Waverley Railway (Scotland) Bill Committee, 28 Feb 2005

Meeting date: Monday, February 28, 2005

Official Report 402KB pdf

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Bill Notification Arrangements

I formally open the second meeting in 2005 of the Waverley Railway (Scotland) Bill Committee. This is the 10th meeting of the committee.

Of course, this is not the first time that a committee of the Parliament has been in Galashiels; the Public Petitions Committee has been here. However, it is a pleasure for us to be here and I thank the officials of Scottish Borders Council for their assistance in enabling us to hold this meeting in the Langlee complex.

All members of the committee have already undertaken a site visit along the entire route of the proposed railway and I think that I speak on behalf of all of us when I say how helpful we found that visit to our understanding of the issues surrounding the project and of the locations of the proposed route and stations, as well as some of the properties that are close to the line.

Today, the committee will concentrate on two aspects of the bill. First, we will hear evidence from the promoter on its notification arrangements. Because that will impact on our later considerations, I do not want to anticipate the committee's decision on those arrangements.

This meeting is being held in public, but it is not a public meeting. This is the formal work of the Parliament, so I would appreciate the co-operation of members of the public in ensuring the proper conduct of business today. I ask everyone to ensure that all mobile phones and pagers are switched off. Committee members have already done that.

As the meeting is quorate and no apologies have been received, we move to the first item on the agenda and will start with evidence from our first witnesses.

The first paper for consideration is paper 21, on a further error by the promoter in its notification arrangements. It transpires that an affected person's notice should have been served on a property at Westfield Drive in Eskbank when the bill was introduced in September 2003. Before I invite the committee to consider its approach to this issue and its possible implications for the bill and our timetable, perhaps we could hear from the witnesses for the promoter. We have Alison Gorlov, the parliamentary agent with John Kennedy & Co, which acts for the promoter; Ashley Parry Jones, a referencing manager with LandAspects; and David Fish, a quality manager at LandAspects. Do any of the panel members have any brief opening remarks before I invite questions from the committee?

First, I want to say on behalf of the promoter how sorry we all are that the committee is being troubled with a further referencing issue. Please accept our apologies to the committee and to Ms Taylor of Westfield Drive.

The convener asked about the impact of the omission, which is obviously of great concern. Not least, we are conscious of the impact on the more than 2,500 landowners who have already been notified and we are very much aware that, whatever the implications of the lack of one notice for the timetable for the bill, there is a potential impact on those landowners. That certainly made Scottish Borders Council pause to consider how best to respond to what happened. The obvious course of action was to serve a notice on Ms Taylor, which has been done, as we confirmed to Mr Cochrane. The notice was served as soon as we cleared with the clerks what was needed in relation to the dates for the petition period.

The other issue, which is quite separate and—with the greatest respect to Ms Taylor—might be the major issue for the committee, is the impact of the discovery of the error on the validity of last year's audit and the robustness of the assurances that the committee was given last year about the accuracy of the referencing process. The assurances were given in the utmost good faith after a check was made, but it is now self-evident that the check was deficient in at least one respect. Therefore, the only action that the promoter could take was to order a complete review—not an audit but a complete examination—of every aspect of the referencing process so far. LandAspects, to the company's credit, instantly volunteered to undertake that review. The committee has a copy of the letter that I received from Mr Dunlop, the director of LandAspects, and the methodology statement, which sets out in detail how, technically, the land referencing team will review what happened. The work commenced on 17 February and is being undertaken by a land referencing team from LandAspects—not the team that did the original referencing, but one that comes from Northern Ireland and has had no involvement with the Waverley process hitherto.

To give the committee and, indeed, the promoter further comfort that the right course of action was being properly undertaken, we retained John Gannon, who is a director of another referencing company, to vet the methodology statement, which would be adjusted if Mr Gannon had any comment to make. This morning the committee received a copy of Mr Gannon's interim report. The report is highly technical and I found it a little difficult to follow, but that is not a criticism and no doubt Mr Fish will be able to take the committee through any parts of the report that members want to consider. The committee should note that the report says that

"the scope of the examination as set out appears to be adequate",

which should reassure the committee.

