been done?
I am sorry; I do not quite follow what you said.
We have heard about why errors were made and about a review and we have now discovered more errors. In that situation, why should we be confident that the work has been undertaken as thoroughly as possible?
Either the committee accepts the evidence that we give or it does not. We are speaking as people with experience in the private bill and referencing fields—gosh, that sounds pompous, but it is not meant to. I simply mean to say that people in this room have experience in this field in abundance.
The promoter submitted written evidence for our meeting on 28 February that said that to undertake and report on its review of the referencing process would take about four weeks. Now we hear that that may take another five weeks. That suggests that the problems are significantly greater than first thought. How do you respond to that?
I do not think that problems are the cause. Mr Fish is the person to answer that question.
Retrieving the documents from the archives took longer than expected and, after retrieval, the documents needed work to make them suitable for such an in-depth review. It is only once we had gone some way into the exercise that it was possible to estimate more accurately how long the exercise would take to complete.
Mrs Gorlov, when I spoke to you the first time you gave evidence, you told me then that you had confidence in the work that had been done initially by professionals, and you were very clear about not intruding in others' professional fields. Do you feel at this stage that you would revise that view in the light of what has happened?
No, I do not. I might, in the light of our experience of Scottish procedures, suggest certain alterations in the methodology. I would undoubtedly—and will in future—get back to the clerks to discuss with them how better to deal with certain categories of property that are caught by the Scottish rules and not by any other, and how best to deal with certain aspects of Scottish property law that are unique to Scotland and which present particular problems that we do not get in the rest of the United Kingdom. However, apart from that, I have no reason to revise my view of referencers in general or LandAspects in particular.
Were the people who did the original work experienced in Scottish property law?
Some were, but only to the level of working as land referencers. We are not property lawyers, and that is not the requirement. Nevertheless, we obviously have some experience in dealing with such issues from previous projects of this nature.
But, to be absolutely clear, not everybody was as familiar with Scottish property law as some members of the team were.
That is true, although land referencing does not require an in-depth level of familiarity with Scottish property law.
Although it seems from what Mrs Gorlov said that, in this instance, it would have been more useful.
I am not sure that that is the case. Even in England and Wales, I am not sure that land referencers would necessarily have to have an in-depth view of property law there. It is not about being a property lawyer.
I wonder whether I might clarify the problem with Scottish property law. I do not want to make too much of it. The referencing task is not a property law task at all. Referencers have to go to various sources and take from those sources the information that is available in them. The problem is that, in the register of sasines, documents rather than individual particulars are registered. So, as I understand it, there is an index that reveals names and another with addresses, and if one goes to the index it will show that an individual is registered as the owner of property at a particular address. However, it will not show property where there is not an address or where there is not a known owner.
I worked there for five years, and I think that you are wrong.
Well, may I give the example that has given rise to the problem? There is a piece of common ground at the back of some houses whose ownership was not ascertained. It turns out that the owner of at least one of the houses shares ownership of that ground with unknown others, but the only way in which one can find that title to the land is by reading through the title deeds to his house. I am informed that that is a not unusual arrangement. No doubt, Mr McKie from Anderson Strathearn will be able to help the committee further if they want to hear from anyone today.
For five years, I worked at the register of sasines, during which time I was involved in complicated land searches, just as you have described. That was about 20 years ago and systems have changed, but the register of sasines has not changed for several centuries. It is a register of parcels of land. Houses are not mentioned particularly, but there are two indexes: one index of parcels of land and a further index of the names of people.
I expected to discuss that issue with Mr Cochrane. I am not sure what we ought to do. The promoter is obliged to carry out a reference, but landowners are not obliged to divulge title information and the promoter is not obliged to carry out a title search. My information about the ability to locate pieces of unknown open land is not quite as has been suggested; I have no idea how difficult it is to find out about pieces of land. However, the lengthy procedure that has just been described is a title search and a reference is not intended to be a title search. A reference is much more about superficial inquiries of the publicly available and obviously available information. Hence, references are based on the valuation roll and the sort of list that has a name and an address.
Okay. Annex G of the "Guidance on Private Bills" refers to
Undoubtedly, that is a matter of what one decides is reasonable, but—I say this so that the committee should be in no doubt—the referencers went to the register of sasines, the land register of Scotland, the valuation roll and a good many other places as well, as Mr Parry Jones can tell you. There is no question of their having ignored any of the registers—they did not—but in going to the register of sasines, they went as far as referencers can go. They did not make full title searches in relation to the plot of land that I described.
It was you who contacted the committee and said that you had overlooked 130 affected people, which is why consideration of the project was suspended. When you came to us on 28 February, you told us that you had left out somebody in the middle of a block. It was you who did the review, so it is obvious that you were not satisfied with the work that had been carried out, otherwise you would not have carried out the review in the first place. To argue that the committee or the Parliament is asking for a higher standard of proof than applies elsewhere does not stack up, because you seem to be overlooking the fact that it was you who determined to have a review of your processes, which, in turn, has thrown up further problems.
Forgive me, convener, but I think that we are talking about two different things. I was addressing the level to which a referencer should be required to search. The suggestion seemed to be that a referencer ought to undertake full title searches in the register of sasines, with lawyers involved if necessary, and I was simply saying that that level of inquiry goes beyond what has been accepted as reasonable for referencers in the United Kingdom. I am simply saying that, if the Parliament is to require full title searches, promoters need to be told that for the future. For the present, the Waverley Railway (Scotland) Bill's promoter ought not to be expected to have made referencing inquiries above and beyond the standard that has hitherto been accepted as reasonable for the remainder of the United Kingdom.
Various objections were made about certain aspects of the land referencing, which is perfectly normal. Because we wished to understand where the objections were coming from, we identified two omissions. A certain level of interpretation is required in identifying what abuts the limits. In those cases, we decided that we had not erred on the side of caution, as we would have wished, and we therefore decided that the people who were involved—I think that there were 120—ought to receive notice. Of course, we made that known to the committee immediately. As it turned out, some of the landowners who received notice following the re-referencing pointed out to us that in their opinion they did not qualify for a notice. Interpretation is involved and we tried to err on the side of caution at all times. Where we erred on the side of caution erroneously, that is now perceived as an error, but we believe that we have been prudent in our work and have achieved the standard that anybody in the industry would expect.
In response to an earlier question, Alison Gorlov took exception to my description of the level of omissions that we found out about a month ago as altogether unsatisfactory—she did not appear to believe that the situation was unsatisfactory. We had about five months of delay because about 130 people were not notified. After that five-month period, at our meeting on 28 February, we were told that yet another person had not been notified. At that time, the committee expressed its concern that other people might be in the pipeline. Four weeks later, we are now told that 39, or possibly 40, more people have not been notified and there is apparently no way of guaranteeing that more people will not be discovered. If the situation is not altogether unsatisfactory, how would Alison Gorlov describe it?
Well, Mr Brocklebank, I would describe it as unsatisfactory, but what is unsatisfactory is that a number of people who are entitled to notice did not get it, which is not the same as saying that the referencing process was unsatisfactory. Objectively speaking, one would of course like everybody who is entitled to notice to receive it—that is the perfect world to which we all aspire. However, the fact that perfection was not achieved does not mean that the referencing was highly unsatisfactory. The referencing was carried out on a sound basis and, we believe, produced a sound result. Undoubtedly, that sound result contained errors, some of which have come to light—the world being what it is, I should be surprised if there were not more errors. The fact that there were errors and that people did not receive notice is unsatisfactory, but it does not follow that the referencing that gave rise to the errors was unsatisfactory.
With respect, you sound like a surgeon who claims to have carried out a brilliant operation and to have gone through all the technical procedures absolutely correctly, but whose patient still died because he had a weak heart. I find it difficult to accept that, despite the various caveats that you have introduced and the various claims that you have made for your referencing process, you still admit that you do not know whether there are any more omissions and that, by the nature of things, you will probably not be able to identify some objectors out there.
That is what we have done up to and including this lady—I hesitate to mention her name, because she did not like having it mentioned before. We have not served notices on the discoveries that have been made since, because, according to the procedures, before we can do so we have to discuss with the clerks what to say in them. For example, they have to state the objection period. My understanding is that we have been asked to clear with the clerks how we deal with that matter.
You will be aware that what has happened could result in delays to the bill's progress, because the people involved must be notified and given as much notice to object as other objectors have had. We are looking at serious implications for the progress of the bill.
