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report by landaspects on referencing review INTRODUCTION 1. This purpose of this report is to provide the Waverley Railway (Scotland) Bill Committee (“the Committee”) with LandAspects’ report on the findings and outcome of the comprehensive review of land referencing in relation to the Bill. SCOPE & PURPOSE OF REVIEW 2. As a result of additional information, LandAspects previously undertook a check of interests served in localised areas and agreed action accordingly. That exercise was by definition limited in scope. 3. The review methodology was designed to provide additional assurances and confidence in respect of the robustness of the land referencing exercise (“the reference”). The examination looked at every aspect of the reference, as undertaken. It did not rely on information gathered during the routine checks during the reference, nor did it rely on information gathered as a result of checks previously undertaken, prior to and most particularly since the Bill’s introduction. 4. The scope of the review involved an examination of every aspect of the Waverley Railway Project land referencing and notification process, as undertaken to date, to ensure that those, at the time of the Bill’s introduction, with notifiable interests in land within limits and those abutting the widest limit of the scheme, were notified. 5. This methodology has been adapted in light of comments received from the Committee and from John Gannon (Operations Director, Terraquest Solutions plc), the independent consultant undertaking the review of the methodology adopted for the review. 6. The team which carried out the review comprised predominantly referencers from LandAspects' Northern Ireland and Birmingham offices. They are part of the same company (within Mouchel Parkman) as the Waverley team, but are separate from LandAspects’ Scottish office and have had no previous connection with the Waverley reference. As a result, they had no preconceptions about the project. They had the necessary referencing expertise to carry out the review. The review team was under the direct supervision of David Fish, LandAspects' Quality Manager, reporting directly to Albert Dunlop, LandAspects’ Managing Director. PROPOSED METHODOLOGY As previously reported to the Committee, the methodology adopted was as follows: 7. Base information reviewed:
8. Break down of review: 1st Step: 2nd Step: 3rd Step: 9. Cross Checking: Fresh set of Land Ownership Plans:
10. Queries:
11. Deliverables: Land Ownership Plans with Parliamentary Plan boundaries and LODs and LLAU overlaid - marked up to show check against BoR and postal list. 12. Should omissions in the notice run be found: Seek advice / agreement from Parliamentary Agents and the Client for any further notification process. This will be done immediately if any omissions are found. 13. Programme: Start 17th February 2005. 14. Resources: Dedicated team of referencers to review the process and the results. Drawn from experienced referencers from separate LandAspects office and supervised by LandAspects Quality Manager. Neither the team nor the Quality Manager has had any previous contact with the Waverley project. ACTUAL METHODOLOGY 15. The method by which the land ownership information was filed enabled a detailed cross check of each available source of information to check that reasonable enquiry had been undertaken. The second stage involved a checking off exercise on hardcopy plans and by reference to postal list records, to check that notices had been served on all interested parties reasonably believed to have enjoyed an interest in land either abutting or within limits, at the time of Bill’s introduction. In addition, in some instances, where further interested parties came to light who have since acquired an interest in such land, notice was served on them in line with a prudential approach. In this respect, the review went above and beyond its remit. 16. The referencing files were reviewed and examined to determine whether reasonable enquiry was undertaken, as defined and agreed with the Promoter. Where further enquiry was required, LandAspects undertook additional referencing work, as appropriate, including further searches of the Registers to double check details. In some cases, the Promoter served further notices, either because they were not served previously and should have been, or where it was decided that it would be prudent to serve notice just in case. This process is summarised in the section below dealing with the results of the review. 17. At each stage of the review, the findings were summarised and communicated to Alison Gorlov, of John Kennedy & Co, Parliamentary Agents for the Bill, to agree further action required. The review was prioritised to concentrate on the areas which were believed to be most at risk of an interest being omitted from service of notice, informed by comments regarding notification since Bill introduction. This approach was explained previously at Committee hearings. LandAspects has now reviewed complete coverage of land that abuts the widest limits and all land within limits. 18. The comprehensive review was an enormous exercise which effectively represented a complete re-reference, except for visiting all relevant properties and repeating interviews with all apparently interested parties (visits were made to some properties where ambiguities were identified and had to be resolved). It took considerably longer than anticipated to retrieve the documents from archives in a manner required for an in-depth review. This resulted in a delay to starting the actual review and cross-check exercise. Resources were maintained at a maximum level to finalise the examination in the shortest time, whilst ensuring technical integrity. 19. Until the data was collated and the exercise started it was very difficult to predict how long it would take. After initial collation it became evident that, due to the vast quantities of data, this would take longer than originally estimated and resources from other LandAspects were added, requiring significant management resource to co-ordinate a team ranging from 5 to 14 people on any one day. This involved a significant logistical exercise to ensure that tight control was retained at all times, to ensure that the process was followed in full and that a systematic review of all relevant information was undertaken by referencers, followed by interpretation of the results and agreed action by the team leaders. All of this exercise was completed one week earlier than agreed at the last hearing, as it was understood that to do otherwise could impact further on the critical path for the Preliminary Stage hearing process. 20. In order to meet the timescale, modifications to the methodology outlined earlier in this memorandum were agreed with the Parliamentary Agents and with the independent expert, John Gannon. 21. In the original methodology of 17 February 2005, it was proposed that the deliverables would include the following documents:
22. Due to the challenging timescale for completion of the review, it was agreed that, although these exercises would be completed, the production of new documents showing this information would add little and would represent a significant additional resource implication. Therefore, it was agreed that the deliverable would be a summary, issued in batches as any issues arose, of any instances of error that required some kind of action. This action was subsequently discussed, agreed and executed. RESULTS - BREAKDOWN OF OUTPUTS General 23. The review did not identify a trend relating to any one process or member of the project team responsible for the original reference. However, it is important to note that the reference was undertaken within a very challenging timescale, including a large number of changes and late additions to the limits which contributed to omissions identified. 24. The level of instances calling for further action to be taken identified by the review is not, in the opinion of LandApsects, unreasonable for a project of this size, type and programme. This detailed review has effectively constituted a re-reference, albeit with the exception of the initial data collection exercise. We suggest that, if a similar exercise were undertaken for any reference, the results, in terms of interested parties and the notices served, would be different to the original outcome when the reference was conducted first time round. 25. The results below are summarised according to various categories, as it is important to split those relating to properties that abut the widest extent of the LODs / LLAUs (limits of deviation and the limits of the land to be acquired or used) and those relating to properties that are within limits and appear in the Book of Reference. By far the majority of the instances identified relate to affected properties that abut the limits. 26. It has become clear that various mitigating circumstances have contributed to these instances. In particular, in many cases, the referencers were not permitted to make contact directly with interested parties as any correspondence and communication was to be via various land agents. Unfortunately, the information provided by the land agents was, in several cases, incorrect or incomplete. Nonetheless, this information was cross checked against other available sources of information and, if in doubt, it was agreed that it would be prudent to conclude there was conflicting information and serve notice on all possibly interested parties, rather than run the risk of omitting anyone. Details of the identified reasons for instances requiring action are in paragraph 28 below. An explanation of the treatment of those that do not represent referencing defects is in paragraphs 32 and 33 below. 27. The remaining omissions that have been identified are generally due to human error which we consider does not represent an unusual level for a project of this type, scale and programme. It will also be noted that this reference was the first to be carried out under the previously untried procedures of the Scottish Parliament. 28 The review took into account the fact that various notices had been served since the Bill’s introduction for a variety of reasons. The findings were categorised according to the following categories:
Specific findings 29. The review revealed instances where action was required to identify parties to whom notification should be given. Each such instance related to one numbered plot within LOD/LLAU, and occasionally more, but whatever the number of plots, each instance represented one occasion or set of facts where something had occurred that required corrective action. The independent review team took the view that the level of error or adequacy should be measured against the number of instances requiring action. 30 In the case of land within LOD/LLAU:
31 In the case of affected property:
32 The review identified instances where what had given rise to the need for action was outside the control of the referencers. These cases came within the following categories:
33 In addition to the cases mentioned in paragraph 32 above, as has been explained to the Committee, wherever there is any uncertainty as to whether notice is required or there are conflicting claims, notice should be served on a precautionary basis. A number of the notices served in 2004 and also in connection with the review were served on this basis. Some of the recipients of these notices have advised us that they do not in fact have any relevant property interests. This category accounted for 9 instances, producing 45 notices/notifications. 34 The independent review team took the view that the cases described in paragraphs 32 and 33 above had no bearing on the adequacy of the referencing and ought not therefore to be counted in any totals of instances or notices. They are not therefore included in the following results of the review. 35 The review revealed that within LOD/LLAU there were 13 instances requiring action. They related to 98 plots and generated 217 notices. 36 The review revealed that in relation to affected property there were 19 instances requiring action. They related to land abutting 20 plots within LOD/LLAU and generated 41 notices. CONCLUSIONS The overall conclusions in completing the examination are:-
The review did not find any systematic failure and the conclusion is that the referencing exercise was fundamentally sound. However the system employed for the “affected parties” which was new to the scheme is addressed below.
