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SP Paper 761

 

1st Report, 2007 (Session 2)

CONTENTS

VOLUME 1: REPORT

REMIT AND MEMBERSHIP

REPORT

Background

Legislation
Role of the Parliament

Evidence

Otters
Bats
Great Crested Newts

Compliance and Enforcement of Mitigation
Scottish Natural Heritage

Otters
Bats
Great Crested Newts

Scottish Executive Environment and Rural Affairs Department
Conclusion and recommendation

VOLUME 2: MINUTES

12 February 2007
1 March 2007

VOLUME 3: ORAL EVIDENCE

Official Report, 12 February 2007
Official Report, 1 March 2007

VOLUME 4: WRITTEN EVIDENCE

SNH advice on EPS 16 November 2006
SNH advice on EPS 24 January 2007
Promoter on EPS
Scottish Executive on EPS

Remit and membership

Remit:

To consider and report to the Parliament on the Airdrie-Bathgate Railway and Linked Improvements Bill.

Membership:

Phil Gallie (Convener)
Janis Hughes
Alasdair Morgan (Deputy Convener)
Cathy Peattie
Jeremy Purvis

Committee Clerking Team:

Clerk to the Committee
Fergus D Cochrane

Support Manager
Stephen Fricker

Committee Assistant
Joanna Tod

Report on the Airdrie-Bathgate Railway and Linked Improvements Bill and European Protected Species

The Committee reports to the Parliament as follows— 

Background

1.The Airdrie-Bathgate Railway and Linked Improvements Bill has been introduced into the Parliament by the promoter, Network Rail, to— 

‘authorise the construction of new railways between Drumgelloch and Bathgate, including new stations at Caldercruix and Armadale; to authorise the use of land for relocated stations at Drumgelloch and Bathgate; to authorise related improvements to the existing railways between Airdrie and Drumgelloch and Bathgate and Edinburgh; to regularise the operation of certain enactments relating to the existing railway affected by the works so authorised; and for connected purposes.’1 

2. Details of the background to the Bill can be found in our Preliminary2 and Consideration Stage reports. The Consideration Stage report3 is being published alongside this report. The promoter’s Environmental Statement4 sets out the promoter’s assessment of the environmental impact of the railway in terms of disturbance to people and the environment. Section 10 of that document refers to the issue of European Protected Species (EPS).

3. In the course of our Preliminary Stage proceedings evidence was received from Scottish Natural Heritage (SNH)5 on this matter. It sought reassurance that mitigation measures contained in the Code of Construction Practice (CoCP) would be enforced6. The purpose of the CoCP is to identify the actions the promoter will require contractors and sub-contractors to take during the construction phase of the railway to minimise the environmental and other impacts e.g. construction noise, dust pollution, disposal of waste material. The latest version of the CoCP is that dated 4 February 2007. However, as stated in our Consideration Stage report7, a further version is to be submitted by the promoter by 12 March 2007. That version will reflect further amendments identified by this Committee, SEPA, SNH and North Lanarkshire and West Lothian councils. Further consideration of the CoCP is set out in our Consideration Stage report8.

4. Where it is proposed to carry out work which will affect EPS or their shelter/breeding place, whether or not they are present in those refuges, a licence is required from the licensing authority (the Scottish Executive)9.

5. Any licence the promoter seeks to obtain in relation to the affected species will be sought outwith the Private Bill process. However the promoter acknowledges that the Scottish Parliament may not be able to pass the Bill without the knowledge that such licences will, in principle, be obtained.

6. Consideration of how EPS are affected must be included as part of the consent process, not as an issue to be dealt with at a later stage. Any consent given without due consideration to these species is likely to breach European Directives with the possibility of consequential delays or the project being halted by the EC, as has happened elsewhere.

7. This report details our findings in relation to the impact of constructing the proposed line on any such species and the likelihood of the promoter obtaining the necessary licences for any such impact.

Legislation
8. The Wildlife and Countryside Act 1981 and the Nature Conservation (Scotland) Act 2004 provide protection for certain animal and plant species. 