Before Mr Fish speaks to the report and to the exercise that he and his team are undertaking, I want to put the referencing into the wider context of referencing as it is generally undertaken, because the exercise is completely novel for people who are not involved in the world of infrastructure authorisation. First, there are only two dedicated referencing firms in the United Kingdom. Several firms undertake referencing, but only two do nothing but that and have been doing so for many years: LandAspects; and Terraquest Solutions plc, which are now both involved in the project. The two firms have worked together on major projects and I think that the committee knows that they acted jointly in relation to the Channel Tunnel Rail Link Bill and are involved in the referencing job for the London cross-rail—

I think that the committee is in a position to ask you questions, which would be far more helpful.

I understand that, but may I mention one other matter? We thought that it would be helpful to the committee if we drew comparisons. I have figures on the number of notices that went astray, were returned or were served late or incorrectly in relation to the channel tunnel rail link, which was a very large project—larger than the Waverley railway project—compared with the figures for Waverley project. I will not read out the figures if that does not suit the committee, but I can pass them to you. The figures show a huge number of matters that emerged and had to be rectified in relation to the 14-day period for the channel tunnel rail link. In a year and a half, there were far fewer such matters in relation to the Waverley project.

Thank you. It would be helpful if you passed the information to the clerk, because we will return to notification arrangements at our meeting on 21 March. When we have had an opportunity to consider the figures, I am sure that we will have questions for you about them.

All members of the committee will probably take the opportunity to express their concern at what happened in relation to the referencing and notification, given the assurances that we were given last year, which Alison Gorlov mentioned. Why, when it came to light on 8 February that the notice might not have been served, did it take until 17 February for you to notify the clerk to the committee of the failure to notify?

That was the length of time that it took to ascertain the true position. The sequence of events was that Mr Muir of Midlothian Council telephoned me and I made inquiries of the land referencers, who investigated their records and came back to me to tell me what had happened. We did not serve the notice on the day that we found out; we served it, I think, two days later, after I had spoken to Mr Cochrane because, as has happened in the past when notices have been served, I needed to clear with him the date of service and the final date for presenting an objection, which is the date that goes in the notice and which I needed to agree with him.

What is the current position regarding the investigations into whether there are any other interests in the property?

Mr Fish or Mr Parry Jones will be able to tell you that.

Having done the necessary searches, we are not aware of any other interests being held in that property.

Ms Gorlov, you have given us assurances that LandAspects is about to carry out an even more rigorous review than the one that it was supposed to carry out previously. Why did it not carry out such a comprehensive review last September following the promoter's failure to notify 130 properties in Gorebridge and Galashiels? Why has it taken five months to initiate the more rigorous review?

I cannot say what decided the scope of the previous review—no doubt Mr Parry Jones can tell the committee that. I can say only that, last year, LandAspects was asked to confirm the accuracy of what it had done, went away, undertook whatever checks it did and assured us that the referencing was robust. When it came to light this year that that was not so, we expressed displeasure and insisted on a wider review, the scope of which we wanted to see and the methodology statement for which we wanted to vet. Those are the documents that the committee has before it now. The promoter did not see the scope of the previous audit; we were simply told that it had been carried out. Perhaps Mr Parry Jones could tell the committee precisely what was done last year.

Certainly. When the referencing was being undertaken, various checks were made during the process. They were conducted right at the end of the referencing process, as the notices were served in 2003. We were then dealing with notices that were returned. As Ms Gorlov said, some came back and we dealt with them, but, happily, there were few.

In addition, some errors came to light. Certain comments were made by various recipients and landowners, and we also looked at those. As we have discussed, it is regrettable that there were some errors. Not all of those were errors as such, but merely different interpretations. On occasion, we had over-notified and found that the error, such as it was, was because we had notified unnecessarily.

As a result of that feedback from recipients, when the objections were published, we looked at our referencing scope and felt that, in two areas—Gorebridge and Galashiels—it had not been sufficiently wide because although we had referenced the properties, we had deliberately excluded them from the notice production. We believed that we had failed to err on the side of caution and should have caught many of those properties. Indeed, it turned out that once those notices had been served, we had again over-served and some people received notices that they might not normally be entitled to. That was a concern to us and to the promoter.

We then undertook checks along the whole route to make sure that we had not missed anything. It appears now, for reasons that are impossible to explain, that that particular property has been missed, hence our requirement to provide the necessary assurance to the committee, the promoter, the public at large and ourselves that the process has been carried out properly. That is what we are undertaking now.

Given that fairly sorry catalogue that preceded the cross-checking methods that you have now instituted, are you satisfied then they will ensure that nothing further will pop up and that we will not find ourselves in the same situation further down the road?

