GROUP 28 – OBJECTION NO: 149

CALA MANAGEMENT LTD

PROMOTER WITNESS STATEMENT

RAHUL BIJLANI

1 Resume

1.1 I am Rahul W Bijlani. I am a lawyer with Bircham Dyson Bell, Solicitors and Parliamentary Agents who drafted the Edinburgh Tram (Line One) Bill. I am a qualified barrister with 6 years experience in major projects work, including planning, compulsory purchase and compensation issues, and I have particular experience of transport projects. At Bircham Dyson Bell I have worked on a number of light rail and tram schemes in England, as well as being involved in the Edinburgh Tram project since its inception.

2 Scope of Evidence

2.1 My evidence addresses:

(a) whether the acquisition of the objector’s land by use of the powers contained in the Bill infringes the objector’s rights under the ECHR, in particular Article 1 of the First Protocol;

(b) whether the use of the private Bill process unfairly removes the objector’s statutory rights to object to the application for various consents, including planning permission, listed buildings consent and consent to stop up and interfere with roads; and

(c) whether the use of the private Bill process unfairly removes the objector’s common law right to claim in respect of any nuisance suffered.

3 Acquisition of land by use of powers under the Bill infringes the objectors rights under the ECHR and in particular Article 1 of the First Protocol

3.1 The objector contends that the acquisition of property rights under the Bill is not compatible with the European Convention on Human Rights and Fundamental Freedoms (ECHR), and in particular Article 1.

3.2 The ECHR, added to over time by several ‘protocols’ and incorporated into UK law by the Human Rights Act 1998, sets out a series of rights some of which are absolute (i.e. a contracting state can never breach them) and some are qualified (i.e. there are allowable exceptions to the right).

3.3 Article 1 of the First Protocol (right to enjoyment of possessions) is heavily qualified. People can be deprived of their possessions in the public interest,

and the use of property can be controlled by the state in the general interest. Again, case law has further limited this. There is no guarantee of a particular quality of environment surrounding a property. A balance must be struck between the rights of the individual whose property is being interfered with, and the public or general interest (i.e. ‘proportionality’). As long as compensation that reasonably relates to the value of the property is paid, then there will not normally be a disproportionate interference with property rights.

3.4 The acquisition of land under Section 22 has a clear impact on human rights, as it constitutes a clear deprivation of possessions under Article 1 of the First Protocol.

3.5 However, it is the Promoter’s case that the acquisition of land is in the public or general interest as it will allow the tram line, which is intended to be in the public interest, to be built. The tram line represents a public transport project, promoted by a public body, The City of Edinburgh Council, acting in the public interest for Edinburgh. The tram line is consistent with national planning policy guidance, the development plan for Edinburgh and the Regional Transport Strategy produced by SESTRAN (a body of 10 local authorities covering the south east of Scotland). It is a policy of The City of Edinburgh Council’s Local Transport Strategy that the Council will work towards introducing a tram system to serve Edinburgh. Extensive public consultation has been carried out, which has shown a high level of support for the tram line. The need for the tram line and what the benefits of the tram line are likely to be has been considered in other evidence.

3.6 The procedure for acquisition is the same as in many other Acts of Parliament as is the assessment of compensation. Unless Scottish Ministers extend the period by order, the exercise of the rights of compulsory purchase contained within the Act must be commenced within five years of the passing of the Act , which is a standard period. The exercise of these powers is begun by the service of a “notice to treat”, which indicates that the undertaker intends to acquire the land and is offering to deal with the owner to agree compensation.

3.7 The power to acquire new rights in land under Section 23 is a lesser version of the acquisition of the whole land, and the powers contained in Sections 24-27 are lesser in impact still. The same arguments apply, except that the impact on the owner of the land is less.

3.8 The issue of compatibility with the ECHR has been considered during the drafting of the Bill, which was carried out by experienced Parliamentary Agents, and those provisions which might impact on private land interests follow precedents from existing legislation. Mitigation measures (set out in the Environmental Statement) have been identified to seek to reduce residual impacts of the tram line on private land interests and the Promoter, as a public body acting in the public interest for Edinburgh, is satisfied that the benefits of the tram line to Edinburgh as a whole sufficiently outweigh the individual interests affected.