The review did not find any clear pattern to the omissions. The reasons are varied, for example:
The scheme had a large number of individuals who were unwilling to give information directly to the referencing team. The information in some cases came via agents who were obstructive and provided unclear and conflicting information. In these cases, it is considered that “reasonable enquiry” had been made.
The lack of coverage by the Scottish Registers meant that there was a larger than usual dependence on ground interpretation for the abutting properties this caused increased difficulties due to the time scales. The dependency on interpretation is part of the function of the referencing team and cannot be 100% accurate. Where there is a prudent and logical interpretation it is considered that “reasonable enquiry” has been made.
Whilst there were no systematic errors, the bulk of the omissions are abutting limits and not in the Book of Reference. The inclusion of “Affected Parties” was a late addition to the scope of the referencing and substantially increased the scope of the referencing. To manage the increase in scope and the time scales the referencing did not parcel up the affected parties in the normal manner and included multiple landowners in large parcels. The impact of this was that individual boundaries were not clear and omissions made. This has been rectified during the examination.
In LandAspects’ experience, the methodology of the examination conducted for the review has resulted in possibly the best referenced scheme ever submitted and could be expected to be better than a re-reference. The examination has probed and examined all of the land parcels in the scheme. Where the examination has concluded that an interest has been correctly served this has been verified. Where a gap or alternatives have been identified, then a conservative approach has been taken during the examination with additional referencing undertaken with new notices being served as appropriate. Mouchel Parkman Services Limited promoter’s memorandum on referencing review 25 April 2005 INTRODUCTION 1. This purpose of this Memorandum is to:
2. The scope of the review, the methodology adopted and the findings of the review are detailed in the report on the review by LandAspects dated 25 April 2005. NATURE AND PURPOSE OF A LAND REFERENCE 3. A land reference is the exercise undertaken for the purpose of preparing (in the case of a Scottish Private Bill):
The act of carrying out a land reference is known as “referencing”. 4. The Promoter of a Private Bill has no powers to carry out a land reference. Accordingly, landowners are not obliged to disclose any ownership information. Further, a land reference is an initial investigation of prima facie land interests. It is not a title search. Because referencers have to rely on information volunteered, cross-checked so far as possible by reference to publicly available information, the accuracy of that information cannot be guaranteed. Referencers can only report on what appears to be the case on the basis of such information, Faced with an uncertain position or conflicting claims, the referencers must take the prudent course, which means that properties and names are included, and the owners, lessees and occupiers of those properties receive formal notification, even though it may later emerge that this was not required.64 There are established land referencing practices for dealing with such cases and deciding whether to include any particular interest. These were followed by LandAspects. 5. In the case of a Scottish Private Bill, the outcome of the land reference so far as relating to land within LOD/LLAU is recorded in a Book of Reference. Details of affected property are maintained by the land referencers, in this case LandAspects, but the Standing Orders do not require a Promoter to produce such details in an accompanying document. The purpose of gathering this information, both for the Book of Reference and affected property, is to identify those parties entitled by virtue of Annexe G to the Guidance to receive notice in accordance with Rule 9A.2.3(d)(i). INTERPRETATION AND IMPLEMENTATION OF THE STANDING ORDERS AND THE GUIDANCE Rule 9A.2.3(d)(i) - “heritable property affected by the Private Bill” 6. Rule 9A.2.3(d)(i) requires a Promoter to give notification of a proposed Private Bill to persons having an interest in “heritable property affected by the Private Bill”. At an early stage in the preparation of the present Bill, discussions took place on behalf of the Promoter between the Parliamentary Agents and officials of the Non-Executive Bills Unit (NEBU) of the Scottish Parliament, which, at that time, had responsibility for Private Bills. Among the detailed issues raised was the question of what was the intended scope of “affected”. Did it, for example, extend to properties outside LOD/LLAU and, if so, what criteria were to be adopted for identifying whether property was affected? 7. At a meeting with NEBU on 27 February 2002, the Head of NEBU indicated that this was a matter for the Promoter to judge and that the wording was “wide open” and deliberately intended to put the onus on the Promoter to decide appropriate criteria. With a view to agreeing a way forward, Parliamentary Agents wrote to the Head of NEBU on 15 May 2002, suggesting the introduction of a list of categories of property which should be treated as affected, which was the approach adopted by the General Orders relating to Provisional Orders made under the Private Legislation Procedure (Scotland) Act 1936. A copy of this letter is appended at Annex A to this Memorandum. Parliamentary Agents were informed that the Parliament’s lawyers were working on this and other issues. 8. In the absence of a response on the referencing issue, Parliamentary Agents wrote a reminder letter on 14 June 2002, a copy of which is appended as Annex B to this Memorandum. By way of response, the Head of NEBU on 26 July 2002 telephoned Parliamentary Agents to say that that the matter was in the hands of the Parliament’s lawyers. He hoped to respond the following week but, meanwhile, was happy to speculate on the basis of initial reactions. As regards referencing, he said the Parliament was unlikely to make any change to the Standing Orders. Because the Parliament’s procedures are subject to judicial review, a precise list might assist promoters but would leave the Parliament “wide open”. He expressed the view that those on the ground were best able to judge what property was affected. He did, however, accept that one might be looking at property on the basis that it was “specially affected”, i.e. over and above property generally. 9. No further communication was received. As a result, Parliamentary Agents gave their best advice to the Promoter as to why a reasonable approach would be to treat as property caught by this Rule:
10. Parliamentary Agents’ letter of 5 November 2002 to the Head of NEBU explaining the reasoning behind this decision, and telling the Parliament that it was to be implemented, is appended as Annex C to this Memorandum. In light of the reply from NEBU (dated 15 November 2002 and appended as Annex D to this Memorandum) that neither lawyers nor NEBU had any comment to make on this matter, the Promoter was entitled to regard its approach as having been accepted. 11. Annexe G to the Guidance has given rise to difficulties of interpretation. It has seemed to the Promoter that the likeliest interpretation of Annexe G is that the documents listed in paragraphs (a), (b) and (c) are included as possible sources of information, but that no one of them is definitive and all information must be considered, in particular, information from other sources, e.g. by reasonable inquiry, as anticipated by paragraph (d). This approach ensures that the information in the Book of Reference relies on the most reliable, up-to-date information obtained by the referencers from the available sources indicated. It therefore achieves the purpose of the reference, namely to identify those with relevant interests. 12. The other possible interpretation is that the Book of Reference should include everyone whose name appears in any of the public documents65 mentioned in paragraphs (a), (b) and (c), whether or not such persons in fact have a current interest. This could result in the inclusion of, e.g., landowners who had sold their property, but whose names remained on the register because the purchaser’s interest had not yet been registered, notwithstanding that information on the ground indicated that they no longer had any interest. On one reading, too, the registered information might exclude reasonable inquiry, i.e., having uncovered relevant information in any of those public documents, the reference could not include different information acquired on the ground. Patently, the interpretation outlined in this paragraph would fail to achieve the purpose of providing up-to-date land interest information. 13. Accordingly, the Promoter was (and, having taken senior Counsel’s Opinion, remains) of the view that the interpretation in paragraph 11 above is the correct one and represents the only reasonable way of achieving the intended ultimate purpose of serving notice on the correct people. 14. The Determination at Annexe M of the Guidance includes requirements regarding the Book of Reference. The Determination states “the Promoter is not required to include information about owners or lessees whose identity cannot, after reasonable enquiry, be ascertained”.66 It further states that the names and addresses listed must be extracted from the most recent information available, which supports the Promoter’s explanation above. EFFECT OF THE STANDING ORDERS AND THE GUIDANCE IN RELATION TO THE PROVISION OF INFORMATION IN ACCOMPANYING DOCUMENTS 15. Rule 9A.8.3 requires a Private Bill Committee to consider, among other things, “whether the accompanying documents lodged in accordance with Rule 9A.3.2…in the opinion of the Committee, satisfy the requirements of that Rule and are adequate to allow proper scrutiny of the Private Bill”. If the Committee decides that the accompanying documents do not satisfy the requirements of that Rule and are not adequate to allow proper scrutiny of the Private Bill, it may67 “allow the Promoter such reasonable period as the Committee considers appropriate to provide such further documents as, in the opinion of the Committee, should be provided. Any further documents provided under this paragraph are referred to as “supplementary accompanying documents””. 