Indeed we are. That is understood. However, that is nature of the procedures. The procedures are all that we have and all we can do is utilise them to the best of our ability. As far as the referencing process is concerned, the people involved undertake reasonable inquiries and operate competently. Those are the only criteria under which any of us can operate. The fact that the outcome might not be 100 per cent satisfactory is, as I have said, no more and no less than a law of nature. It will always happen.
I should point out to Mrs Gorlov and the rest of the panel that, according to the private bill procedure in the Scottish Parliament, we do not require the promoter to reference. It is its decision to conduct a land reference. However, under our procedures, we require the promoter to notify people who are entitled to be notified. There are a number of ways in which that can be done. It need not stand or fall on land referencing. It was the promoter's decision to take that approach and it is for the promoter to indicate whether it considers that the referencing process that was undertaken was the best way of ensuring that due notification was given to those who were entitled to it. Would you like to comment on that point?
I certainly would. The procedures do not require landowners to co-operate; no one has to tell us anything. The only thing that a promoter knows is that it must serve notice on people with a certain entitlement. In order to discover who those people are, the promoter must make such inquiries as it can. The promoter must prepare what the Scottish Parliament's rules call a book of reference, which is the output from taking a reference. The exercise of ascertaining who holds land interests in given areas is called referencing. The rules do not say that we need to reference; they say that we need to prepare a book of reference so that we can serve notice on certain people. For that reason, we are obliged to carry out a reference. Whatever one cares to call the process, the exercise of ascertaining land ownership without having the legal powers to require people to divulge that information is referencing.
You have said repeatedly that there has not been this level of scrutiny in any process in the past. If I did not know better, I would almost think that you were blaming us for doing our job properly. Are you suggesting that there should not be this level of scrutiny? Is there some problem with that?
I am not for one moment suggesting anything of the sort. This level of scrutiny results in the job being done twice. If one does a job twice, one hopes that it will be done better the second time round. However, in no other procedure of which I am aware is it the expectation that a job should have to be done twice. It is expected merely that the job should be done competently the first time round. We are doing the job twice to prove to the Parliament and to ourselves that the job was done competently the first time. The committee has heard that we believe that, in this case, a competent job was done. No one is blaming the committee for being concerned that the review should be carried out. However, the procedures allow for the job to be done once. That is the basis on which infrastructure schemes are promoted throughout the United Kingdom.
You talk about a unique level of scrutiny. Are we carrying out too much scrutiny? Was the normal level of scrutiny that was carried out in the past better? Are we being too meticulous? I am trying to work out what you mean when you say that never in human history has there been this level of scrutiny.
In the normal course of events, a reference is carried out, in the way that has been described to the committee several times by LandAspects. Notices are served on the basis of that reference. In every other type of infrastructure promotion procedure in the United Kingdom, the promotion goes on from there and there is no further reference to the referencing, as it were. The notices are served, the objection period runs and the referencing issue is closed off. In relation to private bills at Westminster and the old Scottish provisional orders, there was a proceeding for closing off the issue of whether all the necessary notices had been served.
That seems to suggest that until now the approach has been to do the reference and close it off. Other things that you have said indicate that, inevitably, many people who should have been notified were not, but that that was just too bad. People said, "That is life," and moved on.
As a matter of fact, yes. To be frank, there is an element of practicality in all this. The object of the exercise is to serve people with notices, give them a chance to object, publicise the proposed legislation so that everybody knows that it exists, have the inquiry, parliamentary committee hearings or whatever and, in that way, advance the procedure.
With the greatest respect, that is not what you are saying. You are not saying that the object of the exercise is to make sure that everyone who should be notified is notified; you are saying that the object of the exercise is to have a reference that you know will miss out a lot of people—and, as you agreed, that is life. The object is to put something in place that will look okay, but which does not do what it is meant to do.
I am not saying that at all. Let me ignore the reference for the moment and consider the whole procedure. I am saying that the object is to have notices served on affected people, to hold an inquiry into the proposed scheme and to take a decision on that inquiry. That is what one wants to achieve from beginning to end. In order to achieve each stage, one has to undertake certain tasks, of which referencing is one. One must undertake those tasks diligently and competently. All that I am saying is that that was done the first time round and other procedures allow one to move on to the next stage. I am not criticising; I am simply observing that the procedure on this occasion requires the job to be done more than once and the remaining parts of the promotion procedures to wait until the referencing job is redone.
To be fair to us, we do not demand that the referencing is done more than once; we just want it done right, which is not quite the same thing. You seem to be saying that one normally does the referencing once and then one moves on, but the rest of your evidence seems to suggest that it is inevitable that quite a lot of people will be missed—you say that what you missed in this exercise is what normally happens. We might not consider it satisfactory to take the approach that one just moves on knowing that the system will miss out a lot of people. That seems to be a bit of a sham. Have I got it wrong? Is that not what you are suggesting?
It is not what I am suggesting. It is all a matter of degree. If the job is done incompetently, it would be quite wrong to move on. If the job is done competently, one should move on—otherwise one will never move on because one will never achieve perfection.
I agree.
The object of the exercise is to get the job done as well as it can be done on the basis of reasonable inquiry—that is what the standing orders and the determination require and it is absolutely right that they should do so.
You keep talking about the reference not being 100 per cent accurate. I do not know about my colleagues, but I would not mind if the reference was not 100 per cent accurate. We all expect a level of error, because we are all human. However, to say that the reference is not 100 per cent suggests that it is near it. It is not. As we have heard, large numbers of people were not notified.
I think that it would. One can do an awful lot of things with numbers. It is important for the committee to be aware why numbers of people do not really equate to numbers of errors.
You say that clear instruction needs to have been given. A clear instruction was given to the promoter that people require and are entitled to be notified. The job at hand was therefore to notify people who are affected by this £155 million project.
First, let me say that if I misrepresented anything that you said, it was entirely unintentional.
Do you accept that it is reasonable for the promoter to go to annex G of the "Guidance on Private Bills", which says clearly that the people who have a right to be notified are
I profess no expertise in what the registers look like in this country, but I am told that the land register covers little yet, and certainly very little in the Borders.
No—it covers everything.
The register of sasines has wide geographical coverage, but it is so assembled as to make searching a specialist and rather difficult task that is not comparable—
The task is specialist and difficult and professionals who require a fee are needed to do it. That is no different from the work of referencers, parliamentary agents or anyone else. I am saying not that the work is not difficult, but that perhaps it should have been done.
The task is legal; it is not the same as referencing what is on the face of a register.
I have not said that it is.
I am sorry. You mentioned the rest of the country. In England and Wales, coverage for land registration in the equivalent of the Scottish land register is now 100 per cent. That register shows names and addresses and allows plots to be searched in a way that I am advised is much simpler. One can simply look on a list where all the information is, without the need to delve into title deeds. That is an aside.
I am not a lawyer and I have no experience of acting in a legal capacity, but I am a representative of the public. Do you agree that in such circumstances, the public would expect as near as possible to 100 per cent accuracy?
Yes, of course.
Do you also accept that the public would be right to expect that those who are doing the work take all reasonable steps to get as near to that 100 per cent as is possible, including having sufficient knowledge of Scottish property law as to allow them to do that job reasonably?
I would certainly expect the job to be done reasonably, but I would have little idea of what "reasonable" meant. I have no doubt at all that I would expect the work to be 100 per cent. If my property were involved, I would be remarkably unsympathetic to the argument that 100 per cent is unachievable.
Given that the first fairly cursory and relatively superficial review threw up, as I think you accepted, 130-odd errors, would you still say that what was done was done as thoroughly as it might have been, given the constraints and usual practice? I paraphrase slightly but that seems to be what you are saying. Are you satisfied that the work was adequate?
Are you asking for my view as a lay person?
No, I am asking for your professional view.
As I said earlier this morning, I am satisfied. I will not disguise that when the matter came to light I was angry. One does not like to find that there have been errors in anything with which one is involved, but the more that I have discussed the matter with LandAspects—I emphasise that I have not dealt with the referencing at first hand—the more I am convinced that the job that was done was competent, errors and all. Errors are terribly regrettable, but I think that, overall, a competent job was done.
Would you accept that, as lay people, the public and I might take a different view?
I would not be at all surprised if the public took a different view. It sounds awfully pompous to say, "I know and they don't", so I will not say that, but the truth of the matter is that there is a level to which one can go. I know that anything short of 100 per cent will not be acceptable to the lay public—I understand that. All that I am saying is that in whatever gets flung at the public in the real world, 100 per cent is not achievable and it is never achieved.