9. Some of these species are further protected as ‘European Protected Species’ under the Habitats Directive - EC Directive 92/43/EEC (which is transposed into Scots law by virtue of the Conservation (Natural Habitats, &c) Regulations 1994 10 (“the Habitats Regulations”).

10.  This means it is illegal to—

  • deliberately or recklessly kill, injure, disturb or capture/take European Protected Species of animal;
  • damage or destroy the breeding sites or resting places of such animals11 

11. Three tests must be satisfied before the licensing authority can issue a license under regulation 44(2) of the Habitats Regulations so as to permit otherwise prohibited acts. An application will fail unless all of the three tests are satisfied.

12. The three tests involve the following considerations—

  • Test 1: The licence application must demonstrably relate to one of the purposes specified in regulation 44(2). This regulation states that licences may be granted by the Scottish Executive where the activities to be carried out under any proposed licence are for the purpose of “preserving public health or public safety or other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment.”
  • Test 2: Regulation 44(3)(a) states that a licence may not be granted unless the Scottish Executive is satisfied “that there is no satisfactory alternative”.
  • Test 3: Regulation 44(3)(b) states that a licence cannot be granted unless the Scottish Executive is satisfied “that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range” (The Scottish Executive will, however, seek the expert advice of SNH on this matter)12

Role of the Parliament
13. If this was a scheme being considered by the local planning authority for the grant of planning permission it would be required, in the exercise of its functions, to have regard to the Habitats Directive and the Habitats Regulations. In that regard, the local planning authority would also have regard to the Scottish Executive Guidance on European Protected Species, Development Sites and the Planning System

14. The proposed works authorised by the Bill will be permitted development (if enacted the Bill will effectively grant planning permission for the works). In the light of this, as the Parliament is effectively taking on a similar role to that of the local planning authority, it requires, in the exercise of its functions, to have regard to those exact same matters as any local planning authority at this stage of the process. Regulation 3(4) of the Habitats Regulations provides that the Scottish Parliament is a competent authority for the purposes of the Regulations. The Parliament is therefore required, in the exercise of any of its functions (here these functions are the consideration and approval of the Bill), to have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.

15. That being the case, the Parliament requires to take account of the Guidance (as well as the Habitats Directive and the Habitats Regulations) referred to above. Paragraph 28 of the Guidance identifies what the requirements in regulation 3(4) of the Habitats Regulations translate into. It provides that—

‘….it is important for planning authorities, in considering any application for planning permission… to address, inter alia, the following questions—

  • Are EPS present on the site for which planning permission has been sought?
  • If EPS are present, what implications do the proposals for the site have for the species in question? In particular, are the proposals for the site likely to lead to any action or overall outcome which would be contrary to regulation 39 or 43, or which would otherwise conflict with obligations arising under Articles 12 or 13 of the Directive?
  • In the event that potentially negative effects are evident, to what extent can these be prevented by either a voluntary alteration of the project design or by appropriate conditions attached to any grant of planning permission?
  • If negative effects are likely and cannot be prevented by planning conditions, does the planning authority consider that the proposed development is likely to meet the first two of the three tests prescribed in Regulation 44 (which derive from Article 16 of the Directive)?
  • In essence, does the planning authority believe that the development is (a) necessary for one of the purposes contained in regulation 44(2) and Article 16 (most usually, for preserving public health or public safety or for some other imperative reason of overriding public interest), and (b) that there is no satisfactory alternative to derogating from the Directive?
  • Finally, if EPS are present, planning authorities will also wish to seek advice from SNH on the likely consequences of any proposed development for favourable conservation status. This is the third test prescribed in the Directive and the 1994 Regulations. A development which had a negative impact on the maintenance of the population of the species concerned at a favourable conservation status in its natural range would be in breach of the Directive. The granting of planning permission would therefore be in conflict with the duty placed on the planning authorities by regulation 3(4) of the Habitats Regulations’.