16. In this case, the Committee has not made any such decision. The report of the comprehensive review confirms the Promoter’s belief (as previously stated to the Committee) that the original reference – and hence the Book of Reference – was competent and adequate to allow proper scrutiny of the Bill. However, the comprehensive review has produced a body of information additional to what is in the Book of Reference. A supplementary Book of Reference will be provided to the Committee, if required. COMMENTS ON THE FINDINGS OF LANDASPECTS’ COMPREHENSIVE REVIEW 17. Paragraph [A] of the review refers to the instances that were identified where action was required. It appears that each instance represented a set of circumstances requiring some sort of action, and resulting in the service of one or more notices. A single instance might relate to more than one plot, and some did, but each instance represented one occasion or set of facts. As a measure of the adequacy of the referencing exercise the Promoter agrees with LandAspects that what is relevant is the number of occasions giving rise to corrective action. Book of Reference 18. The Committee is concerned to establish the competence and adequacy of the Book of Reference. The Book contains details of all the land and property within LOD/LLAU. 19. The report reveals 13 instances68 calling for action relating to land within LOD/LLAU. The number of plots within LOD/LLAU in the Book of Reference was 1327. The number of instances requiring action as a result of the review therefore represents 0.98% of the total number of plots recorded in the Book of Reference. 20. The number of notices generated by a single instance calling for action does not necessarily bear any relationship to the adequacy of the Book of Reference. For example, the number of interests in a single referenced plot may be anything from one upwards. Purely on a statistical basis, the number of notices generated in relation to land within the Book of Reference was 217. This represents 4.5% of the total number (478569) of notices and notifications served. Affected Property 21. The Committee is concerned to establish whether notification was given in respect of affected property (as defined in paragraph 1(b) above), in accordance with Rule 9A.2.3(d)(i). 22. The report reveals 19 instances calling for action relating to land abutting 20 plots listed in the Book of Reference. These instances and numbers of plots represent respectively 1.4 % and 1.5% of the total number of plots recorded in the Book of Reference. 23. The number of individual properties, including plots of land, that abuts any plot listed in the Book of Reference, is not relevant to the adequacy of the Book of Reference. The number of plots abutting any plot listed in the Book of Reference may be anything from one upwards. 24. The number of individual property interests giving an entitlement to notification is not relevant to the adequacy of the reference of affected property. The number of interests in any abutting plot may be anything from one upwards. Purely on a statistical basis, the number of individual property interests in affected property abutting LOD/LLAU giving an entitlement to notification and in respect of which notification was served was 41. This represents 0.85% of the total number (478570) of notices and notifications served. CONCLUSION 25. The Promoter considers that the comprehensive review was properly resources by LandAspects and that the time taken and personnel involved (between 5 and 14 people working a total of 3,000 man/woman hours between 17 February 2005 and 20 April 2005) was required in order to secure its adequacy. 26. Mr Gannon’s evidence confirms the competence of those conducting the comprehensive review. 27. Among the many major infrastructure projects on which they have been retained,71 LandAspects were involved in the land referencing exercise in respect of Edinburgh Tram (Line Two) Bill. The Committee, having heard the referencing methodology used on that project, stated in its report that it was satisfied that the notification process had been conducted accurately, thoroughly and timeously.72 Further details of commendations received by LandAspects from Promoters in respect of recent projects are provided in Annex E to this Memorandum. 28. The figures contained in paragraphs 18 to 24 above reveal a level of accuracy in terms of the referencing exercise which, as confirmed by Mr Gannon’s evidence, is competent by reference to recognised land referencing standards. 29. The Promoter believes that the correct interpretation of the Standing Orders and the Guidance is as explained in paragraphs 6 to 14 above. This interpretation is supported by senior Counsel. 30. The report of the comprehensive review demonstrates that the reference was competent and that the Promoter undertook reasonable inquiry to ascertain the identity of those entitled to receive notification pursuant to the Standing Orders and Annexe G. To the extent that there were defects, these were within a professionally acceptable margin and have now been more than made good by the action taken following the comprehensive review. The review and consequent action have gone far beyond what would normally be achieved by a competent reference. 31. The Book of Reference lodged with the Bill was in correct form and its contents were adequate and in compliance with the requirements of the Standing Orders and Guidance. 32. To the extent that the comprehensive review gives rise to corrections or changes in the Book of Reference, those corrections or changes will be collated in a Supplementary Book of Reference, which will be prepared in the same, compliant, form as the Book of Reference itself. 33. The combined result of the original reference, and the further work undertaken by LandAspects since September 2003, have therefore ensured that – within reasonably achievable limits – notification has been served on those entitled to receive it by virtue of Rule 9A.2.3(d)(i). John Kennedy & Co 25 April 2005 Annex A TEXT OF LETTER OF 15 MAY 2002 FROM JOHN KENNEDY & CO. TO PRIVATE BILLS UNIT Rule 9A.2.3(b)(1) and Determination One of the issues raised at our meeting with you on 28th February, and mentioned in my paper about Rule 9A, was the problem of determining what is meant by provision in a private Bill which will “affect” heritable property. In any given case it will be obvious that certain categories of heritable property are affected by a Bill. The obvious example is heritable property which will become subject to compulsory acquisition. What is less obvious is the position of heritable property that is only indirectly affected. In the case of linear works such as railways or tramways, obvious examples of indirectly affected property are properties fronting or backing onto the relevant works. Under the General Orders applying to Provisional Order promotions, in the case of tramways, notice must be served on frontagers. The same does not apply to property adjoining a railway, however. This is not the historical accident it might seem. It reflects the fact that the public at large is given notice of legislative proposals in the press and, in appropriate circumstances, on site. Where notice is given to specific individuals, it is in respect of some interest that is special to the individual concerned as distinct from the public at large. On that analysis, where the effect of a Bill is e.g. noise nuisance from passing trains, it is not a direct effect which would require notice specifically addressed to each owner of heritable property within earshot. By contrast, frontagers frequently have title to their land up to the centre line of the road, or at least that was the norm when the General Orders were formulated. A proposal which will or may prevent access to a frontager’s property is, therefore, a direct interference with that frontager’s proprietary right. When what is now General Order 14 was first formulated in the 19th century, the concern as I understand it was with the ability to stop and unload wagons in front of ones own premises. I am not saying that this is the rationale that is or ought to be behind a set of standing orders today, but it explains what has gone before. Taking the noise example, it is uncertain whether property fronting or backing on proposed works is affected by the Bill’s proposals in such a way as to require notice under the Parliament’s Standing Orders. If noise nuisance were a factor, one would have to bear in mind that the same could well apply to property further away from the works. In fact, of course, anyone within hearing distance will notice a change. Is that “affect” for the purpose of the Rule? In the Waverley context, the sort of problem that might well arise is where the railway passes through a valley with houses in different places on the hillside. Do we have to assess whether the noise travels in such a way as to cause a particular problem to any one property, and serve the owner of that property? This is where I have difficulty in advising the referencers, and I am fearful of their having to advise the promoters to make judgements that can only be subjective. The choice, I suggest, is between an uncertain general requirement of the sort presently in the Rule, on the one hand, and on the other a precise formula to which promoters can operate. Having given the matter a lot of thought, I do not believe the general approach works. There are several reasons for this. The requirements for promoters to comply with Standing Orders are absolute: there is no room for manoeuvre on the part of promoters and no express provision for the Parliament to waive a Standing Order requirement. (A waiver power does not seem to be implied by Rule 9A.8, as it might have been.) As a result, compliance is essential if the Parliament is to consider the Bill. This makes it vital that a promoter should know what it is he has to comply with. The doubts attached to “affect” mean that, in the case of heritable property, he does not. This is not a reasonable position, either for the promoter or any landowner. In the case of promoters, if a procedural defect is left undetected the validity of the ASP is not affected (section 28(5) of the 1998 Act), but if it is spotted the promoter might have to start again. As regards landowners themselves, vague requirements can only result in different landowners receiving different treatment. The difficulties of that are obvious. This is the more important policy issue, I suggest. It is also worth bearing in mind that notice will be given for the benefit of the public at large. If one formulates the notice requirement too widely in relation to landowners, one will be giving individual notices to landowners who ought properly to be able to rely on the newspaper notice. I have come to this problem with a clean sheet. Having worked my way through it, however, I have to conclude that the overall approach of the General Orders is the right one, namely that there should be a set of precise cases in which notice is required in respect of special interests, and that everybody else should rely on the notice to the public at large. General Orders (and the equivalent at Westminster) require notice to be given to landowners –