I was going to make a personal comment, but I will not do so.
As committee members have asked all their questions, I thank you very much for coming to give evidence.
I will, if I may.
Thank you very much, Mr Gannon. We have a few questions for you.
They are the source of the information that was used to carry out the review. At the outset, I had a lengthy telephone conversation with David Fish to gain an understanding of what was behind the written method statement. I then visited the LandAspects offices to see what was being done and to ensure that I thoroughly understood their method.
Your report states:
No. That was a more general comment. It is difficult to prove a negative. Referencing is a manual, clerical procedure that relies entirely on human beings putting the right piece of paper in the right place, extracting information from documents and recording it in the way that is required for the production of a book of reference, plans and notices. In any human procedure, documents can be lost. While the quality management methods that were applied to the processes would normally pick up that type of problem, we cannot guarantee that that type of problem will be picked up. However, the incidence of errors should be low.
What concerns do you have, following your review of the LandAspects method statement?
I have discussed the method statement in detail with David Fish and considered what is being done. It will be possible to prove what I said it will be possible to prove—that is the administrative aspect of the job. The only additional concern about the method is about the expectation of what it can produce. We are talking about assessing or improving the quality of a human process by carrying out human inspection. One expects that human inspection will have the same potential human error built into it as the original process has, because it is always possible that the human being who inspects the work will miss something that the person who did the work missed. That is an absolute fact.
As a fairly ordinary member of the public, I am struggling to come to terms with what seems to be a dismissal of our expectation of as near as possible to 100 per cent accuracy from professional people who are employed to do a professional job. We are concerned that, despite the fact that the limits of deviation in the referencing process are significant, that appears to be okay. Do you share my feeling?
I expect that your concerns would be shared by anyone. The referencing process is intended to identify all parties who have a notifiable interest and to ensure that they receive the required notification. It is a reality that that is not always achieved. The reasons for that are human error and organisational error.
We have just heard that, with a little more effort, some significant errors were found, but I do not hear you saying that the industry—for want of a better word—is looking to apply the lessons that have been learned. Do you have any concerns about what you have heard this morning?
I always have concerns when I hear that there are errors in any work that has been done by our firm or by other firms in the industry. The fact that an accuracy rate of 100 per cent is not achievable does not mean to say that a rate of approaching 100 per cent cannot be achieved. In its best work, TerraQuest has probably almost hit the target of 100 per cent accuracy; in its worst work, we have fallen short of that, for a mixture of reasons.
I will ask you to apply that analysis to the current situation. Do you think that, in the present case, the limits of deviation are within tolerable bounds?
I cannot comment on that until the results of the review have been completed. A number of figures have been bandied about today. Without examining the root cause of all the errors and checking that they were indeed errors rather than the result of the application at this stage of a more rigorous interpretation of the situation than has been applied in the past, it would be difficult to comment.
I think that you would agree that, from where we sit, the present interpretation is not unreasonable.
I would not agree that it is not unreasonable.
You also said that when mistakes are found, you try to learn from them and consider taking corrective action. Have you seen any evidence that that philosophy has been applied in this case?
The method statement that has been put together is a thorough method statement. The people who are applying themselves to executing that method appear to be from senior levels within LandAspects. The people I met while I was carrying out my review appeared to be of the right quality to do the job. When a problem arises, it is always the case that the more senior management of the company becomes involved because something has gone wrong and it takes more senior involvement to sort that out. My observation so far is that the problems that have arisen have led to this comprehensive examination of the referencing outputs, which should mean that, by the time the process is complete, all the parties that could be identified as being notifiable will have been notified and will have had notice served on them.
I take it that the answer to my question is no.
That was a very long response.
Yes, and I asked if you had seen any evidence that behaviour had changed and lessons had been learned.
And the answer was yes.
Was it? Can you justify that other than by saying that senior people have done a lot of running about? I would expect that, but what else has happened?
I have seen the process that is being carried out to check that the work has been done in accordance with the method, that the results of that work appear in the schedule and that checks are undertaken to ensure that the people who are in the schedule will receive notice.
Do you get the feeling that that is the sort of rigorous approach that will be taken in future?
The review will affect not only the approach of LandAspects to future work, but ours.
Thank you for coming, Mr Gannon.
Thank you for inviting us here today. The committee has now heard the deliberations of the many public and professional bodies that are supporting the promoter on the general principles of the bill. Some of those bodies have used a level of supposition in their arguments that we do not believe is quantifiable or justified. The implementation of the legislation will affect many groups of people. We submit that the impact and loss for some groups have been given scant cognisance. We dispute the fairness and objectivity of the processes used to demonstrate the compliance of the bill and its accompanying documents. The failures on which we are here to give evidence can be split into the three areas of consultation, technical process and public service standards.
Thank you, Dr Wyllie. As I said earlier, we will have a break for lunch, which will last for 45 minutes. When we resume, we will put questions to all members of the panel.
Meeting suspended.
On resuming—
I welcome again our panel of witnesses, Ron Street, Berend Meijer, Dr David Wyllie, Robin Bull and George Baillie. Dr Wyllie gave a short opening statement before lunch, and we will now ask questions of him.
No, I do not think that it has improved at all. Some of the panel members can speak of recently having had difficulties in arranging meetings with the promoter and with the time that it takes the promoter to respond if questions are raised at those meetings or if action points are set. We seem to have been chasing up the promoter for a good part of three years to try to get responses. Before the bill was introduced, we held some preliminary meetings with the promoter, but we have always been the ones who have done the chasing. It would be a relief to get information proactively from the promoter. It has been incredibly difficult.
Is that still the situation?
We have now seen a copy of a drawing from Environmental Resources Management Ltd that shows mitigation levels for specific areas. In the specific area that I have been looking at, there is a scheme of approximately 30 houses. The drawing shows that scheme in a completely different area from where it should be, yet that drawing is dated October 2004. That is a relatively recent example that shows that the area has not been looked at adequately.
Do you think that it was possible for the promoter to consult more effectively, so that more people came on board in favour of the project? Do you think that the reluctance to consult or engage has harmed the project? Had you been consulted at an early stage and been kept involved in the plans, would you perhaps have been less critical of the project?
I do not want to go into details. We held meetings with the promoter in June 2002, before the bill was introduced. The promoter was very slow in addressing the action points from those meetings. When the bill and its supporting documents, including the environmental statement, were introduced to the Parliament, no mention was made of our particular property, although the promoter had been in that property. The issues were not addressed in the environmental statement. I do not want to go into details, but we tried to consult the promoter and its action following that was, from our perspective, non-existent.
I would like to amplify that statement. I have been trying to engage the promoter since March 1998, when I tried to engage Scottish Borders Council in dialogue on the structure plan. Throughout 1998, 1999, 2000 and 2001, I submitted a series of letters to Scottish Borders Council and to the then Scottish Office transport steering committee on the impact of the bill, with very limited response from Scottish Borders Council.
Can you talk briefly about your general concerns about the plans that have been submitted to you by the promoter?
Do you mean specific details of the plan or the plan for the railway from Tweedbank to Edinburgh? What do you mean by the plans that were submitted to us? I am not sure that we have necessarily received a plan. We have taken off the website indications of the route and where it would affect our property. The promoter did bring maps, on an extremely small scale, to indicate the route. Even recently, the promoter was using scale maps of 1:1250 to take measurements from. That is the level of plan that we have had.
That is specifically the point that I am asking about. I am asking about the plans themselves. Are you telling us that you had to go to the website to get information on the plans and that they were very small scale? Is that all that you got from the promoter?
All the plans that we have seen have been at the local library. We have had to go there first of all to read through the environmental statement to understand how the whole thing has been cross-referenced, and then to take out the plans for our area. That has been the only way in which we have been able to see what is actually happening in our area. All the information that we have looked at to date has been gained mainly off the internet and off the website.
Dr Wyllie talked about the small scale of the plans themselves. Has the scale of the plans thrown up specific problems in identifying areas?
With a small-scale map, there is obviously a degree of error associated with taking measurements. All of us are in properties that abut the railway at short distances of several metres. An error of a millimetre on a map, which is about the width of a pencil line, represents 1.25m. That may not seem a lot, but it is a lot when we are talking about the distances that are involved with respect to our properties.