16. Effectively, this meant that we were required to address these questions during Consideration Stage. We were required to reach a view on these matters, that the three tests necessary for the eventual grant of a regulation 44 licence are likely to be met, and to report accordingly to the Parliament before Final Stage.

Evidence
17. Annex IV of the Directive lists those species that are of European interest and in need of strict protection. Amongst these species are bats, otters and great crested newts. It is on these species that evidence was submitted. 

18. We requested further evidence from the promoter, SNH and the Scottish Executive. 

19. In its letter of 20 December 200613 to the Committee the promoter addressed the first two of the three licensing tests set out above.

20. The promoter considers that it has met the requirements of Test 1 in its evidence to us at Preliminary Stage on the general principles of the Bill. The general principles include facilitating economic growth through increased connectivity, enhancing social inclusion through enhanced public transport opportunities, and a public transport alternative to the M8 thus reducing road congestion and environmental impacts. The promoter concludes that the Airdrie-Bathgate rail link does demonstrate to be an imperative reason of overriding public interest, which includes those of a social and economic nature and is of beneficial consequence of primary importance for the environment.

21. We reported at Preliminary Stage that we supported the general principles of the Bill14. The Parliament then debated, on 23 November 200615, the Committee’s report as part of its Preliminary Stage debate and agreed, by a majority, that the general principles be agreed.

22. In considering the evidence on Test 2, we note the promoter’s evidence that this test contains two aspects: consideration of alternatives to the Airdrie-Bathgate rail link and route alignment justification.

23. The Promoter’s Memorandum16, one of the Bill accompanying documents, sets out the consideration by the promoter of alternative scheme and route alignments. Broadly, scheme alternatives (e.g. enhancement of bus and existing rail services) were discounted as not achieving the projected environmental, safety, social and economic, accessibility and integration benefits that the Airdrie-Bathgate railway proposal will. Route alignment alternatives were discounted broadly on grounds of increased engineering costs and difficulty, greater environmental impact and land take as well as general railway design issues such as the use or replacement of existing bridges and structures.

24. The promoter therefore contends that the scheme and the alignment provided for in the Bill and its accompanying documents has no satisfactory alternative and therefore meets Test 2.

Otters
25. We note that the promoter has undertaken surveys on all watercourses impacted by the rail link to determine the status of otters within the area. These surveys identified that otters were present in the vicinity of the project and that the project has the potential to impact on otters at two sites—

  • disturbance and loss of cover at active holts and resting areas on the North Calder Water, Caldercruix; and
  • loss of an active holt at Hillend Reservoir 

26. To mitigate these impacts the promoter has committed to build an artificial holt on the North Calder Water along with other measures, for example creating a special ‘otter underpass’, at Caldercruix. Similarly, at Hillend Reservoir where a holt will be destroyed an artificial holt will be constructed (before works to destroy the current holt commence). Further an otter monitoring programme, following a methodology agreed with SNH will be undertaken. 

27. The promoter contends that the mitigation measures it has proposed for otters will enable it to meet the requirements of Test 3 and it is therefore considered likely that the Scottish Executive Environment and Rural Affairs Department will grant it an EPS licence in relation to its potential impact on otters.

Bats
28. In its written evidence to us, the promoter noted that through a medium of extensive research, including national databases, there was a single field recording of foraging Soprano Pipistrelle bats.  Three other species are known from the wider corridor but were not detected in proximity to the line. It was also noted that potential roost sites were absent, or those that did exist, mainly in the form of bridges were well maintained offering little opportunity for roosts.

29. As a result, the promoter contends that, at this stage, no EPS licence for bats would be necessary, but due to their protected status advice would be included in the CoCP regarding appropriate procedures to be applied on encountering bats during construction.

Great Crested Newts
30. The promoter noted in its written evidence that the great crested newt is known from three locations adjacent to the existing Bathgate-Waverley station live railway line. The proposal for this section is electrification and careful selection of work compounds and storage areas has avoided any potential impacts on these sites.