Land referencing is part science and part art. It is not safe to say that there can ever be a 100 per cent guarantee that the same situation will not arise again; we can only do our very best. We rely heavily on the co-operation of landowners and on the accuracy of other documents that are available to us. Those documents are not always accurate. We check them rigorously and we ask for feedback from landowners who are in a position to know their land ownerships better than most others, and we call upon that as a resource.

Why will it take four weeks for the examination of the land referencing process to be carried out? That question is to Mr Fish.

We review rigorously every piece of data collected throughout the referencing process and cross-check it with the land reference documents, with the book of references and then with the postal list that lists all the notices that were served. The process involves reviewing every piece of the audit trail—every piece of information that we have gathered from a great number of interests.

I refer the committee to some of the published documents that it received—the copies of the notices, the books of reference and the plans and sections. Each notice is unique and comprises several pieces of information. For instance, each property is numbered and described and various people who may have an interest in the property are mentioned. Somebody can have two interests in the same property, for instance as an occupier and as an owner. I cannot be sure about this, but if one considers how the complex set of data breaks down, we have about 20,000 pieces of information that are somehow linked together. As a result, a thorough review will take some time.

What will the promoter's view be if, following the examination, further failures to notify come to light?

That is, in essence, a legal issue. Every person who is entitled to a notice is entitled to object within a 60-day period. The Procedures Committee has considered how the objection period operates and whether it should be closed before the conclusion of the preliminary stage. The issues may be resolved through a different system. Stop me if I am telling the committee what it already knows, but the committee can admit an objection any time up to the closure of the preliminary stage and every objector is entitled to object within a 60-day objection period. If one were to posit the worst possible scenario for all concerned, it would be that the review could not be completed until 21 March and that, on that day, a further failure to serve a notice came to light, the inevitable result of which would be delay.

The programme for the review is that in the

"Two weeks starting 21st February 2005"

LandAspects will

"review documents including interim report of findings".

Will the witnesses confirm that the review has started?

It started on 17 February.

A number of what we shall call notification discrepancies have arisen since the bill was introduced. Of LandAspects, Ms Gorlov's letter to me on the issue stated:

"They appreciate that a major issue arising from this omission is to cast doubt on the assurances the Promoter gave last year concerning the adequacy of the referencing process and the audit that had been carried out."

Why should the committee have confidence in the promoter's referencing and notification procedures, as required by our rules?

That is difficult to answer in ways that do not sound rather awkward, which is why I was anxious that the committee should understand the referencing process and be aware of the accuracy that it is capable of achieving. The Channel Tunnel Rail Link Bill involved the service of 6,953 notices, 782 of which were returned undelivered in a 14-day period, of which 200 were attributable to incorrect or incomplete addresses. Those were the two largest figures, but there were others. As I said, I will certainly produce a paper with the figures, but the Waverley notices numbered 4,500 and, undoubtedly, there has been further service of notices. My mental arithmetic tells me that a few hundred out of 4,500 is a much smaller percentage than more than a thousand out of 6,900 is. I do not pretend for one moment that one can simply bandy about statistics and percentages, but, awkward and unsatisfactory though it is, the Waverley situation is somewhat better than is frequently achieved through referencing.

The referencers have to do the best that they can, as Mr Parry Jones has said. The committee is undoubtedly entitled to expect a standard, and that is the standard that can best be reasonably achieved in the context of what it is that referencers can do. We freely admit that that is less than 100 per cent. In the case of the Channel Tunnel Rail Link Bill—when the quality of the referencing was complemented; I was there when that was done—the percentage was very much less than the percentage achieved with the Waverley Railway (Scotland) Bill. I say that not by way of an excuse, but to paint the background against which the referencing is done. Referencers can achieve only as much as they can achieve.

As the promoter, we are satisfied that LandAspects has done its work reasonably and competently. Unfortunately, the process has thrown up errors and omissions, some of which were the fault of LandAspects and some of which were not. However, they are errors of omission, despite best efforts all round.

Given the limitations, as you have described, of the current land referencing arrangements, and your earlier comment that LandAspects did not see the brief on which the previous check was based, I assume that those shortcomings of land referencing were known then. Why was that not asked for, given that your professional integrity is being called into question here?

I am sorry; I do not follow the question.

When the previous check was made of whether everybody had been notified by the promoter, you said that you were not involved in its terms of reference and you did not see the basis on which that check was performed. You accepted the information that you were given. Why, even at that stage, did you not ask to be involved?