I have a small-scale map that exemplifies some of the issues that we have. Perhaps the committee members would like to have a look at it later on.
I would like to clarify a point about consultation. You say that you have had meetings with the promoter. Have those meetings always been at your request and have they been held on what might be termed an ad hoc basis, or have any of you had on-going consultation? For example, have people in a specific area had regular meetings with the promoters where there have been agendas, minutes and so on, or have meetings just been ad hoc?
I can give you some background on our situation. We started communicating with the project group in 2002, and it took us about a year to get a first meeting arranged. That was a meeting that gave us a very broad outline of the project, which I think should have been presented at a large public meeting, rather than at small meetings in people's houses. After that, we exchanged letters and tried to get more detailed information, particularly about noise in our case. It took us until January this year to get a second meeting with the noise consultant, at which we went through a number of our concerns. However, a number of questions remain unanswered from the meeting. Although there were meetings, they were definitely not held on a regular timescale.
If I may, I will add something. In February 2004, I had a meeting with the consultation manager. It took five e-mails to get a response, after which a meeting date was set up. The meeting, which was held at my house in Heriot, lasted two and a half hours. I am still waiting for the actions from that meeting to be completed.
Thank you for that. I will move on to another of the issues that Berend Meijer highlighted. Will you clarify your concerns about how the environmental statement was produced in respect of noise impacts? I am particularly interested in your assertion that more stringent noise assessment criteria such as the World Health Organisation guidelines for community noise should have been used.
All the noise limits in the environmental statement were taken from planning advice note 56, which is based on an English document, which in turn is based the older WHO guidelines. The problem is that PAN 56 applies only in situations where a new building is being erected close to an existing noise source. Our situation is completely different: a new noise source is to be located adjacent to existing buildings. All the limits that are being taken from PAN 56 should be lowered; the question that is open for discussion is by how much.
In your contribution, you alluded to the fact that the average noise limit is the limit that is usually used in these circumstances. Edinburgh airport is in my constituency and arguments like the one that you put forward are also put forward by my constituents. They say that, although the issue for them is the peak noise at the time that it is happening, the average noise limit tends to be taken as the standard. Have you taken up that point with the promoter? If so, what was the promoter's response?
Yes. Obviously, the promoter received a copy of our comments on its documents—I guess that that was done through the committee's procedures. I also wrote a detailed letter to the promoter, setting out why I disagreed with the noise limits as they are set out in the environmental statement. After a long time, that has led to a meeting with the noise consultant from ERM, to whom you will speak later this afternoon. At that meeting, we again expressed what we thought about the validity of the noise limits. In all cases, the consultants basically say, "This is how we have always done it so why should we do it differently this time?" That is the same sort of philosophy that was expressed by the people on the first panel this morning.
How would you respond to the promoter's suggestion that the environmental statement uses the noise impact threshold criteria in PAN 56, which interprets the WHO guidelines in a planning context? Those guidelines do not aim to set limits on environmental noise.
It is true that the WHO guidelines give values rather than limits. However, it is normal to derive limits from guideline values—you need to base them on something. You can see that in the fact that even PAN 56 bases itself on an earlier WHO document.
Mr Street, you have made a number of comments about the adequacy of the environmental statement in the context of, for example, new jobs and socio-economic effects, reducing traffic, visual impacts and noise levels. Can you elaborate on those insofar as they relate to the adequacy of the environmental statement, rather than merely to a difference of opinion between you and the promoter?
In relation to the visual impacts—and I am, obviously, referring to my locality rather than elsewhere—although the promoter has indicated that a bridge will be built across the A7, it has not defined the nature of the bridge or the visual impact that it will have. It has indicated that landscaping will take place and what it will consist of, but has not been specific. None of that gives an adequacy to the promoter's costings. The design concept that the promoter is using is based on design and build. By its nature—and in fairness to the contractors—that will mean that the work will be done at the lowest possible cost to the contractor. That means that the outcome will not be acceptable for Newtongrange, which is a conservation area. Any project that is undertaken must be in keeping with the area and we cannot see how the project will be to that standard—it has not been costed to that standard.
How does that mean that the environmental statement is inadequate?
Because the environmental statement sets targets that are not necessarily achievable.
I have a direct question for Dr Wyllie. In your objection, you said that there was no mention of your property or that of your neighbour in the environmental statement, despite the fact that those properties
It is not adequate. Our properties were not included in the statement despite the fact that in June 2002 we met members of the Waverley railway partnership. The promoter was perfectly aware of our properties, but saw no reason specifically to include them in the environmental statement. I received notification of the typographical errors that are in two places in the supplementary memoranda that were supplied in August 2004—after the date by which objectors had to respond to the promoter's response to our original objections, which was 29 July 2004.
Do you think that there is scope to solve some of the problems that you identified before the detailed design stage?
Sorry, will you repeat the question?
You say that what you have heard so far would not go far enough to mitigate the problems, but the promoter says that they will be able to provide more adequate detail at the detailed design stage. Do you think that your problems can be addressed at the detailed design stage?
No, I do not. Alison Gorlov talked about the sword of Damocles, which is still hanging over us. The fact that the promoter might provide detailed evidence of its ability to mitigate noise does not address the problem that the mitigation measures that are currently proposed do not seem reasonable or adequate. The proposals do not address the issues that we raised. Perhaps another witness wants to comment on that.
If no one wants to come in on that, we will move on to the next question.
My question is for Mr Bull. You expressed concern about the environmental statement's apparent failure consistently to deal with your property and other properties, such as the former station house at Fountainhall, Falahill Cottages and other properties, which would be further from the track. The promoter responded to your concerns in a letter of 23 August. Do you have comments on the response?
I think that the promoter's response was that it would not be practicable to detail every property, so a representative sample was used. I suggest that the promoter picked easier samples to furnish the environmental statement and supplementary memoranda and that that was a cop-out—pardon the phrase—and a non-answer.
In what sense do you mean "easier samples"?
The promoter picked receptors that are 50m to 60m away from the proposed line and commented at length on the impact that the railway would have on properties at those points. There is a single line in the report that pertains to the impact on my property, which is 6m from the line—the work would consume the garden, in fact. I consider that the disparate nature of the detail given to impacted receptors does not meet due process.
You think that the process has been weighted or fiddled.
It has been weighted to the receptors that are easier to deal with.
In our case, we pointed out to the promoter the fact that there were no receptors anywhere near the properties involved and that we could only extrapolate from receptors that were in a similar area and at a similar distance from the proposed track. Eventually, we received another sound investigation report, dated 27 February this year. That took into account three points near the properties to evaluate background noise. The first one was sited approximately 100m away from the proposed track, close to the A7. The second point was sited in the water treatment works and the third was sited in the building site itself. I fail to see how that can be representative of providing background noise.
As I understand it, noise impact has been assessed and the promoter has reported on that. A noise barrier has been specified and, in particular, the promoter has referred to the draft code of construction practice that deals with noise and dust levels. Does none of that help to meet your concerns?
It concerns me that when properties are 4.5m to 5m away from the proposed railway line the promoter suggests using generic sound barriers that are up to 1.5m high. I fail to see how, where there is an elevated track that could be between ground and first floor levels, a 1.5m high sound barrier would be adequate to compensate for noise levels of 82dB to 83dB.
What would be adequate in your view, apart from not having a railway?
I would shift the line a bit further over or I would consider using mounding. Those are the only means that would affect the visual and sound impact—one has to build a physical barrier that is high enough to deflect the sound. It would be similar to what is used on motorways where the sound is deflected up the way. We already have a 1.5m fence and I fail to see how an elevated railway track between ground and first floor levels some 4.5m to 5m away from the building will compensate for noise levels of 82dB to 83dB. That is what the promoter is offering to provide.
None of you gentlemen wants the railway for personal reasons. I am not saying that I would be any different, so I am not making any criticism of that. You raise obvious concerns about noise, pollution and dust, but against a background of not wanting the railway, which is, as I said, understandable. Can you imagine that anything could be done about those environmental noise levels that would help the situation or could you never be content with the line? If that sounds pejorative, I do not mean it to be—I just want to know whether there could be any area of agreement.
It is not that we could never be content with the line. When one looks at the bigger picture, one of the principal factors of our objection to having a 48km long railway line between Gorebridge and Galashiels is that it would not serve the communities in between those places because they would have no access to it.
