PROM (P) 1A EDINBURGH AIRPORT RAIL LINK BILL COMMITTEE PROMOTER’S RESPONSE TO COMMITTEE QUESTIONS The purpose of this paper is to provide the Committee with the Promoter's response to the Clerk to the Committee's letter dated 19 April 2006. Using the specific headings contained within the Annex to that letter, the Promoter has set out each of the Committee's questions in bold and supplied the Promoter’s response thereafter. ANNEXE A: SUGGESTED QUESTIONS ON GENERAL PRINCIPLES Questions on the Bill’s provisions ECHR 1. Can the promoter explain how it has satisfied itself that the approach taken to private land interest is consistent with the requirements of article 1 of protocol 1 and article 8 of the ECHR?
Promoter’s Response 1. The Promoter appreciates that it is necessary for the Scottish Parliament to consider the human rights implications of this Bill in light of the requirement under the Scotland Act for the Parliament to legislate in a manner consistent with the European Convention on Human Rights (ECHR)1 and the requirements of the Human Rights Act 1998 by which the Parliament is also bound. As a company wholly owned by the City of Edinburgh Council, the Promoter, tie Limited, is a public authority for the purposes of the Human Rights Act and must therefore ensure that it complies with the Human Rights Act and the Convention Rights as set out in that Act. 2. The Promoter has carried out an assessment of the EARL Scheme (“the Scheme”) in terms of the potential impact on the human rights of those whose property and other interests may be affected. The Promoter has obtained legal advice on the ECHR implications of the Scheme and has satisfied itself that the Scheme is consistent with the ECHR, in particular with the rights protected by article 1 of protocol 1 and article 8. 3. The rights contained in article 1 of protocol 1 and article 8 are qualified rights, rather than absolute rights. Qualified rights are Convention Rights whose application can be qualified in line with particular criteria. For qualifications to be acceptable, the qualification to be applied must: (a) (b)
have a basis in law; be “necessary” in a democratic society; and
Human Rights Act 1998, Section 6
be proportionate to the aim which it seeks to achieve.
4. This means that, in circumstances where a Convention Right is interfered with, the interference does not constitute a breach of the Convention Right provided that the interference meets with the qualification criteria under the Convention. 5. The Promoter has sought to ensure that ECHR issues concerning article 1 of protocol 1 and article 8 were taken account of at an early stage and in advance of Bill preparation. Article 1 of Protocol 1 Article 1 of Protocol 1 states that: “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 subject to the conditions provided for by law and by the general principles of international law. The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties.” 6. In undertaking its assessment of the impact of the Scheme on Convention rights, the Promoter recognised that article 1 of protocol 1 starts from the premise that everyone is entitled to the peaceful enjoyment of their possessions (rule1), that a person should not be deprived of their possessions except in the public interest (rule 2) and that the State maintains the right to control the use of property in line with the general interest (rule 3). The right to the peaceful enjoyment of possessions is significantly qualified under ECHR jurisprudence.2 The term “possessions” covers a variety of property rights, including, in the context of the Scheme, the property rights of those who may be adversely affected by the Scheme. It should be noted that this Article cannot be interpreted as providing a guarantee of any particular quality of environment surrounding a particular property. 7. In deciding whether there has been an interference with the right protected by this Article, a State is afforded and wide “margin of appreciation” (latitude) in determining what constitutes the general interest. Application of this Article is therefore concerned with issues of lawfulness and legitimacy of the State actions and issues of proportionality. Whilst compulsory purchase inevitably has an impact on property rights, the Promoter is seeking to introduce the Scheme in line with the wider general interest as set out in the documents which accompany this Bill.3 The Bill implements existing legislation
Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35 Promoter’s Memorandum, Explanatory Notes, and Environmental Statement and relative documents referred to.