31. The promoter is confident there will be no breach of Regulation 39 and no known need for a licence to be issued for this species. It will, however continue to monitor these sites for the duration of the project, with advice from SNH.

Compliance and Enforcement of Mitigation
32. In oral evidence on 12 February 200717, the promoter committed to ensuring that adequate project management and training would be in place, especially where legal compliance is required with regard to protected species. 

33. It was stated that the promoter is currently responsible for line-side management of up to 330 sites of special scientific interest throughout the UK. These sites are managed in co-operation with the relevant statutory authority. This is complemented by a biodiversity action plan, and a special plan for the west of Scotland, within which there are species action plans and habitat action plans.

34. The promoter further stated in oral evidence that it was happy with the conditions in the recent Edinburgh Airport Rail Link Bill being applied to this Bill but made the point that Network Rail has—

“the competence and expertise that are necessary to ensure compliance on its own behalf”.

35. The promoter did not see the need for an independent environmental clerk of works. Broadly, this post would be created by either North Lanarkshire or West Lothian council specifically to check and monitor the construction works to ensure compliance with the promised environmental mitigation (including the CoCP) and other relevant legislation
The Committee has reached a different conclusion from that of the promoter on the need for a post of this nature. We will amend the Bill at phase two of Consideration Stage to provide for an environmental clerk of works post and we report on this in our Consideration Stage report18.

37. As we report in our Consideration Stage report, we have identified and secured substantial improvements to the CoCP, for example, communication and engagement with local communities, both local authorities, SEPA and SNH on mitigating environmental impacts during the construction phase and the construction hours of working. We also state our intention to make compliance with the CoCP a statutory requirement through the Bill thereby giving it a statutory backing. This we will do at phase two of Consideration Stage. This amendment, we consider, addresses specific concerns of SNH regarding enforcement and monitoring of the CoCP19

Scottish Natural Heritage
38. In considering whether the works undertaken by the promoter to address any impact on otters, bats and great crested newts was likely to be sufficient to meet the EPS licensing requirements, we sought the views of SNH. 

39. We note the written and oral evidence of SNH regarding Test 3 on the EPS licensing requirement. In written evidence20, SNH explained that the conservation status of a species will be taken as ‘favourable’ when:

  • population dynamics data on the species concerned indicate that it is maintaining itself on a long term basis as a viable component of its natural habitats, and
  • the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and
  • there is, and will probably continue to be, a sufficiently large habitat to maintain its population on a long term basis.

Otters
40. In this context SNH explained that the otter can be seen as a success story in Scotland with otters present in every 10km2. SNH considered the favourable conservation status of otters at a local, national and European level in conjunction with the mitigation measures within the promoter’s CoCP and written evidence of 20 December 2006. As a result, with the proposed disturbance and mitigation, it is likely that the favourable conservation status of otters will not be detrimentally affected in the long term. SNH then conclude that the 3rd test can be satisfied.

41. This conclusion is however subject to the appropriate mitigation and enforcement of this mitigation being assured. We report on this above.

42. To achieve this, SNH felt that greater clarity and emphasis was required in the CoCP and strongly recommended the addition of a new section to the CoCP detailing, amongst other things, the precise locations where EPS licences would be required, and licensing arrangements. Included in its concerns was the view that an independent environmental clerk of works be appointed, to ensure adequate consideration of EPS issues during design and construction phases.

43. Further to this, following the submission of the draft CoCP on 4 February 2007, SNH sought further clarification on section 12.4 – primarily, who will make the licence application and when?

44. SNH identified a number of areas where it felt the Bill should be amended and felt it imperative that the approach of this Committee followed that of previous Private Bill Committees, most noticeably the most recent Edinburgh Airport Rail Link Bill.
Insofar as they had not had sight of any proposed amendments, SNH confirmed that it would be happy for conditions and amendments applied to that Bill, to be applied also to the Airdrie-Bathgate Railway and Linked Improvements Bill21.