Because we were dealing with professional referencers who have done the work for years and with whom we have dealt for years—that is, I do not think that Scottish Borders Council has been dealing with them for years, but my firm has. As competent professionals, they undertook a review. They told us that they had undertaken a thorough review and we accepted that. We were entitled to accept that, as were my clients, on the same basis that I would accept a fellow professional telling me that he had undertaken a thorough check of his field of endeavour. That should have been the end of the matter, but it has turned out not to be. When a professional reasonably and competently tells me that he has done something, and it turns out that he has not, at that point I want to intrude into his field, even though it is off my own professional patch.

Does anybody have any further questions?

I do not have questions, but I have comments.

Okay. I thank all three witnesses for giving evidence. The committee will decide how to progress from here, but thank you for the moment.

Would Ted Brocklebank like to comment?

Yes. This is an altogether unsatisfactory state of affairs, given that this committee's work has been delayed for getting on for five months as a result of the initial failure to notify 130 people and this further failure—as far as we are aware at this stage—to notify one property owner. I accept the argument that it affects simply one person, but as a committee we have a responsibility to regard one person as every bit as important as 130 people. It could be argued that this one particular individual deserves every bit as much consideration and every bit as much time to decide whether they want to object as did the other 130.

Having listened to the witnesses' evidence, my inclination is not to treat that one person differently from the other 130. However, I appreciate and accept—as do all members of the committee—that the matter has taken a huge amount of time to get even as far as this stage. We will see what others on the committee think, but I would be willing to contemplate carrying on and allowing this one individual to make any plea or objection during the course of our further deliberations. However, if any more pop out of the woodwork in the meantime, I will want to review the whole situation.

I totally agree with Ted Brocklebank on this matter. Any delay is unfortunate; however, delaying such a project is not only against the public interest but against the interests of the public purse. It has cost the committee a lot of extra effort to deal with this particular delay's consequences and I believe that it will also impact on the public purse. Ms Taylor is also unfortunate in the circumstances in which she finds herself, but from what we can gather she is dealing with the situation remarkably well.

I think that it would be in the public interest for us to go ahead with the process, because I am minded to accept Ms Gorlov's point about fairness to the people who have already been affected by it and are already living with a notice. After all, we should be trying to eliminate as much of the delay as possible for those people.

However, as Ted Brocklebank has pointed out, the committee felt that when the previous 130 people came to light it had to make a strong statement that promoters should not risk inconveniencing members of the public by coming to the parliamentary committee process without having done their homework. What would we do if we suddenly found that another 130 people had not been served with a notice? Obviously, we would have to look at the matter again. However, given that one individual is affected, given her views on the situation and given that we need to be fair to all the other people involved and that there is overwhelming public interest in pursuing the matter quickly, I suggest that we should go ahead.

For the avoidance of doubt, I should say now that my view concurs with those expressed by my two colleagues. The fact that one individual is affected does not justify suspending the whole process again. However, I will await the outcome of the review that is being carried out. Should a significant number of other properties be identified, the committee will need to take a view on the promoter's competence to carry out this particular task.

I also believe that there has been an over-reliance on and too much sympathy towards professional boundaries. Instead of relying on the professional competence of others, people should have asked more stringent questions, asked for information and checked things out.

I concur with my colleagues. I am angry that, having suspended consideration of this project—whose importance is apparent from the number of people who have turned up to hear the evidence today—we have been placed in such a position again. As I understand it, Ms Taylor received notification in the usual form on 18 February. That notification advised her that she had 60 days in which to lodge an objection. As that period will expire on 18 April and as the committee's preliminary stage consideration of the bill is expected to last until mid-May, Ms Taylor has time to lodge an objection before the end of the stage. Because of that and because, as other colleagues have pointed out, it would not be fair on other people if we did not take evidence on the project, I am minded to agree that we should allow Ms Taylor's 60-day objection period to run parallel with our consideration of the evidence. As I have said, she will have time to lodge objections before the preliminary stage is finished and we will, of course, consider any that she might lodge.

I share the disquiet of committee members about notification errors. If there are any further errors, the committee might have to make a report to Parliament on the adequacy—or lack of it—of the accompanying documents. We are in a serious position. I hope that Ms Gorlov's confidence in the process is borne out, because it would be very serious if any further notification errors came to light.

I suggest that we take a short break of five or 10 minutes before we start taking evidence.

Meeting suspended.

On resuming—