Although we have all lodged similar objections and raised similar issues, we find ourselves in slightly different positions. For example, part of our land may be subject to compulsory purchase, or the railway may be immediately adjacent to our property. To the question of whether anything can be done to mitigate the noise level, the answer for our particular objection is nothing. There is no room to put in a barrier that would mitigate the noise level.
Your main criticisms of the environmental statement appear to focus on the failure to assess the impact of the railway on your property, on assumptions in noise assessments, and on a failure to take into account decibels, loudness effects and ambient noise levels. Most of those issues appear to have been addressed in the various answers to our questions, but would you like to add anything before we move on?
I would like to raise an issue that we have not dealt with at all. It is not to do with noise, but with safety. A railway will be going through residential areas. In this locality, which I know reasonably well, a large number of new-build properties are naturally family homes and young children will live there. I understand that the Executive has issued, only today, guidance on safe play near railway sites. I find it extremely worrying that a railway can be put through a residential area where there are children at play. The distances in question would be less than that between my seat and yours.
Thank you, gentlemen, for your evidence and for your courtesy before lunch in assisting the committee with its timings.
Meeting suspended.
On resuming—
I welcome Iain Rennick, who is the area manager for the Forth and Borders of Scottish Natural Heritage; Steve Hunt, who is the area officer for the Borders of Scottish Natural Heritage; David Campbell, who is the Edinburgh team leader of the Scottish Environment Protection Agency; and Angela Foss of the Galashiels team of the Scottish Environment Protection Agency.
Thank you convener, and good afternoon. I will keep my opening remarks very brief because we have provided the committee with a summary of our current position. I hope that that has been helpful.
Thank you very much.
We have responded very positively to the environmental statement. You will see from our response that a lot of the responses that we made were comments rather than questions or statements that required actions to be taken. There has been quite a lot of dialogue with the promoter, particularly in relation to the construction code of practice. It is probably fair to say that we have been satisfied that the points that we have raised have been addressed adequately by the promoter.
Is SEPA content that flood risk aspects should be addressed by the promoter at a later stage?
Yes. To some extent, SEPA has powers that it can invoke in relation to the Water Environment and Water Services (Scotland) Act 2003 or the Control of Pollution Act 1974. Certain permits are likely to be required as part of the operation. We have certain powers to ensure that that is the case and there would certainly be dialogue to ensure that there is compliance.
I will address one or two questions to the SNH representatives. The committee will deal shortly with appropriate assessment, but from what you have said your view appears to be that the environmental statement is inadequate generally and that it fails properly to assess the likely significant effects on the environment of the development that is authorised by the bill. Can you go into some specifics for us?
Certainly. I will ask Mr Hunt to go into the detail, as he helped to put together our response.
I agree. I stress that significant progress has been made during the past three weeks. The further environmental information that has been provided to the committee makes significant commitments and represents the achievement of an addition to the baseline information that we regarded as inadequate in the original ES.
It would be useful if you would write to the committee to state your specific concerns, so that we are clear about what you are saying. Perhaps you would indicate whether you think that it would have been reasonable for the information to have been provided to you by this stage. Is that possible?
We are happy to write to the committee. We have answered the question several times before: in our letter to the promoter in April last year, in our letter to the committee on the environmental statement in July last year, and in several subsequent meetings and discussions with the promoter. However, we are happy to repeat that information for the committee's benefit, if you like.
Are you saying that, despite requests by you for the promoter to provide the information, it has failed thus far to do so?
We first raised our concerns in April last year. From our perspective, progress during 2004 was frustratingly slow but in the past couple of months there has been a definite sea change; there has been a commitment on the part of the promoter to recognise that the concerns are genuine and need to be addressed, and that it is willing to come forward with the information that we recommend it should provide.
Has SNH been provided with details of generic mitigation, for example on bats and badgers? If so, has that information been considered and to what extent does it address your concerns?
The important point is that that information is generic. We seek more specific information on the impact on protected species or habitats at specific points.
I do not have much to add to that. A confidential survey of badgers was undertaken as part of the ecological impact assessment of the environmental statement and a number of locations were identified as potential bat routes. As part of the further environmental information check, comprehensive surveys are proposed by the promoter for both badgers and bats.
Mr Rennick said that it is difficult to ascertain to what extent the waters of the Tweed might be impacted upon until detailed engineering surveys have been done. I ask the witnesses from SEPA, as well as those from SNH, whether there is a danger that those detailed surveys will not be done until considerably later in the proposal. That might result in a significant increase in costs at a stage when it would be too late for the information to be taken into account by the committee, or by SEPA and SNH, in commenting on the adequacy of the environmental statement.
Yes. That is why we have been pressing for additional information to be provided, either for the environmental statement or for the appropriate assessment. We are concerned that the detail of the design that we think is required to assess the impact on protected habitats and species will come too late in the process to allow any meaningful mitigation to be put in place. The horse will have bolted after the stable door has been shut; it will be too late to make the improvements that might be necessary.
Does SEPA concur with that view?
Things are probably slightly different for SEPA. I think that there is the normal level of detail that we would expect in submissions in environmental statements for planning. We realise that there may be debate about whether the whole project will go ahead when such information is provided and that there is the difficulty of the detail that can be provided economically at that stage. However, it would not be unusual for such a level of detail to be provided for general large-scale planning schemes.
I want to pick up on what SEPA has said. At a couple of points in your submission, you highlight your concerns about construction works that
I will make some general comments and then invite Angela Foss to give details about Gala water.
I will play devil's advocate. If such a compromise were not reached and SEPA and SNH were still unhappy about elements of the crossings on, for example, Gala water, are you saying—this is based on what you said earlier—that you think you have the powers to be able to do something about that? Would the power to be able to do something have been lost?
We presume that we will have the powers to be able to do something under the Water Environment and Water Services (Scotland) Act 2003, which is due to be implemented by the Parliament later this year. Whether those powers are available to us depends on the dates on which the scheme in question would go ahead and how they would relate to the implementation dates for the Water Environment and Water Services (Scotland) Act 2003. I think that the presumption is that the 2003 act will probably be implemented before then.
Would I be correct in saying that that also goes for your concerns about contaminated land, such as that at Millerhill marshalling yards and Monktonhall colliery?
The powers are already in place for dealing with that.
We have touched on appropriate assessment under the habitats directive, which comes into play because we must look into that matter at the consideration stage and take regard of your views. In particular, I want to deal with SNH's view that it has received insufficient environmental information from the promoter to be able to form an informed view on whether the project will adversely affect the integrity of the protected area. The River Tweed special area of conservation, for example, has been mentioned in passing.
What do we need and when do we need it? Our role is advisory and, ultimately, it is for the committee to request the information in a timescale that suits it. I would, therefore, turn the point back on you and say that it is up to the committee to make it clear to the promoter—
I would fire back to you the suggestion that we would do that after taking regard of your guidance.
That is a fair point.
The promoter's memoranda on appropriate assessments describe how the promoter thinks that that process should be managed. It suggests a two-stage process, with the Parliament assessing the outline proposals and the planning authority carrying out a further appropriate assessment in respect of the detailed proposals. The promoter indicates that that is what would happen in the planning context. Is that your experience and what is your response to that approach?
To an extent, that is our experience. We are not entirely comfortable with it in this context. We think that the Parliament, through this committee, has a duty to apply the requirements of the habitats regulations and that, therefore, you require the detail at this stage to allow you to pass regulation 48(5), in particular, which places the onus on you to not allow the project to proceed unless you are content that it will not adversely affect the integrity of the site.
The promoter has suggested that a minute of agreement be entered into between it, the Scottish Environment Protection Agency and Scottish Natural Heritage to deliver agreed mitigation works. However, it seems that such an agreement could be entered into only once the likely significant effects had been properly identified and provided that they could, in fact, be mitigated so as not to adversely affect the site. The problem for me is that that does not get round the fact that an appropriate assessment will need to be properly carried out. Would you care to comment on that?
You have perhaps given the answer that we would have given. The concern that you outline is the concern that we have had about entering into such an agreement at this stage. We think that it would be premature to do so while the appropriate assessment has not been undertaken and while there is still a possibility of there being an adverse effect on the European conservation site. We have therefore refused to enter into such an agreement at this stage.
In that case, is that simply something that you will keep on the back burner? Is the idea of an agreement closed, or is it still a possibility?