Bats
46. In written evidence, SNH noted that no bat roosts have been identified during the survey work. It is therefore satisfied that currently no disturbance is likely and concurs with the promoter that at present no licence will be required.
SNH notes that if however, as a result of pre construction surveys, bat roosts are identified then a licence may be required. This has been acknowledged within the promoter’s CoCP22. 

Great Crested Newts
48. SNH is content with the response of the promoter and to assist the promoter in its continuing monitoring of populations for the duration of the project.

Scottish Executive Environment and Rural Affairs Department
49. Before reaching a view, we submitted to SEERAD (who consider EPS licence requests on behalf of Scottish Ministers) copies of the written evidence received from the promoter and SNH. We sought the views of SEERAD as to whether, at this stage, the promoter has met the three tests required for licensing disturbance to otters and that it was likely that it would grant the promoter an EPS licence. 

50. In its response, SEERAD conclude that it does not see any serious obstacles to the granting of a licence. In this regard it would concur with the views of SNH that—

  • the favourable conservation status of otters in the area is unlikely to be affected, subject to acceptance by the promoter of the proposals of SNH on appropriate disturbance and mitigation measures;
  • while recognising that no bat roosts or great crested newts have been identified in survey work to date, normal continuous survey work is appropriate before construction work proceeds. Any bat roosts or great crested newts found during that period would then be subject to the Scottish Executive’s normal licensing procedures. 

51. SEERAD expresses support for the views of SNH that delivery and enforcement of mitigation measures proposed by the promoter should be undertaken through an appropriate amendment to the Bill. It also supports the view that an environmental clerk of works be appointed.

Conclusion and recommendation
52. In conclusion, the Committee—

  • accepts the advice of SNH and SEERAD in relation to the ability of the promoter to meet the EPS licensing requirements for disturbance to otters;
  • notes that, at this stage, no EPS licence is required in relation to bats and great crested newts;
  • is content that the amendments it will make to the Bill at Consideration Stage, along with the amendments already made to the promoter’s Code of Construction Practice, will provide appropriate controls to secure delivery and enforcement of any required environmental mitigation measures, including the CoCP itself;
  • recommends that the Parliament should agree that, in the light of the amendments that will be made by this Committee at Consideration Stage in respect of European Protected Species, the construction of the Airdrie-Bathgate railway and linked improvements project will not affect the favourable conservation status of otters.

Footnotes:

3 Airdrie-Bathgate Railway and Linked Improvements Bill Committee, 2nd Report, 2007: Consideration Stage Report on the Airdrie-Bathgate Railway and Linked Improvements Bill

7 Consideration Stage report, paragraph 89

8 Consideration Stage report, paragraphs 53-90

9 In terms of regulation 44(4)(b) of the Conservation (Natural Habitats &c) Regulations 1994 SI 2716, the appropriate authority in relation to a licence under regulation 44(2)(e) is the Agriculture Minister.  Agriculture Minister is defined in regulation 2(1) as being the Minister for Agriculture, Fisheries and Food or the Secretary of State. In terms of section 53(1) of the Scotland Act 1998 (the 1998 Act), any functions of MAFF or the Secretary of State are, so far as within devolved competence, transferred to the Scottish Ministers

11 Regulation 39 of the Habitats Regulations

12  Regulation 44(5) provides that the Agriculture Minister (now the Scottish Ministers in terms of the 1998 Act) shall from time to time consult with the nature conservation bodies (defined in regulation 4 as SNH in relation to Scotland) as to the exercise of their functions under this regulation; and they shall not grant a licence of any description unless they have been advised by SNH as to the circumstances in which, in their opinion, licenses of that description should be granted. Further, paragraph 24 of the guidance states that in relation to test 3 this is a matter on which expert advice will be sought by the Scottish Ministers from SNH.

18 Airdrie-Bathgate Railway and Linked Improvements Bill Committee, 2nd Report, 2007: Consideration Stage Report on the Airdrie-Bathgate Railway and Linked Improvements Bill, paragraphs 72-78