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4 The use of the private Bill process removes the objector’s statutory rights to object to the application for various consents

4.1 The Promoter acknowledges that it could have sought planning consent (though, as I discuss at paragraph 4.5 below, private Acts are a special case under planning law), listed buildings consent, and various roads consents separately rather than under the private Bill process, and that by choosing to seek such consent as part of the private Bill process the objector has lost the opportunity it would otherwise have to object as part of those separate authorisation processes. However, the objector has the opportunity to raise objections on planning, roads or listed building issues as part of the private Bill process which, the Promoter submits, is the appropriate forum for consideration of such issues where a private Bill is being promoted.

4.2 It is both lawful, and standard practice to seek these additional powers and consents such as planning, listed buildings and roads consents together with the principal powers to construct, operate and maintain the works as part of the private Bill process.

4.3 This approach is not merely one of expedience: it has advantages for the Promoter, the Parliament as the authorising body, and those affected by the Bill. Firstly, it enables the Promoter to achieve all the principal authorisations it requires in one process. Secondly, it enables Parliament to consider the scheme as a whole, including planning, listed buildings and roads impacts, when deciding whether to authorise the construction and operation of the works. Thirdly, it enables those affected by the proposed works to have all their objections heard before one forum and to properly influence the authorising legislation.

4.4 Were the Promoter to seek only those powers to construct, operate and maintain the works by private Bill it would be faced with applications for one or more complex planning and listed buildings permissions and a number of Traffic Regulation Orders, stopping up orders and the like. This would be costly and time consuming to the Promoter.

4.5 Parliament would be asked to authorise the construction and operation of a tram scheme without assessing the planning implications, the implications on listed buildings or the precise impact on roads. Parliament would also be faced with the possibility of its will being thwarted if, once the Bill was enacted, the Promoter failed to achieve the required roads or other powers. Indeed, as regards planning consent, the general law recognises that private Acts have a special planning status. Under Part 11 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 any development specifically authorised by private Act is, subject to approval by the local planning authority of certain matters of detail, deemed to have planning permission. As regards planning, therefore, the Promoter is simply seeking to apply the general law.

4.6 Objectors could also be adversely affected were ancillary consents sought separately to the principal powers. This approach would effectively leave

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them the opportunity to object to much the detail of the scheme only once the principle had been established, possibly presenting them with what may appear to be a “fait accompli”. For example, If roads powers were not dealt with in the Bill there would be no opportunity for to object on the detail of roads closures as part of the private Bill process. In a subsequent TRO process, affected persons may find themselves objecting to a the stopping up of a road in which there already exists statutory authority for a tram to be constructed, necessitating that stopping up.

4.7 Finally, in relation to roads powers, whilst similar powers to those contained in the Bill exist under general roads legislation, these powers can generally only be exercised by the City of Edinburgh Council as roads authority. The powers contained in the Bill may be authorised directly by the authorised undertaker (which may not be the Council), enabling greater flexibility in the constructing and operating of the tram.

4.8 For these reasons the Promoter considers that it’s approach, which is the standard one, is appropriate.

5 The use of the private Bill process removes the objector’s common law right to claim in respect of any nuisance suffered

5.1 The Promoter acknowledges that the authorisation of the tram scheme by private Act will provide the Promoter with the defence of statutory authority against any actions for nuisance arising from the construction or operation (without negligence) of the authorised works. The Promoter submits that it is perfectly legitimate for this defence to apply in respect of public infrastructure projects such as the tram scheme. The operation of the Transport and Works Act 1992 (which institutes an order-making procedure to replace the private Bill process for transport infrastructure projects in England and Wales) maintains this principle, conferring the defence of statutory authority on authorised undertakers of approved schemes. The Railways Act 1993 confers this defence more generally on railway operators.

5.2 The Land Compensation (Scotland) Act 1973 makes provision for the payment (in certain circumstances) for the payment of compensation to landowners in respect of the diminution in value of their land by certain physical factors including noise, vibration, fumes, smoke and lighting, caused by the use of public works (i.e. works operated or used in pursuance of statutory powers) and the Promoter is not seeking to modify or exclude its liability under this Act. Moreover, the Promoter is applying a number of safeguards to minimise potential nuisance, as set out in the Environmental Statement, the Code of Construction Practice and the Noise Policy.

Rahul Bijlani Lawyer Bircham Dyson Bell 4 July 2005

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GROUP 28 – OBJECTION NO: 149 CALA MANAGEMENT LTD PROMOTER WITNESS STATEMENT

ANDREW OLDFIELD

Contents 1. Resume 2. Scope of Evidence 3. Siting and Justification of depot site

4. Conclusions 1. Resume 1.1 I am Andrew J Oldfield. I am a Divisional Director with Mott MacDonald and Project

Manager for the Technical Consultants, commissioned to examine the technical aspects of the project. I am a Chartered Engineer and a Member of the Institution of Civil Engineers. I have 20 years experience in Civil Engineering in Scotland.