We would be prepared to go back to the idea at a point at which Parliament had undertaken an appropriate assessment and it had been shown that there would be no adverse effect on the European conservation site. SNH is well used to working alongside road developers and so on in an informal context; we always continue to consider further mitigation measures as more detailed plans are drawn up and some inevitable marginal changes occur. However, we have reservations about whether a formal, legal agreement would be an appropriate way in which to go forward. We would be prepared to consider that again once the appropriate assessment had been done.
But not now. Does SEPA have any comments on that?
We have not yet signed up to the agreement, but we are obviously not averse to the principle of involvement. As David Campbell has said, we have certain legal powers that we would still be able to utilise, even without the proposed agreement. At this stage, there are certain legal issues that we want to resolve, on which we are seeking advice. We are certainly not averse to signing up to the agreement and we would want to be involved in the process of ensuring that everything is implemented as we would wish.
There is a distinction between SEPA and SNH, in that SNH does not have regulatory powers that would allow us to enforce conditions after the bill has been passed.
My final question is a catch-all. Does either organisation have any other concerns that it would like to leave with us? Is there anything else that you want to tell us?
No. Broadly, you have asked the questions that we expected you to ask, so we are comfortable that we have covered them.
I concur with that.
All right.
I am sorry that our questions have been so predictable. I thank the witnesses for coming to answer our questions.
Meeting suspended.
On resuming—
We continue with our evidence on the environmental statement. Lily Linge is head of heritage planning at Historic Scotland. My colleague Ted Brocklebank has a question for her.
I begin by asking about the one scheduled ancient monument on the Shawfair to Gorebridge section, which I think is referred to as SAM 6202. Have suitable mitigation measures been discussed and agreed by the promoter and Historic Scotland?
Just last week, I had a telephone discussion with Environmental Resources Management Ltd, the promoter's environmental consultants. As part of that discussion, it was confirmed to me that the scheduled monument will no longer be affected. All the impacts on the monument have been moved, so it will now be saved as we wish it to be; it will be unaffected by the development.
That brings that line of questioning to a stop. Are there are any other scheduled ancient monuments that we should talk about?
No. There is a residual issue, which I raised in my submission on the promoter's response. The bill identifies works on the land that contains the scheduled monument. We want to ensure that the scheduled monument's not being affected is reflected properly in the bill in respect of the land that it identifies for works, so that when whoever will eventually build the railway comes along, they are in no doubt that the scheduled monument's land is not available for carrying out works.
That might be useful. Could anything still be done on the plan to ensure that no other scheduled ancient monuments will be included or affected?
We are happy that no other scheduled monuments will be affected.
You gave evidence to say that you met the promoter just last week. You are the second witness in succession to refer to having had a meeting with the promoter just last week. Are you disappointed or annoyed that the promoter has not met you before now to sort out problems? What spurred the promoter to have a meeting just last week?
We had a telephone discussion, not a meeting. We met the promoter in August 2004, when the issue of the scheduled monument first came to the fore. The scheduled monument was an issue because of a fundamental error in the promoter's gathering of environmental data—it failed to appreciate the extent of the scheduled monument. An exchange of letters towards the end of last year resolved some issues, but the problems were not entirely solved until the end of last week. I agree that it is slightly disappointing that that resolution took so long. However, the issues included removal of an access track and rerouting of a cycle track, so I accept that it might have taken some time to find alternative routes.
It is well over a year since the bill was introduced. Are you disappointed that it has taken all that time to resolve your concerns only partially?
I am perhaps more disappointed that the scheduled monument was not correctly identified in the first place. Good planning should start from the principle of avoidance. Our view is always that care should be taken at the outset to avoid scheduled monuments because of their national status. We were surprised to find that the scheduled monument had, simply through error, not been avoided.
Was the failure to identify the ancient monument a land referencing issue? Who was responsible for that omission?
I do not think that it was a land referencing issue. Something went astray between our providing the information and the writing of the environmental statement. Somehow, our information does not seem to have been used.
Will you update us on discussions about the listed footbridge and road bridge at the former Eskbank and Dalkeith station?
We understand that that has been saved. An agreement about remedial works to it has been made, but it will essentially be left in situ. The additional environmental information that was provided in February still says that the bridge is not saved, but I have been told that that is an error.
Will the cost of that be part of the project's general cost? There was talk of approaches being made for grants.
I know nothing about that. I am not aware that any approach has been made to Historic Scotland, but the matter was raised at a meeting. As is the case for anyone else, it is open to the promoter to explore with Historic Scotland the possibility of a grant.
Are discussions under way to involve Historic Scotland in the prior approvals process for station platforms and buildings—particularly those that might affect a listed building's setting?
I am not aware that there has been movement on that since our meeting in August, at which it was agreed that Historic Scotland wished to be part of the process and would be consulted. We have had no further discussions on such issues.
Did you expect to have had further discussions by now? Do you expect to be involved in continuing discussions?
I am not sure whether we expect that—that depends on how much of the detail has been developed. We fully expect to be consulted in the usual way when sufficient detail is available. I accept that some of the issues that we raise concern matters of detail.
I thank you for giving evidence.
Meeting suspended.
On resuming—
We shall now deal with the promoter's memorandum on consultation. Our witnesses are Bruce Rutherford, the head of asset management with the Scottish Borders Council; Andrew Rosher, a principal consultant with Turner and Townsend; Douglas Muir, a specialist services manager with Midlothian Council's strategic services; and David Southern, a director with Harrison Cowley. Bruce Rutherford wishes to make a short opening statement.
I will keep this as short as I can. The three words that have guided the communications team since the launch of the official consultation exercise have been "open", "honest" and "accessible". The first stage was the launch of a communications campaign in January 2002, which was designed to let people know the nature of the outline proposals. We launched a widespread campaign for the general public, with particular focus on reaching the people who live and work in the region of the rail corridor. The launch offered an immediate communications forum; a dedicated telephone hotline and website were established to encourage debate among all interested parties.
How do you answer objectors' allegations that, following requests for meetings, several months or—in some cases—several years elapsed before meetings took place? Once the meetings took place, people then had to wait for significant periods before action points were taken forward, if they were taken forward at all. How do you square that with the statement that you have just read out to us?
We have to admit that there were instances when people told us that they would like a quick meeting, and times when it was not possible to collate for them accurate information. In those instances, we endeavoured to get back to people as quickly as we could.
In your pre-bill introduction consultation, did you seek the views of local community groups, residents associations and so on about the form and timing of the consultation? How did you actively encourage the public to submit information?
The committee has to look back beyond the bill consultation process. The project has been going on for years; it has not been manufactured only in the past couple of years. The local authorities started to work on the project as far back as the early structure plan and local plan stage. The project also formed part of our local transport strategies. All the different forums in local communities were involved in the consultation at that early stage.
I can add to that by saying that 54 group meetings were held. They were principally community council meetings that were open to the public and to which we were invited by the community councils. The invitations came to us as a direct result of the launch on 14 January 2002 of the communication campaign, which Mr Rutherford mentioned. Meetings took place from that date onwards and a number of others took place after the launch of the public consultation exercise on 1 July 2002.
One of the other private bill infrastructure projects, the Edinburgh tramline 1 project, will be built in my constituency. In fact, two of the tram projects will affect my constituency. At the request of the promoter of the Edinburgh tramline 1 project—Transport Initiatives Edinburgh Ltd—I agreed to chair a community liaison group. A local councillor attends the meetings, which are being held on an on-going basis, as do representatives of all the streets that will be affected by the tramline. People can ask questions, to which they will now usually get an answer within a specified time. They also have access to experts who have compiled the various accompanying documents and they have a chance to make an input.
If I may, I will start to answer the question and will then hand over to my colleague Andrew Rosher. One of the earlier panels alluded to the fact that a series of public meetings should have been held on an on-going basis.
Before he does so, I would like clarification. I presume that you are talking about the difference between public meetings that are open to any member of the public and retaining control of the messages that go out by addressing specific groups. Chinese whispers being what they are, I completely understand that approach. However, what have you done about getting round the table with people on an on-going basis to hear their concerns and to have a dialogue about solutions?
Our approach was principally in two stages, the first of which was the launch of the hotline on 14 January 2002. As I said, we were trying to get people to visualise the project, and the hotline gave people an immediate mechanism through which to engage with the promoter. On the same day, we launched the project website, which was a two-way mechanism that allowed people to find information on the project and to e-mail requests for further information or potential meetings.
Before we move on, I want to ask about the maps and plans. Previous witnesses have said that the maps that they received were on such a small scale as to be almost meaningless. If that was the best material that they could access, how does that square with your comment that the maps were very detailed?