As you can see, a good many of these are relatively defunct. I mention them by way of illustration. However, they provide a framework within which referencers tell me they can work satisfactorily and – generally – reasonably economically. Circumstances having altered over the years, I daresay the catalogue bears examination. Perhaps we could discuss it when you and colleagues have had an opportunity to digest this letter. TEXT OF LETTER OF 14 JUNE 2002 FROM JOHN KENNEDY & CO. TO PRIVATE BILLS UNIT Waverley Railway Standing Orders I hope you will not mind if I ask you to press your legal colleagues about the work I know they are doing on our Standing Order points. We are getting to the stage where we need to put the Standing Orders to work. This is particularly true to in relation to referencing, where I am being pressed by the referencers to advise them on the extent of the referencing ‘envelope’ to which they should be working. I should be very grateful if this could be chased up, please. TEXT OF LETTER OF 5 NOVEMBER 2002 FROM JOHN KENNEDY & CO. TO PRIVATE BILLS UNIT Private Bill Procedure Rule 9A.2.3(d)(i) – heritable property affected by a private Bill Rule 9A.2.3(e)(ii) and Annexe M – books of reference On 15th May I wrote to you about the practical operation of this Rule and the problem of determining what is meant by provision in a private Bill which will “affect” heritable property. When you telephoned on 26th July you indicated that this was not an issue on which we could expect a substantive response. In view of this, I thought it as well to let you have the following by way explanation of the methodology adopted by the Stirling-Alloa and Waverley promoters to comply with the requirements of the Rule, and also my reasoning in advising on the adoption of this method. As I know my clients would want me to do so, let me emphasise the reason for concern. It is to establish what in practical terms the Rule requires promoters to do, and to do this with sufficient certainty to ensure compliance. Ambiguous requirements can only lead to promoters being unable to comply while third parties cannot be sure what is the protection to which they are entitled. With this in mind, the parties entitled to notification have been identified on the following basis: 1. In order to avoid uncertainty and ambiguity so far as possible, one needs to remove the element of discretion or subjective judgement. There needs to be a set of parameters to which promoters can work. You expressed reservations about relying on a precise list, along the lines of the old General Orders. I understood that and I have instead looked at what is the purpose of the notification requirement. 2. The range of people who might potentially be “affected” by a Bill’s provision is potentially undefinable. All sorts of people might be affected in one way or another to a greater or lesser degree. On the basis that the public advertisement of the Bill is intended for the public at large. I have advised my clients that the intention of the Rule must be to ensure that individual notices are given to owners of heritable property that is affected in a way that is special to that property i.e. affected in a way that other property in general is not. In terms of the General Orders regime we need to identify heritable property that is “specially affected” by the provisions of the Bill. 3. Proceeding in this way, we have been able to formulate a set of rules to which we can work without subjecting either the clients or the public to the vagaries of subjective judgement. 4. First, while acknowledging that the requirements of the General Orders are many of them archaic (notice to mill owners, and so forth), they are a scheme that has worked in the past and we have taken that as a foundation. The referencers (the people responsible for identifying those to whom notice should be given) have identified and listed any who would have been entitled to notice of this scheme were the General Orders in operation. Notices will be served on those people (if there are any) on that basis. 5. The General Orders provide for landowners to receive notice if their land or property rights are to be compulsorily acquired. Under standing orders a landowner was not entitled to receive notice of works on adjoining land which did not involve the compulsory purchase of his own land. (The apparent exception to this – the requirement to serve notices on landowners whose property adjoined proposed tramways - reflected a frontager’s interest in the road over which the tramway was laid.) 6. One cannot say that the owner of land immediately adjoining land on which works are to be authorised is necessarily specially affected by the proposed works. However, it is clear that such a person is more likely to be affected than a landowner further away. We have, therefore, referenced the route on the basis that the affected heritable property includes any property the boundary of which immediately adjoins any of the limits in the Bill. This means that, for example, those whose back gardens abut on the Stirling-Alloa-Kincardine railway will received notice as persons whose heritable property is affected. Anyone with property that does not have a common land boundary will not receive notice unless, of course, he is entitled to notice for some other reason e.g. that his private rights of way are to be stopped up. 7. The enclosed table, prepared to assist the referencers, lists the categories of property that we are treating as affected for the purposes of entitlement to notice. 8. The table also brings out another issue that I should mention. The Book of Reference contains particulars of owners, etc., of land that is to be compulsorily acquired. It does not include details of those landowners who are affected but whose land is not to be compulsorily acquired (see above). We are maintaining a separate list of such people. TEXT OF LETTER OF 15 NOVEMBER 2002 FROM PRIVATE BILLS UNIT TO JOHN KENNEDY & CO. Thank you for your letter of 5 November, regarding Private Bill procedures, which we have also talked over. I have discussed your proposed action with our legal department and upon which we have no comment to make at this time.
still haugh residents’ response to promoter’s oral evidence Response to the Promoters Evidence submitted at the Parliamentary Oral Meetings of the Proposed Waverley Railway Bill By the Residents of Still Haugh Fountainhall dated 15th April 2005 After reflection on the Oral meetings and the Evidence submitted by the Promoter at these meetings we feel it necessary to respond to elements of the evidence submitted. In issuing this response we would categorise our comments into the following sections.
1. Promoters Notification The process was and is obviously flawed, no matter how Alison Gorlov professes it isn’t. As they keep stating, this is a first for a project of this type, therefore surely they should have been extra cautious that all areas were covered not just assumed. The first notifications issued September 2003 supposedly an accurate reflection of all the parties affected by the proposed railway route, were found to be inaccurate. This was confirmed by the discovery of a further 130 properties not having received notifications in September 2004. We would refer you to the Parliamentary meeting of 16th September 2004 when it was stated by the committee members that: -
We would also highlight that the residents of Still Haugh were not notified at this time and that notification notices were only issued to us in October 2004 after we wrote to the First Minister. Assurances were given at this time that all notification notices were now issued to affected people by the promoter. We refer to the meeting of 28th February 2005, when yet again a further notification notice was found not to have been issued. The promoter then gave assurances again that all notices had been served
We refer you to the meeting of the 21st March 2005 when yet again further errors were found and failures to notify identified. The promoter stating that after re-assessment a further 40 people, or probably more have not been notified. A further 5 week extension was then requested by the promoter to carry out more work on this. We feel the committee has been more than lenient so far. The Parliamentary agents attitude that normally all these missed notifications would just be put down to hard luck beggars belief. This casual attitude seems to be the norm where the promoter is concerned. We consider that the promoters document as issued in September 2003 was inaccurate in the extreme relating to notifications and that the bill should proceed no further on this issue alone. We consider that more than enough leaway has been given to the promoter on this issue and that the promoter’s document should fall at this point. We fail to see how any other conclusion can be arrived at unless the committee considers that the promoters document can be revisited as many times as it likes to achieve its own ends. Notification notices Regarding notification notices issued we can comment as follows: - We received no plans or any other information with our notification in October 2004. We had to go to the library and try to make sense of the Maps, Plans and Book of Reference, which was not meant to be easy to understand by the layman. We then had to purchase copies of maps from S.B.C. To date we have had no contact whatsoever from S.B.C. apart from an approach in March 2005 by Andrew Rosher who got our name from the list of Objectors on the panel. After repeated phone calls he finally arranged to meet us and a few other residents at our home. The meeting, we felt, was not very informative but he assured us he would send us out some information on a few things, to date we have heard absolutely nothing. When we told him of our concerns with regard to trying to sell our properties now that the railway scheme is common knowledge he replied that we could sell our property to a ‘trainspotter’. We were all shocked by his casual manner to our concerns. This analogy was also used to all the other panel objectors we are informed, the other objectors also warned us that they had been approached to sign a letter withdrawing their objections, but this did not happen at our meeting with Andrew Rosher. We don’t think that this is acceptable, is it allowed? ‘Affected’ should mean what it says affected by the railway, not just abutting the line. As in our case nos. 2-6 abut the line but nos. 7-14 are separated by a small drainage ditch. They are the same distance from the track as the other houses but are not entitled to be notified although they too will have the same severe impact. Nos. 5 & 6 have had no notification. How many other people will be affected by the rail line but do not merit acknowledgement? All these people mount up. We are repeatedly reminded by the Promoter that there are only 130 objectors, but lest they forget, 1 objection like our covers up to 30 properties, which equals at least 60 people (not just one person). We are, we feel undermined at every opportunity. Even at the Oral Meeting on 14th March at Galashiels the objectors on the panel were ejected from the lunchroom as the promoter wanted to have a ‘private meeting’. 