1.2 I have been involved in transportation and infrastructure projects in Scotland over

the past 20 years including: Edinburgh Tram Line 1, Glasgow Cross Rail Link; Glasgow airport Rail Link; Edinburgh Tram, Strathclyde Tram Draft Provisional Order and major infrastructure projects including trunk roads; motorway improvements; ports; harbours; reservoirs and power stations.

2. Scope of Evidence 2.1 The evidence addresses:- Siting and Justification of depot site (i) Optioneering (ii) Need for specific land parcel 3. Siting and Justification of depot site. Optioneering 3.1 A maintenance depot is a fundamental requirement for the Line One tram scheme.

This facility allows routine maintenance to be carried out while providing safe stabling when the system is not in operation.

3.2 The key requirements for a depot in operational terms are that it must be: • secure; • accessible from the tram network (preferably adjacent to a passenger stop to enable crew changes to be made with minimal delay); • accessible by road for service vehicles; • accessible to staff by all modes of transport; • positioned on the network so as to minimise empty running as far as possible;

• sufficient in size to accommodate the planned fleet with space for later expansion. • sufficiently equipped for carrying routine maintenance and at least minor

repairs to the vehicles and some infrastructure (trackwork, drainage, OLE, signalling, stop equipment).

3.3 In urban environments, the choice of depot location will also be driven by the size, planning status and environmental suitability of available sites. To service the Line One Loop there would be a requirement for 14 light rail vehicles (LRVs) which allows two spare LRVs to cover breakdowns and facilitate maintenance. To accommodate this vehicle fleet it was estimated that a minimum site area of 1.4 hectares (3.5 acres) would be required. The actual required area depends on the configuration of the site, with a rectangular site whose length and breadth are in a ratio of 2:1 to each other being the preferred configuration.

3.4 As part of the North Edinburgh Rapid Transit (NERTS) study undertaken for Waterfront Edinburgh Limited, a broad assessment of 23 potential sites was carried out. This assessment identified three sites worthy of further consideration. The first site named the fire hazard training ground off Ferry Road has an area of 1.4 hectares. This site was discounted because it has a long narrow configuration which precludes allowing any turning facilities for vehicles and reduces the flexibility of stabling arrangements. The other two of the short listed sites were identified, adjacent to Constitution Street, near the entrance to the Port of Leith. In order to accommodate the tram fleet, depot buildings and infrastructure it was found to be necessary to combine the two sites to form the area shown in Figure 1. The sites are currently used as a lorry park, a steel pipe storage area and a concrete batching plant and totals 3.0 hectares.

Figure 1: Location of proposed depot site

3.5 In order to provide some context to the choice of site we would point out that this land is shown in the North East Edinburgh Local Plan [adopted by resolution of the City of Edinburgh Council on 30 April 1998] as part of a parcel of land designated as land for “…industry/business: mainly industrial/business areas to be retained primarily in industrial, office and warehouse uses…” It is my understanding that a tram depot falls within this class of use. I also understand that the City Council Planning and Strategy Department accepted this potential land use and have indicated it, as such, in the amendments to the North East Edinburgh Master Plan.

Need for specific land parcel

3.6 I confirm that the area of land indicated on the parliamentary plans will be required to accommodate the tram fleet and depot infrastructure for Edinburgh Tram Line 1.

3.7 In addition, at the proposed western access, the tramline will be pulled off street into the Cala site and a delta junction incorporated (Figure 2). This minimises the disruption that trams arriving and leaving the depot may generate on other Constitution Street traffic and also keeps all the point mechanisms out of the path of tyred vehicles, cyclists and pedestrians. The delta junction also improves the amount of pedestrian space available within Constitution Street improving the North-South access facility.

Increased opportunity for pedestrian facility within Constitution

Street

Figure 2: Delta Junction into the de

3.8 In the short term it is proposed to use

compound. My colleague Scott McIntosh aspects of the land use if required.