I feel that that situation must be specific only to the witnesses who gave evidence today. I attended a number of the roadshows, so I know that two sets of plans were provided. Moreover, the information leaflet contained five inserts that showed the proposed station locations, how the park-and-ride facilities would be laid out, how the interface would act with the road and so on.
I think that the witnesses in question, who were very articulate, said that the size of the map in the environmental statement made it almost impossible for them to work out who would be most affected and what measures could be put in place. If that was the best material they could access, how confident are you that everyone else was able to access the kind of very detailed information that you suggest was available?
We started from the position that the documents that were required to be submitted to Parliament were the land referencing plans, all of which were available in libraries. Such documents generally show the land that has to be acquired or the limit of deviation of the land beyond that. The plans gave people an initial indication of whether they were going to be affected. We followed that up with letters to inform the people in all the different categories that plans were available, and that meetings were arranged so that they could speak to us if they wanted to.
Dr Wyllie approached me and asked how far his house would be from the line. I explained that because we did not have the final design, we could not fix exactly the position of the railway line. However, I was able to give him an almost precise distance from his house to the railway line, which I think was about 5.6m although I would have to go back and check that. As Bruce Rutherford said, the drawings are the parliamentary plans and they are to quite a large scale. I have 33 different plans to cover Midlothian, which makes a large book of plans.
How are the letters to landowners that are referred to in paragraph 44 delivered? What evidence does the promoter have that all landowners who would be affected received a copy of the letter?
There were various types of letter, but I will pass the question to our land manager, Andrew Rosher.
I will just run through some dates and the numbers of letters that were sent out to landowners. The first letter was sent to the 56 parties that we believed would be most affected by the proposals. The letter alerted them to the proposals and gave the background to the project. That letter was sent out before the road shows. The second set of letters went to the same parties and alerted them to the possibility of compulsory purchase, which could affect their properties. That was also sent to 56 people. One set of letters was sent by first class Royal Mail post, and the second set was sent by recorded delivery.
I come back to the consultation that you took part in before the introduction of the bill. What influence did people have on the route and choices for stations? Can you give examples of your changing the plans as a result of consultation?
We investigated about 40 different areas through discussions with individuals or groups of people and we have changed our ideas as we have proceeded with the bill. You will find those areas detailed in the memorandum that we have just handed to the committee. There is also a long list of individuals, groups of people and companies; there is quite a cross section of different interested parties. Mr Rosher will give some details.
The lists are of the changes made to the scheme at the request of non-objectors and objectors. Non-objectors are those whom we consulted prior to objections being submitted. In their case we were not seeking to remove an objection but were extremely concerned that we needed to make changes to the scheme. One of the consultees was Asda in Galashiels. The changes ranged from a major realignment of the proposed rail route right down to reducing the potential temporary land take in Galashiels to ensure that someone could continue to access their property.
Let us conjure the hypothetical possibility that the project should go ahead. How do you intend to consult the public and, more specifically, the affected persons? For example, will there be dialogue with people who are looking for compensation or dialogue to do with measures to deal with environmental mitigation? In other words, what future discussions are planned if the project proceeds?
The job is just beginning, so consultation is on-going. The scheme is in its infancy. It is our intention to keep affected parties that are close to the line fully involved in how we take the project forward.
In taking the project forward, we are following the key guidance that Mr Rutherford mentioned earlier, which is the code of practice on the dissemination of information during major infrastructure projects and the guidance issued under the Transport and Works Act 1992. The guidance makes it clear that consultation must continue up to and during the operational phase.
Will you also consult the public generally? Obviously, you will need to consult those who are entitled to compensation—you cannot avoid that because, basically, they will come looking for their money. However, do you have plans to keep being proactive in consulting the public?
Yes. A crucial part of the on-going consultation exercises will be that we engage with the general public, as we have done from day one. It is important that we engage on an on-going basis with the public who took part in the original consultation phase. We should do that as a courtesy to all those with whom we have had communication. As Mr Rutherford mentioned, there have been over 40 changes to the original plan to date. Even if people are not directly affected by those small changes, it is common courtesy to maintain communication to ensure that people are absolutely up to date on the project.
The objectors from whom we have heard were chosen relatively randomly—we could have heard from any number of people—but what they all had in common was criticism of the extent of dialogue. If, as Mr Rutherford suggested, they are a relatively small proportion of the people who are generally affected, what steps are you taking to deal with those individuals?
What the sceptics said is a bit of a worry for us and we discussed that at lunch time. We feel that we have undertaken a good, proactive campaign of consultation, but we are hearing one or two comments such as those we have heard this afternoon.
That is not what my question was about. My question was about what you will do about folk—not groups or those who are generally consulted—who say continually that dialogue is not good enough.
We must reply a bit more quickly to people. We have often told people that we cannot answer them quickly because an informed position needs to be taken. Whether we have not explained ourselves well enough to one or two individuals may take part of the blame. We felt that we had been fair with people and we have said that to them on occasion. That is not always what they want to hear, but we thought that we had picked that up well enough to have more of a receptive ear from them.
I will not go into too many details about individuals. The process that we tend to follow if we have had a meeting and received a request for information is to ask the relevant adviser in the project team to respond.
Before we leave this issue and I return you to Gordon Jackson, can I confirm that that increased dialogue will also take place with SNH and SEPA, representatives of which referred to their regret at delays in response?
We have tried to be as open as we can be with SNH. In the early days, we took almost polarised positions on how best to take the issue to Parliament. We had extensive discussions with the clerks to the committee. However, we are now working closely with SNH. I felt uplifted today when I heard that SNH now appreciates the extra work that we have put in to get to a position that everyone is comfortable with. I am heartened by that.
Good. I hope that the same will apply to the community, because I got the impression—perhaps wrongly—that Mr Rosher was proposing a formal, formulaic response to requests for public consultation. I would have preferred to feel that you were anxious to enter into almost a friendly dialogue with people, that you would respect their views, and that you would not just wait for an appropriate individual to come back with their views, but instead would be a good deal less formal than that.
I reassure you that we will pick up on that. I appreciate from the earlier panel that there are one or two issues that we need to work on and resolve as quickly as we can. We have worked with hundreds of people and we have come to a good arrangement with them and they have come to understand better what we are trying to achieve. There is a balance to be struck.
Notwithstanding what you said in reply to Christine May, in light of what various witnesses have said today, taken in conjunction with the Minister for Transport's announcement last week, do you accept as fair comment the view that there is a fairly wide perception that the councils are determined to go ahead with the project regardless of the views of objectors?
Absolutely not. Given the length of the route, the number of objectors is disproportionate to the number of people who have openly supported the scheme. The Campaign for Borders Rail is a strong advocate of the scheme and it delivered a petition with 17,000 signatures to Parliament in 2002. We have approximately 130 objectors, out of which—[Interruption.]
I ask audience members not to respond. This is not a public meeting. Please show the witnesses courtesy.
We know that quite a lot of the 130 objectors have taken a position to gain leverage in negotiations with us, which is not unusual. Also, a lot of statutory objectors are negotiating with us. We hope that their objections will be withdrawn shortly. The strong message from Lothian and Borders people is one of support. There is also support from many businesses in the two areas.
Nonetheless, the perception persists. Do you have any plans to alter that perception, particularly given the recent press statement by the leader of Scottish Borders Council, who said that the railway is now a reality and that the bill will go through by November?
There was natural enthusiasm in some of the pronouncements that followed the Minister for Transport's announcement last Monday. Given the process that we have to go through, we do not accept that the railway is a reality. There is a lot of hard work to be done and we have a lot of convincing to do to convince people that we have a good case. We strongly and firmly believe that the case is very good in transport terms, economic terms and social inclusion terms. It is up to us to convince you as a committee to take the appropriate action that will allow us to move forward to the next stage.
I thank the witnesses for attending.
I had not actually planned to do so, convener.
That is fine—we will just move to questions. I am not sure whether it is a fan I hear or aeroplanes going overhead, but please speak a little closer to your microphone.
Good afternoon, Mrs Gorlov. In your memorandum of September 2004, you provide information on how a book of reference would be compiled. We covered some of those issues this morning, but will you confirm that what has been detailed in that memorandum is how you compiled the book of reference for this bill?
As I did not work on the compilation, Mr Parry Jones probably ought to tell you.
Sorry, was the question on how exactly the book of reference was compiled?