2. Housing. As stated by Homes for Scotland & the Federation of Masterbuilders – Committee Official Report 28 Feb 2005 figures suggest that 200 houses a year are being built in the relevant part of the Borders with no current market indications that this rate could be accelerated. Homes for Scotland also stated that it questioned the ability of house building contractors to cope with the volume of housing stated as being deliverable by both Midlothian and Borders Council. What proof is there that sufficient research has been instigated to substantiate this amount of building growth by the limited amount of volume builders in the area? Bearing in mind that other councils have similar house building pressures within their areas. As an example of the past record, we would quote from Homes for Scotland press release dated 21st December 2004 stating the record of Midlothian for the period of April 2003 to April 2004. “Major Residential Planning Applications decided within 4 months – Target 80% Actual 0%”. This identifies a fundamental problem with the Planning department within the area to deliver the goods. There are also development constraints with Scottish Waters’ infrastructure for both water supply and drainage. This would also cast doubt on the 10,000 proposed new houses, questioning whether the existing Scottish Water infrastructure would be capable of sustaining such an ambitious volume of housing. The suggested levy on developers of a contribution of £1,500 would not be absorbed by the developer. The landowners would definitely not take the loss. Therefore it is inevitable that the housebuyer would have to take the extra expense. This is not an incentive to a buyer of a new home or a means of creating affordable housing. It would also appear that this levy would be in addition to the existing Section 75 contributions. Therefore creating a further increase in house prices passed on by the developer. 3. Transport The promoter has said in their figures the new homeowners of the proposed 10,000 new homes that ‘would’ be built (the railway dependent on the houses, the houses dependent on the railway) would use the railway. By this logic not all homeowners can be assumed to be vehicleless. No mention has been made about the extra cars, vans etc. belonging to these new homeowners that would be put on the roads. The transport figures the promoter has given, states that after the proposed opening of the railway traffic volume would decrease. But if you take 10,000 new homes at approx. 2 cars per household, this equates to a further 20,000 more vehicles on the road, not fewer, which then increases the emissions etc. In Table 4.2 of the Halcrow Business Case 14/2/05 the figure for commuters into Edinburgh from the Borders and Midlothian is 21,167 combined. All other regions shown are per region. Is this to hide the fact that Borders commuters are a low figure compared to the rest? What is the figure for Borders alone? As Alison Gorlov stated at the meeting on 21/3/05 ‘One can do an awful lot of things with numbers’ see their estimate on numbers of people who actually want the line, will use the line, car reductions, emissions reductions…..etc. Can this realistically be accurate? We consider that due to the proposals for a station at Galashiels with the next station being at Gorebridge this allows no access to the proposed rail link for the occupants of the rail corridor between these two stations. As stated by Dr. Mark Brown of Halcrow there will be losers as well as winners, however we do not consider that his statement that the number of losers is relatively small stacks up with the fact that this area represents a 28 mile section of the track inaccessible to the rural occupants within this zone. We consider that the occupants within this area represent a substantial amount of losers. We are what the promoter classes as the unfortunates. We do not consider this acceptable or fair for the amount of money proposed to be spent on the project. 4. Emissions Train emissions have been glossed over. Diesel is the worst pollutant. Diesel is known to produce more particles than petrol. Petrol these days is by far safer healthwise than diesel. The trains they propose to use are Class 170 DMU, these can have up to 6 units and each unit is powered by their own engine, so it is not a case of 1 train = 1 engine, therefore the emissions, instead of being 1 train as a whole could be up to x 6 the amount of emissions. 5. Environment We agree with Scottish Natural Heritage that a much more detailed assessment of the environmental impacts needs to be done before the proposed Bill is passed, as they already state we will lose 361 hectares of habitat completely and the impact will be moderate. Any loss of habitat or wildlife would be severe. Where we are at Fountainhall many of the Red List Birds mentioned in the EU Directive are present and not mentioned in the ES in this area, also water vole and bats that we know of. 6. Noise assessment & mitigation. The new ERM noise assessment is not a comprehensive look at Still Haugh as the receptors were positioned in the totally wrong places. They do not correspond to the places worst affected by the line. This was pointed out in our reply to the promoter dated 21 Feb 05 but have had no response. A copy of our reply dated 21 Feb 05 is attached. Building a railway next to private dwellings should surely not be allowed, it would be a different situation if developers wished to build next to a functioning railway, the home buyers would then have the option of buying or not. We have not got that option. We chose this area for its rural location, scenery and peace and quiet. It has been mentioned by ERM that bird song will go some way to camouflaging the noise of the trains. Who are they trying to kid. 7. Health & Wellbeing To have 4 trains per hour running from approx. 6.00 in the morning – 12.30 at night does not bode well for ones health or sanity, how many of the promoters teams of people would relish that as an everyday occurrence for themselves, but again we come back to the comment by Dr. Brown of Halcrow that we are just the losers in this instance. The promoter allowed the building of Still Haugh alongside the railway track knowing full well at that time, they were drawing up proposals to reopen the line. Surely this building should not have been allowed. Now we are in a situation where, as the line is now fully public knowledge, we would find it extremely difficult to sell our homes, should we want to, and if the line goes ahead we would have to wait until the railway had been operational for 1 year before we could find out if we were entitled to any compensation. We are between a rock and a hard place. 8. ECHR As the promoter keeps referring to Article 1 Protocol 1 – ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest…. And Article 8 (1) – ‘Everyone has the right to respect for his private and family life, his home and his correspondence’ and (2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country……. Point 1 - We shall have no peaceful enjoyment of our possessions if the railway reopens, we will be excluded from using our back gardens because of noise and pollution. (4 trains per hour). We will be virtual prisoners in our own homes. Point 2 – It has been pointed out by several bodies eg. Strategic Rail, Homes for Scotland, Arup that there is not an economic case for the railway certainly past Gorebridge, therefore we don’t feel it is for the economic well-being of the region far less the country. In Conclusion. A great deal of time and effort has been expended by the objectors of Still Haugh and many others, in presenting detailed objections to the proposed railway. This has been done by trying to interpret complicated and incomplete promoters documents. This is proved by the amount of amendments and supplements added to the ES subsequent to its inception in 2003. It appears that the promoter only responds after the objectors have cited specific elements of the document not dealt with adequately at the outset. In our particular case we consider that we have been dealt with most shoddily by the distinct lack of contact by the promoter and adequate response to our concerns. We hope that the Committee take on board the continued frustrations of the residents of Still Haugh and other objectors, by the promoters lack of communication throughout the process to date, contrary to the promoters statements expressed at the oral evidence meetings. On the behalf of the residents of Still Haugh, Fountainhall 15th April 2005 terraquest report on review by landaspects 1. Introduction The comprehensive review of land referencing in relation to the Waverley Railway (Scotland) Bill has now been completed by LandAspects. The scale of the review has been significant involving the application of over 3000 management and referencing staff hours. TerraQuest have been instructed to review LandAspects’ report on the comprehensive review (reference 2 of this document). The task has been carried out by TerraQuest’s Operations Director, John Gannon, who has thirty three years experience of referencing for parliamentary Bills. This document summarises the results of a review of the report, together with clarifications supplied by David Fish, (Quality Manager, LandAspects), at a meeting at TerraQuest’s office on 10 May 2005. This document constitutes the report for submission to the Waverley Railway (Scotland) Bill Committee. 2. Objectives The purpose of the task was to provide an independent view as to whether the comprehensive review as reported on by LandAspects, is likely to have resulted in all parties with a notifiable interest being identified, to the extent that that could be achieved by reasonable enquiry, and receiving the required notification. 3. Results of This Review 3.1 Referencing Method LandAspects’ interim report dated 17th March 2005 summarised the referencing method used to prepare the Book of Reference and Notices. The method described should, if carried out diligently and by suitably trained and experienced staff, ensure that all parties with a notifiable interest have been identified, to the extent that that can be achieved by reasonable enquiry, and that they have received the required notification. In TerraQuest’s view, based on the information in LandAspects’ report of the review and based on observations made by TerraQuest during its meetings with LandAspects’ staff, it appears that the method has been carried out diligently and by suitably trained and experienced staff. 3.2 Comprehensive Review of Referencing Outputs Method LandAspects’ report indicates that the main cause of omissions in the original referencing outputs was human error caused by time pressures. LandAspects’ report indicates that the comprehensive review was undertaken in accordance with the agreed method, with some minor variations required to complete the work within the required timescales. LandAspects and Terraquest do not, however, consider that these minor variations have had a significant impact on the quality of the outputs of the review. 4. Conclusions The purpose of the TerraQuest review was to provide an independent view as to whether the methods applied by LandAspects would ensure that all parties with a notifiable interest had been identified, to the extent that this could be achieved by reasonable enquiry, and had received the required notification. TerraQuest’s view in this regard is set out in the following two sections. 4.1 Identification of Parties with a Notifiable Interest The referencing method applied by LandAspects constitutes reasonable enquiry, in that it:
The method applied to the comprehensive review of outputs has made it is possible for LandAspects to prove that:
The referencing methods applied are sufficiently robust to result in a competent reference and a compliant Book of Reference. As previously stated in evidence to the Waverley Railway (Scotland) Bill Committee,73 the methods applied cannot be guaranteed to identify errors and omissions which may have arisen as a result of:
The probability of such errors and omissions arising from these causes should have been reduced as a result of the review and resulting corrective actions carried out by LandAspects. Elimination of such errors and omissions is not, however, a practical possibility given the nature of the source data and the level human involvement required to collect and process the data. 4.2 Notification of Notifiable Parties The methods applied enable LandAspects to prove that all parties appearing in the master Book of Reference and land referencing database have been issued with a notice. 5. References Method statement document prepared by Mouchel Parkman Services Limited trading as LandAspects dated 17th February 2005 Report by Land Aspects on the Comprehensive Review of Land Referencing in relation to the Waverley Railway (Scotland) Bill dated 25th April 2005 Reference 1 Method statement document prepared by Mouchel Parkman Services Limited trading as LandAspects dated 17th February 2005 Waverley Railway (Scotland) Bill Comprehensive examination of the entire referencing process Scope: An examination of every aspect of the Waverley Railway Project land referencing and notification process as undertaken to date to ensure that those with notifiable interests in land within limits and those abutting the widest limit of the scheme, in both cases at the time of the Bill Introduction, were notified as required by Rule 9A.2.3(d)(i) of the Standing Orders of the Scottish Parliament and the Determination by the Presiding Officer on the notification for Private Bills affecting persons or classes with an interest in heritable property. The examination will take into account that various notices have been served since the Bill Introduction for a variety of reasons and will summarise findings according to the following categories: A. Confirmed reasonable enquiry and, where appropriate, confirmed searches made in Sasines Register or Land Register or Valuation Role, and notice correctly served B. Reasonable enquiry performed however changes to interest details but additional / reserved notice may not be required C. Reasonable enquiry performed however changes to interest details and notice now been served D. Reasonable enquiry performed however changes to interest details and notice to be served E. Property / interest(s) to be referenced and notice to be served Methodology: 1. Base information to be reviewed: Final Parliamentary Plans Final Book of Reference (listing those who are to receive landowners notices) Postal Lists (stamped by Post Office) (listing both those on Book of Reference and those with interests in heritable properties and to receive notices) Spreadsheet showing details of notices sent Hard copy referencing files (audit trail of reasonable enquiry) Land ownership plans 2. Break down of review 1st Step 2nd Step 3rd Step 2.1 Cross Checking Fresh set of Land Ownership Plans Manually mark up notice coverage as full extent of land referencing boundary (inside all limits and immediately adjacent to widest extent of LODs and LLAUs) Manually mark up individual parcels within referencing boundary to full extent of each ownership parcel and mark up land ownership schedule, using: Base information for each parcel from land referencing files (inside all limits and immediately adjacent to widest extent of LODs and LLAUs) Record each source of information for review process (summarised under each interest in land ownership schedule) Overlay Final LOD and LLAU for the Scheme and Parliamentary Plan plot boundaries on the fresh Land Ownership Plans Tick off each Book of Reference plot and affected land plot on Parliamentary Plan and cross check against underlying land ownership parcel boundary and tick off against updated land ownership schedule. Tick off each interest in the Book of Reference and affected land plot against each corresponding interest in the land ownership schedule, from which it is derived and against Postal List. Queries: Was this entered into the database and onto the plans? 3. Deliverables Land Ownership Plans with Parliamentary Plan boundaries and LODs and LLAU overlaid - marked up to show check against BoR and postal list. Fresh Land Ownership Plans overlain with final scheme limits showing notice coverage of abutting properties. Ownership Schedule listing properties / interests and parcels shown on Land Ownership Plans (within LODs and LLAUs and abutting) Summary of source of the information and whether the interest has been notified in the original notice run or the later notice run or subsequently Report summarising findings 4. Should omissions in the notice run be found Seek advice / agreement from Parliamentary Agents and the Client for any further notification process. This will be done immediately if any omissions are found. 5. Programme: Start 17th February 2005. One week for CAD and Database simultaneously to produce summary documents 2 days to produce final report and present findings. 6. Resources: Dedicated team of referencers to audit the process and the results. Drawn from experienced referencers from separate Land Aspects Northern Ireland office and supervised by Land Aspects Quality Manager. Neither the team nor the Quality Manager has had any previous contact with the Waverley project. To increase the resource would compromise the robustness of the comprehensive examination as it would bring in additional measures of resource control that would not necessarily result in benefits to effectiveness nor timeliness. If time is of the essence, we would suggest a reduction in workscope within the areas you may decide are less critical. Mouchel Parkman Services Limted trading as LandAspects 17 February 2005 Reference 2 Report by Land Aspects on the Comprehensive Review of Land Referencing in relation to the Waverley Railway (Scotland) Bill The Waverley Railway (Scotland) Bill (“the Bill”) Scottish Borders Council (“the Promoter”) Report by LandAspects on the Comprehensive Review of Land Referencing in relation to the Waverley Railway (Scotland) Bill Mouchel Parkman Services Limited 25 April 2005 INTRODUCTION 1. This purpose of this report is to provide the Waverley Railway (Scotland) Bill Committee (“the Committee”) with LandAspects’ report on the findings and outcome of the comprehensive review of land referencing in relation to the Bill. 4.3 SCOPE & PURPOSE OF REVIEW 2. As a result of additional information, LandAspects previously undertook a check of interests served in localised areas and agreed action accordingly. That exercise was by definition limited in scope. 3. The review methodology was designed to provide additional assurances and confidence in respect of the robustness of the land referencing exercise (“the reference”). The examination looked at every aspect of the reference, as undertaken. It did not rely on information gathered during the routine checks during the reference, nor did it rely on information gathered as a result of checks previously undertaken, prior to and most particularly since the Bill’s introduction. 4. The scope of the review involved an examination of every aspect of the Waverley Railway Project land referencing and notification process, as undertaken to date, to ensure that those, at the time of the Bill’s introduction, with notifiable interests in land within limits and those abutting the widest limit of the scheme, were notified. 5. This methodology has been adapted in light of comments received from the Committee and from John Gannon (Operations Director, Terraquest Solutions plc), the independent consultant undertaking the review of the methodology adopted for the review. 6. The team which carried out the review comprised predominantly referencers from LandAspects' Northern Ireland and Birmingham offices. They are part of the same company (within Mouchel Parkman) as the Waverley team, but are separate from LandAspects’ Scottish office and have had no previous connection with the Waverley reference. As a result, they had no preconceptions about the project. They had the necessary referencing expertise to carry out the review. The review team was under the direct supervision of David Fish, LandAspects' Quality Manager, reporting directly to Albert Dunlop, LandAspects’ Managing Director. 4.4 PROPOSED METHODOLOGY As previously reported to the Committee, the methodology adopted was as follows: 7. Base information reviewed:
8. Break down of review: 1st Step: 2nd Step: 3rd Step: 9. Cross Checking: 4.4.1.1.1.1 Fresh set of Land Ownership Plans:
10. Queries:
11. Deliverables: Land Ownership Plans with Parliamentary Plan boundaries and LODs and LLAU overlaid - marked up to show check against BoR and postal list. Fresh Land Ownership Plans overlaid with final scheme limits showing notice coverage of abutting properties. Ownership Schedule listing properties / interests and parcels shown on Land Ownership Plans (within LODs and LLAUs and abutting) Summary of source of the information and whether the interest has been notified in the original notice run or the later notice run or subsequently Report summarising findings 12. Should omissions in the notice run be found: Seek advice / agreement from Parliamentary Agents and the Client for any further notification process. This will be done immediately if any omissions are found. 13. Programme: Start 17th February 2005. 2 days to mobilise. One week for CAD and Database simultaneously to produce summary documents 2 days to produce final report and present findings. 14. Resources: Dedicated team of referencers to review the process and the results. Drawn from experienced referencers from separate LandAspects office and supervised by LandAspects Quality Manager. Neither the team nor the Quality Manager has had any previous contact with the Waverley project. ACTUAL METHODOLOGY 15. The method by which the land ownership information was filed enabled a detailed cross check of each available source of information to check that reasonable enquiry had been undertaken. The second stage involved a checking off exercise on hardcopy plans and by reference to postal list records, to check that notices had been served on all interested parties reasonably believed to have enjoyed an interest in land either abutting or within limits, at the time of Bill’s introduction. In addition, in some instances, where further interested parties came to light who have since acquired an interest in such land, notice was served on them in line with a prudential approach. In this respect, the review went above and beyond its remit. 16. The referencing files were reviewed and examined to determine whether reasonable enquiry was undertaken, as defined and agreed with the Promoter. Where further enquiry was required, LandAspects undertook additional referencing work, as appropriate, including further searches of the Registers to double check details. In some cases, the Promoter served further notices, either because they were not served previously and should have been, or where it was decided that it would be prudent to serve notice just in case. This process is summarised in the section below dealing with the results of the review. 17. At each stage of the review, the findings were summarised and communicated to Alison Gorlov, of John Kennedy & Co, Parliamentary Agents for the Bill, to agree further action required. The review was prioritised to concentrate on the areas which were believed to be most at risk of an interest being omitted from service of notice, informed by comments regarding notification since Bill introduction. This approach was explained previously at Committee hearings. LandAspects has now reviewed complete coverage of land that abuts the widest limits and all land within limits. 18. The comprehensive review was an enormous exercise which effectively represented a complete re-reference, except for visiting all relevant properties and repeating interviews with all apparently interested parties (visits were made to some properties where ambiguities were identified and had to be resolved). It took considerably longer than anticipated to retrieve the documents from archives in a manner required for an in-depth review. This resulted in a delay to starting the actual review and cross-check exercise. Resources were maintained at a maximum level to finalise the examination in the shortest time, whilst ensuring technical integrity. 19. Until the data was collated and the exercise started it was very difficult to predict how long it would take. After initial collation it became evident that, due to the vast quantities of data, this would take longer than originally estimated and resources from other LandAspects were added, requiring significant management resource to co-ordinate a team ranging from 5 to 14 people on any one day. This involved a significant logistical exercise to ensure that tight control was retained at all times, to ensure that the process was followed in full and that a systematic review of all relevant information was undertaken by referencers, followed by interpretation of the results and agreed action by the team leaders. All of this exercise was completed one week earlier than agreed at the last hearing, as it was understood that to do otherwise could impact further on the critical path for the Preliminary Stage hearing process. 20. In order to meet the timescale, modifications to the methodology outlined earlier in this memorandum were agreed with the Parliamentary Agents and with the independent expert, John Gannon. 21. In the original methodology of 17 February 2005, it was proposed that the deliverables would include the following documents:
22. Due to the challenging timescale for completion of the review, it was agreed that, although these exercises would be completed, the production of new documents showing this information would add little and would represent a significant additional resource implication. Therefore, it was agreed that the deliverable would be a summary, issued in batches as any issues arose, of any instances of error that required some kind of action. This action was subsequently discussed, agreed and executed. RESULTS - BREAKDOWN OF OUTPUTS General 23. The review did not identify a trend relating to any one process or member of the project team responsible for the original reference. However, it is important to note that the reference was undertaken within a very challenging timescale, including a large number of changes and late additions to the limits which contributed to omissions identified. 24. The level of instances calling for further action to be taken identified by the review is not, in the opinion of LandApsects, unreasonable for a project of this size, type and programme. This detailed review has effectively constituted a re-reference, albeit with the exception of the initial data collection exercise. We suggest that, if a similar exercise were undertaken for any reference, the results, in terms of interested parties and the notices served, would be different to the original outcome when the reference was conducted first time round. 25. The results below are summarised according to various categories, as it is important to split those relating to properties that abut the widest extent of the LODs / LLAUs (limits of deviation and the limits of the land to be acquired or used) and those relating to properties that are within limits and appear in the Book of Reference. By far the majority of the instances identified relate to affected properties that abut the limits. 26. It has become clear that various mitigating circumstances have contributed to these instances. In particular, in many cases, the referencers were not permitted to make contact directly with interested parties as any correspondence and communication was to be via various land agents. Unfortunately, the information provided by the land agents was, in several cases, incorrect or incomplete. Nonetheless, this information was cross checked against other available sources of information and, if in doubt, it was agreed that it would be prudent to conclude there was conflicting information and serve notice on all possibly interested parties, rather than run the risk of omitting anyone. Details of the identified reasons for instances requiring action are in paragraph 28 below. An explanation of the treatment of those that do not represent referencing defects is in paragraphs 32 and 33 below. 27. The remaining omissions that have been identified are generally due to human error which we consider does not represent an unusual level for a project of this type, scale and programme. It will also be noted that this reference was the first to be carried out under the previously untried procedures of the Scottish Parliament. 28. The review took into account the fact that various notices had been served since the Bill’s introduction for a variety of reasons. The findings were categorised according to the following categories: a) duplicate interests or notices where, on reflection, no further action was required according to the remit of this review; b) instances where it was felt prudent to serve notice “just in case”; c) instances where LandAspects has gone above and beyond the remit of this review and served notice on a new party where this information has come to light; d) instances where reasonable enquiry has been undertaken, and there was no reason to believe that further interested parties exist (although where these have since come to light the interested parties have now been served as appropriate); e) late information provided by an interested party or third party after the point at which the land ownership data was frozen; f) incorrect information provided by a third party; g) incomplete information provided by a third party; h) incorrect GIS coding; i) data entry error; j) misplaced information; k) late information received and not entered; l) unexplained computer / human error. 4..4.1.1.1.1.1 Specific findings 29. The review revealed instances where action was required to identify parties to whom notification should be given. Each such instance related to one numbered plot within LOD/LLAU, and occasionally more, but whatever the number of plots, each instance represented one occasion or set of facts where something had occurred that required corrective action. The independent review team took the view that the level of error or adequacy should be measured against the number of instances requiring action. 30. In the case of land within LOD/LLAU: (a) the number of landowners entitled to receive notices as the result of any one instance was whatever number of landowners had an interest in the plot or plots in question; and (b) the number of notices generated by any one instance depended upon (i) the number of landowners and (ii) whatever number of notices each was entitled to receive (up to three – outright purchase, acquisition of rights only and temporary possession). 31 In the case of affected property: (a) each instance related to land abutting one (occasionally more than one) numbered plot within LOD/LLAU; (b) the number of landowners entitled to receive notification as the result of any one instance depended upon (i) the number of plots outside limits that abutted the relevant plot within LOD/LLAU and (ii) the number of landowners who had an interest in those abutting plots; and (c) the number of notices generated by any one instance was equal to the number of landowners.75 32. The review identified instances where what had given rise to the need for action was outside the control of the referencers. These cases came within the following categories: (a) incomplete or incorrect referencing information supplied to Land Aspects by third parties in 2003 (3 instances producing 29 notices/notifications); (b) information that came to light as the result of investigations made as part of the review and which was not revealed by the original reference, this notwithstanding that full, reasonable, referencing enquiries had been made at that time (4 instances producing 22 notices/notifications); (c) interests that were brought to the attention of the Promoter and Land Aspects by the landowners themselves coming forward, and which could not have been discovered by referencing enquiries (3 instances producing 42 notifications). 