4. Conclusion

4.1 The promoter is satisfied with the adequacy

4.2 I confirm that the area of land identified on for the proposed depot.

4.3 I agree that the proposed depot site impactsite.

Delta junction for depot located withinboundary of depot

pot from Constitution Street

the depot site as a construction can provide further detail on this

of the site selection process.

the parliamentary plans is required

s upon the objector’s development

Andrew Oldfield Divisional Director Mott MacDonald 4 July 2005

GROUP 28 – OBJECTION NO: 149 CALA MANAGEMENT LTD PROMOTER WITNESS STATEMENT

ARCHIE RINTOUL 1 QUALIFICATIONS 1.1 I am Archibald Brown Rintoul, a Member of the Royal Institution of Chartered

Surveyors (RICS). I am also a Member of the RICS Scotland Valuation Faculty Board.

1.2 I am at present the District Valuer in charge of Scotland South East Valuation

Office with overall responsibility for all valuations and property advice provided by a team of 12 Valuers, plus Technical and Support Staff, covering an area extending from the Scottish Borders to the south, to Perthshire in the north and Stirlingshire to the west.

1.3 I have 30 years experience in valuation, working in Edinburgh for most of the

last 17 years. I have been involved in Compensation and Compulsory Purchase throughout the whole of my working life, much of my work in the early years involving acquisitions of houses and businesses as part of the comprehensive redevelopment of large areas of Glasgow. I have continued this work throughout my career, much of my recent experience being in acquisitions for Road Schemes on behalf of the Scottish Executive and Local Authorities. I have also appeared as Expert Witness at Lands Tribunal and other Hearings.

1.4 I have provided consultancy advice on the Edinburgh Tramline 1 and 2 (ETL

1 and ETL 2) projects since 2003. 2 EVIDENCE 2.1 My evidence covers the principles underlying the ascertainment of

compensation to claimants affected by the scheme which are: 2.1.1 In cases where land is acquired, compensation is payable for the

value of the subjects acquired, reduction in value of any contiguous or adjacent subjects owned by the claimant, and compensation for disturbance, including items such as removals, loss of profits (in the case of a business) and any other loss directly attributable to the scheme, all in terms of the Compensation (Scotland) Act 1963.

2.1.2 In cases where no land is required, compensation is payable for

reduction in value caused by the physical factors associated with the scheme, in terms of Part 1 of the Land Compensation (Scotland) Act 1973, as amended.

Archie Rintoul District Valuer 4 July 2005

GROUP 28 – OBJECTION NO: 149 CALA MANAGEMENT LTD PROMOTER WITNESS STATEMENT

KEVIN MURRAY 1 Resume 1.1 I am Kevin A Murray. I am a Project Manager with tie ltd assigned to

project manage the development of Edinburgh Tram Line One. I am a Chartered Engineer and a Member of the Institution of Civil Engineers. I have around 14 years experience in civil engineering, all of which has been spent in the management, development, and implementation of transportation projects including the Jubilee Line Extension, Crossrail, Channel Tunnel Rail Link and Thameslink 2000.

2 Scope of Evidence 2.1 My evidence relates to the guidance that the City of Edinburgh Council

has issued in relation to the purchase of a whole property where only part is proposed for permanent acquisition.

Issue: Purchase of the whole property

1 City of Edinburgh Council's practice for determining when an entire site should be purchased

3 Evidence 3.1 The Guide to Compensation and Compulsory Purchase Procedures

produced by tie and approved for issue by the City of Edinburgh Council, provides guidance to objectors on this matter. In particular, it refers to the additional compensation that the owner may be entitled to claim where the value of the remainder of the land is adversely affected.

Kevin Murray Project Manager tie ltd 04 July 2005

GROUP 28 – OBJECTION NO: 149

CALA MANAGEMENT LTD

PROMOTER DOCUMENT LIST

The following documents (in hard copy) may be referred to during the Committee meetings —

1 North Edinburgh Rapid Transit Study (NERTS)

2 North East Edinburgh Local Plan

3 North East Edinburgh Master Plan

4 Environmental Statement

http://www.scottish.parliament.uk/business/bills/17-edinburghTram1/index.htm

5 Code of Construction Practice

6 Noise and Vibration Policy

http://tt.tiedinburgh.co.uk/downloads/apr05/noise+vibration(Mar05).pdf

7 Guide to Compensation & Compulsory Purchase Procedures

http://tt.tiedinburgh.co.uk/downloads/apr05/guide_to_CPO+Compensation(Apr05).pdf

http://tt.tiedinburgh.co.uk/downloads/apr05/flowchart_for_compensation(Apr05).pdf

E-copy available from Private Bills Unit.