Yes. Is the information in your memorandum of September 2004 what was done?
Yes.
Some objectors have expressed concern about the adequacy of the plans enclosed with the notification letters. As I think you heard, that caused great difficulty in identifying the parcels of land involved. We accept that the promoter appears to have deposited the maps, plans and sections in compliance with the Presiding Officer's determination, but what consideration was given—when you were issuing extracts of those maps—to making them more user friendly and fit for purpose?
May I ask for some clarification? I may have misunderstood what Dr Wyllie said, but I thought that he might have been referring to consultation letters and plans, rather than to formal notices and plans. I may be wrong and if so it matters not because I have answers to both points. However, I ought to point out that if any of the disquiet relates to letters regarding consultations, those of course are not the plans that were sent out by the referencers as part of the formal notice-serving exercise. Now Mr Parry Jones can answer the main question.
Are you suggesting that there is a query about the maps, plans and sections?
The concerns were over the adequacy of the maps that were sent out. If I were to put myself in the guise of a member of the public, I would say that there was no differentiation between letters regarding consultation with a map attached, and maps of reference.
I cannot comment on the maps that accompanied the consultation.
It is your view that the maps that were sent out with the letters of notification were adequate and that, in some circumstances, you took steps to make them more than adequate?
Absolutely.
How many corrections has the promoter had to make to the book of reference since the bill was introduced?
Off the top of my head, I cannot give you a figure. Earlier, we spoke about the problems of describing the changes as corrections or errors. The book of reference is a document that is meant to identify land that is being acquired—or affected—by the project and interests in it. There is a certain amount of latitude, because we have to achieve a document that is clear and easy for people to use. There is no absolute requirement to parcel things down to the nth degree. The golden rule is that we should produce whatever provides a clear picture for users—in other words, the members of the public who read the information. If we achieve clarity, we are probably getting it right.
When the bill was introduced, there was a book of reference. I am trying to establish the extent of the changes that have been made to that book of reference since the bill was introduced. If you cannot answer that question at the moment, I would be quite happy to accept an answer in writing, but I would like to get at least a ball-park figure.
Many of the changes that we spoke about earlier this morning would not affect the book of reference. The book of reference contains details only of properties that are within the limits of deviation or the limits of land that is to be acquired or used. Many of the issues that we have discussed relate to properties that are outside those limits. There is no document for recording matters that relate to those properties. There will of course be a few errors in the body of the book of reference, but if I said how many there were, I would be plucking a figure out of the air. There might be 10 or a dozen such errors.
Perhaps you could confirm that in writing.
Absolutely.
What reassurance can the promoter give that the documents are adequate and that the discrepancies that objectors have identified do not represent a significant failure on its part to depict accurately the fullest extent of the impact of the project on people who have any interests in the land?
Perhaps I could answer that. The book of reference reflects the referencer's understanding of the ownership of the land and the interests in it on the date on which it was prepared. The book of reference is prepared from the same database as the notices. That means that if errors are identified that relate to land that is within the limits of deviation or the limits of land that is to be acquired or used, they will be picked up as errors in the database—the land referencer's records—and will occur as errors in the book of reference. At the end of the current review exercise, we will be able to say what errors there were. There are three errors that I know about that we have identified as a result of that exercise.
Thank you for your evidence.
Meeting suspended.
On resuming—
Our final topic of the day is the environmental statement. We have witnesses from Environmental Resources Management Ltd—Stephen Purnell, senior associate partner; Stephen Mitchell, principal consultant; Sam Oxley, senior consultant; and Andrew Coates, principal consultant. We also have Roger Doubal, technical director with Scott Wilson Scotland, and Alison Gorlov. I understand that Stephen Purnell wishes to make a short opening statement.
Thank you for allowing me to summarise the progress that has been made on environmental issues.
Yes, please.
Principally, the issues, which were raised by local residents and SNH, related to the adequacy of the environmental statement. Those issues were the perception that the environmental statement might somehow be biased or weighted towards dealing with easy issues; timescales for the appropriate assessment work; a perceived error over the location of the scheduled ancient monument at Elginhaugh; and our apparent reluctance to meet consultees until recently.
I will add a further issue. I asked about the potential cost implications of detailed engineering works and examinations and the steps that have been taken to ensure that, as far as possible, the works are minimised.
Yes.
Will you respond to the concerns that SNH expressed that the environmental statement fails properly to assess the likely significant effect of the project that the bill will authorise and that it is inadequate for the purposes of an appropriate assessment?
I will start, but my colleagues may wish to add something.
Yes, the witnesses said that they would put comments in writing, which we are looking forward to reading. When will any further information that you have be provided in the form of an addendum to the environmental statement, for peer review?
An addendum to the environmental statement under the cover of further environmental information was submitted to the Parliament about two or three weeks ago. The document, which was issued simultaneously to SNH and other statutory consultees, deals with several issues, including the progress of the concept landscape design and the incorporation of consultees' comments on the code of construction practice.
I want to pick up on a point that was mentioned by SEPA about flood risk assessment. Will you look at that—and at changed drainage—and say how that fits into the environmental impact assessment process? Does it fit in with what you have just described?
We have discussed flood risk. Perhaps Mr Doubal will respond to that.
A flood risk assessment has been carried out for the whole route, particularly along the Gala water. It might be worth setting the scene. In 1969, the line was an operational railway and the Victorians who designed it seem to have done a pretty good job—they designed bridges with abutments that are some distance away from the water. Our first task was to look at the flood risk. That was done and, by and large, it was found that even if we considered the greater degree of flood risk that global warming might bring—one might look at the risk of a 200-year flood—generally there was not a risk of flooding. There were a couple of areas where water got close to the rails, and the study had to consider those areas, but the results of our work show that there was not much of a flood risk.
Did you have discussions with SEPA on that assessment?
Yes, we did—not as much about the fruits of the work, but certainly about the methodology. We met SEPA, we were given guidance on what to do and how to approach the situation and we have followed those guidelines.
What progress is being made in agreeing undertakings with SNH and SEPA on mitigation and habitat creation? Will those commit the promoter to carry out, maintain and monitor the mitigation measures?
We have been discussing mitigation measures with SNH and SEPA for some time. The measures are of course outlined in the environmental statement and we have been talking about mitigation that would need to be developed hand in hand with the appropriate assessment work. An early request from SNH was that we prepare mitigation notes for different species—my colleague Andy Coates prepared the notes and I think that SNH has had them for some months.
There are all sorts of ways of ensuring that the agreement that we feel confident will be reached is made legally enforceable in the courts. Our approach appears not to have appealed much to SNH or SEPA, but that does not matter, because we can sort out other ways of proceeding.
In general, the promoter is committed to finding ways of binding itself to the commitments that it gives, not only to statutory and non-statutory bodies but to individuals and groups of residents who have concerns. As the process moves forward, the promoter is giving commitments to take certain action, the detail of which will be made clear only when the committee has done its job. Can you reassure us that your commitments will be taken forward?
Yes.
I will go back a little and ask about the engineering works in the river. SEPA was concerned about the use of what it called "harder engineering" for matters such as bank protection and bridge construction and thought that the promoter might have proposed
We certainly will. We are optimistic that we will take forward schemes that use as much soft engineering as possible and limit the hard engineering that will be required.
We asked Historic Scotland about the ancient monument—it is not a monument in the normal sense of the word, but it is technically a monument—and we were told that a phone call had sorted out the matter. For clarification, will it be necessary to amend the bill to deal with the matter?
I will ask Alison Gorlov to comment on whether the bill will have to be amended. I will make two points about the scheduled ancient monument to which Ms Linge referred, which is the Elginhaugh Roman camp.
And what is the outcome?
The outcome, I believe, is that the scheme engineers have assured us that the two land parcels in which works were to be required that might have affected the scheduled ancient monument will no longer be required. We will be able to effect the scheme without having to use those two parcels.
We will not need to amend the bill for the Elginhaugh Roman camp. However, changes will need to be made to the affected listed structures—although Mr Jackson's question did not refer to those—that are set out in the table in schedule 9 to the bill.
That concludes our evidence hearing for today. I thank the witnesses, both those who have just given evidence and those who gave evidence throughout the day. As we have no more meetings scheduled for Newtongrange, I take the opportunity to thank the staff of the Scottish Mining Museum. In particular, I thank Maureen Hardiker for her assistance in making arrangements to allow us to meet here today and two weeks ago.
Meeting closed at 15:37.