33. In addition to the cases mentioned in paragraph 32 above, as has been explained to the Committee, wherever there is any uncertainty as to whether notice is required or there are conflicting claims, notice should be served on a precautionary basis. A number of the notices served in 2004 and also in connection with the review were served on this basis. Some of the recipients of these notices have advised us that they do not in fact have any relevant property interests. This category accounted for 9 instances, producing 45 notices/notifications. 34. The independent review team took the view that the cases described in paragraphs 32 and 33 above had no bearing on the adequacy of the referencing and ought not therefore to be counted in any totals of instances or notices. They are not therefore included in the following results of the review. 35. The review revealed that within LOD/LLAU there were 13 instances requiring action. They related to 98 plots and generated 217 notices. 36. The review revealed that in relation to affected property there were 19 instances requiring action. They related to land abutting 20 plots within LOD/LLAU and generated 41 notices. 4.5 CONCLUSIONS The overall conclusions in completing the examination are:- (a) No systematic errors. The review did not find any systematic failure and the conclusion is that the referencing exercise was fundamentally sound. However the system employed for the “affected parties” which was new to the scheme is addressed below. (b) No pattern to the omissions. The review did not find any clear pattern to the omissions. The reasons are varied, for example: (c) Unco-operative Individuals. The scheme had a large number of individuals who were unwilling to give information directly to the referencing team. The information in some cases came via agents who were obstructive and provided unclear and conflicting information. In these cases, it is considered that “reasonable enquiry” had been made. (d) Lack of coverage by the Scottish Registers The lack of coverage by the Scottish Registers meant that there was a larger than usual dependence on ground interpretation for the abutting properties this caused increased difficulties due to the time scales. The dependency on interpretation is part of the function of the referencing team and cannot be 100% accurate. Where there is a prudent and logical interpretation it is considered that “reasonable enquiry” has been made. (e) Bulk of omissions abutting and not in the Book of Reference. Whilst there were no systematic errors, the bulk of the omissions are abutting limits and not in the Book of Reference. The inclusion of “Affected Parties” was a late addition to the scope of the referencing and substantially increased the scope of the referencing. To manage the increase in scope and the time scales the referencing did not parcel up the affected parties in the normal manner and included multiple landowners in large parcels. The impact of this was that individual boundaries were not clear and omissions made. This has been rectified during the examination. (f) Examination better than a Re-Reference. In LandAspects’ experience, the methodology of the examination conducted for the review has resulted in possibly the best referenced scheme ever submitted and could be expected to be better than a re-reference. The examination has probed and examined all of the land parcels in the scheme. Where the examination has concluded that an interest has been correctly served this has been verified. Where a gap or alternatives have been identified, then a conservative approach has been taken during the examination with additional referencing undertaken with new notices being served as appropriate. Mouchel Parkman Services Limited 25 April 2005 opinion of senior counsel for scottish borders council on land referencing
Dear Mr Cullen Scottish Borders Council (“Promoter”) Waverley Railway (Scotland) Bill (“Bill”) Waverley Railway (Scotland) Bill Committee (“Committee”) Request for Senior Counsel’s Opinion on Land Referencing Issues We refer to the consultation with you held on 21 April 2005 in respect of land referencing issues. We write (1) to update you on proceedings before the Committee and (2) to request your written opinion on the land referencing issues set out below. The report by LandAspects on the comprehensive review of land referencing has been completed and we enclose the following documents for your consideration. 1. Report by LandAspects on the comprehensive review of land referencing in relation to the Bill, submitted to Committee. 2. The Promoter’s Memorandum in respect of the comprehensive review of land referencing by LandAspects, submitted to Committee. 3. Report by John Gannon, TerraQuest Solutions plc on the comprehensive review of land referencing undertaken by LandAspects76. 4. Standing Orders and Guidance on Private Bills 5. Your papers, which you had returned to us. The Committee convened on 29 April 2005 to consider items 1 and 2 above but chose not to hear oral evidence from the Promoter. A further committee meeting will now be convened on 1 June 2005 where the Committee will hear evidence from Alison Gorlov, John Kennedy & Co, Ashley Parry Jones and David Fish of LandAspects, from John Gannon and also from the Land Registers and the Leaders of Midlothian and Scottish Borders Councils. The Committee has not in terms of Paragraph 16 of Document 2 requested a Supplementary Book of Reference. The Promoter requests a written opinion from you as soon as possible on the following issues: - (a) Is the Promoter’s interpretation, that “heritable property affected by the Private Bill” within Rule 9A.2.3(d)(i) can be taken to be (a) land and property within LOD/LLAU and (b) land and property outside but sharing a common boundary with LOD/LLAU (all as set out in paragraphs 6 to 10 inclusive of document 2 above), a reasonable way of applying the Standing Orders? (b) Is the Promoter’s interpretation of Annexe G to the Parliament’s Guidance on Private Bills, as set out in paragraph 11 of document 2, correct and does it represents the only reasonable way of achieving the intended ultimate purpose of serving notice on the correct party? We look forward to hearing from you at your earliest convenience. Opinion of Senior Council for Scottish Borders Council re Further Land Referencing Issues [PDF] Footnotes: 63 The exception to this was the case where reasonable enquiry failed to disclose any owner or lessee of unoccupied land on which there was no building to which letters could be delivered. In the absence of anyone to whom notification could be given, there was no means of serving any notice or notification because there was no delivery point on the land and (unlike other similar procedures e.g. at Westminster) the Standing Orders do not make provision for notice to be affixed to the land. Without such provision the fixing of notice on land would be a trespass. The result was that nothing could be served in respect of this land. 64 The Committee will recall the notices served last year in relation to properties in Gorebridge which might have had common ownership or other rights in land forming part of a housing development. After the notices were served some of the recipients contacted LandAspects to say that they had no interest in the land. Similarly, the review has revealed one case where the person whose name is registered as owner of the property is not the person who has claimed ownership on the ground. The person on site may be e.g. a recent purchaser whose interest has not yet been registered. As this could not be ascertained, notification has been given to both individuals. 65 The Council Tax Register, listed in paragraph (c) of Annexe G, is not a public document and so is not available to any Promoter of a Private Bill. 66 The Promoter believes that one should not attach significance to the omission from this sentence of reference to “the occupier”, which is mentioned in the previous sentence in Annexe M, as one of the persons whose details should be included in the Book of Reference. 67 Paragraph 5.10 of the Guidance says that, in these circumstances, the Committee will not normally decide to recommend that the Bill should not proceed as a Private Bill without first offering the promoter an opportunity to provide supplementary accompanying documents. 68 See paragraph 17 above and paragraph [A] of the report on the review. 69 i.e. 4537 notices/notifications served in 2003 plus 217 notices relating to land within LOD/LLAU and 41 notifications relating to affected property. The total does not include notices left out of account for the reasons explained in paragraphs D, E and F of the review. It also omits the notices served in 2004. 70 i.e. 4537 notices/notifications served in 2003 plus 217 notices relating to land within LOD/LLAU and 41 notifications relating to affected property. The total does not include notices left out of account for the reasons explained in paragraphs D, E and F of the review. It also omits the notices served in 2004. 71 e.g. Scottish Parliament: the Bill for the Stirling-Alloa-Kincardine Railway and Linked Improvements Act 2004; Westminster Parliament: the Bill for the Channel Tunnel Rail Link Act 1996 and the current Crossrail Bill to authorise the London Crossrail (both hybrid Bills); Transport and Works Act Orders: West Coast Main Line upgrade and Midland Metro. 72 Edinburgh Tram (Line Two) Bill Committee, Preliminary Stage Report on the Edinburgh Tram (Line Two) Bill, 1st Report, 2005 (Session 2), paras. 171. 73 Waverley Railway (Scotland) Bill Committee, Scottish Parliament Official Report, 21 March 2005, column 289 74 A file is set up for each Party with a potentially notifiable interest. The file contains a record of all enquiries made and communications with the Party. 75 The exception to this was the case where reasonable enquiry failed to disclose any owner or lessee of unoccupied land on which there was no building to which letters could be delivered. In the absence of anyone to whom notification could be given, there was no means of serving any notice or notification because there was no delivery point on the land and (unlike other similar procedures e.g. at Westminster) the Standing Orders do not make provision for notice to be affixed to the land. Without such provision the fixing of notice on land would be a trespass. The result was that nothing could be served in respect of this land. 76 To be sent under separate cover
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