and compensation on the same basis as any other compulsory purchase in Scotland. 8. In addition, the Promoter has taken steps to ensure that provisions relating to blighted land have been included in the Bill, contained in Section 44. The Promoter has also taken steps to ensure that the provisions relating to land which the authorised undertaker considers to be surplus to requirements are dealt with under existing provisions– the Crichel Down Rules.4 This means that the Bill is subject to all the same procedural rules, safeguards and requirements regarding compensation as apply generally.5 The Promoter has placed a restriction on the compulsory purchase or temporary possession of operational airport land so as to ensure that Edinburgh Airport Limited may make requirements for the safe operation of the airport undertaking.6 9. In respect of proportionality, the Scheme involves the construction of new railway lines or “chords” leading to a new subsurface station at Edinburgh airport. EARL will connect to the existing Edinburgh-Glasgow railway line, Edinburgh-Fife railway line and Fife-Glasgow railway line. The new lines will offer services to Edinburgh airport from towns and cities throughout Scotland and beyond, including Fife, Aberdeen, Inverness, Dunblane, Glasgow, Edinburgh and the south and the opportunity to change between these services and the proposed tram service at Edinburgh airport. The main features of the scheme which include the provision of 14 kilometres of new rail routes and junctions and 6 kilometres of upgraded railway, are detailed in the documents produced by the Promoter.7 The Scheme will permit most major Scottish cities to be directly linked to Edinburgh airport.8 The Promoter has tried so far as possible to limit the potential impact on land use. 10. Alternatives to the Scheme have been considered by the Promoter but have been discounted as not being able to meet all of the objectives of the Scheme.9 There are a number of private land interests affected by the Bill which relate to scheduled and ancillary works, safeguarding works, power to acquire land permanently, acquisition of rights, temporary use of land, stopping up of roads both permanently and temporarily, construction works, extinction or suspension of rights of way, power of entry on land, powers to fell trees/shrubs etc.10 The protection of section 45 relating to surplus land is included in the Bill, thereby including standard public sector best practice as laid down by guidelines in Scottish Development Department Circular 38 of 1992.
See s45 See Explanatory Notes paragraphs 70-167 6 Section 34 and the Explanatory Notes paragraphs 165-167 7 See the Parliamentary Plans and Sections, the Promoter’s Memorandum paragraphs 20 to 21, the Environmental Statement Section 2, and the Non-Technical Summary paragraph 4 – Description of the Scheme 8 See the Environmental Statement, Non Technical Summary paragraph 5 9 See Promoter’s Memorandum paragraph 57-14 10 Refer to sections 2, 3, 15, 16, 17, 18, 20, 13&9, 26-28, 35 and Schedules 1, 2, 3, 4, 5, 6, and 8
11. The Promoter has sought to strike a balance between the rights of individuals and the need to construct the railway when considering design issues and their subsequent impact on land take and private land interests generally, to ensure proportionality. Only land which is necessary for the construction or operation of the Scheme is to be taken either permanently or used temporarily. The limits which have been drawn for the Bill have been drawn as the minimum required to proceed with the Scheme. Land will only be taken if it is required for the purposes of the works permitted by the Bill. 12. As part of the general process in considering whether this Bill is in the public or general interest, the Promoter has gone through a number of consultative exercises which are specified in the Promoter’s Memorandum.11 On 30th June 2005, the Promoter published in draft the EARL Bill, plans, Promoter’s Memorandum and Environmental Statement (“the ES”). These were supplied to 33 core stakeholders which included public bodies, statutory bodies, utilities, designated libraries and emergency services. A further 422 parties were notified by letter of the draft publications. These further parties were owners of land either within the land limits required by the draft Bill or abutting these limits. 13. This process of early consultation exceeded both the Parliament’s requirements and the consultation methodology originally adopted by the Promoter. The Promoter supported this approach as it allowed interested parties to engage with the Promoter in advance of the Bill’s formal introduction. A number of changes were suggested by interested parties as a result of publication of the draft documents. A summary list of key suggested changes and the outcome is attached to the Promoter’s Memorandum.12 One example of this is that maintenance access has been redesigned to lessen impact on a Scottish Wildlife Trust managed area and the temporary diversion of the A8 has been modified to avoid impact on a private garden. Fourteen road accesses from private properties have been adjusted for landowners.13 In addition, the Promoter’s carried out a STAG 1 appraisal of the options for a new station at Turnhouse linking to Edinburgh Airport “The Turnhouse Option” which was highlighted during the consultation process. It was determined after appraisal that the Turnhouse options did not compare favourably with the Scheme in terms of government objectives. Further reference is made to this in the Promoter’s answer to question 53.14 15 14. Those affected by the Scheme will have an opportunity to object and have their views taken into account during the parliamentary process. However, as stated above, as a result of the early consultation process, many affected parties have already had the opportunity and have made comments on the proposed Bill to the Promoter. Account has been taken of those comments. The fact that the Scheme will be subject to parliamentary scrutiny
See Promoter’s Memorandum paragraphs 105-207 See the Promoter’s Memorandum, Appendices 3 and 5 13 see Promoter’s Memorandum paragraph 146 14 See Promoter’s Memorandum paragraphs 156-167 15 For detailed discussion of other consultations held with e.g. residents at Carlowrie see Promoter’s Memorandum paragraphs 168-176
ensures that the interests of those affected by the Bill will be taken into account. The consultation exercise generally ensures that the process is transparent and that individuals are given the opportunity to assess the proposals. The Promoter has undertaken an appraisal of the Scheme both in terms of meeting the policy objectives of the Scheme and has assessed the transport economic and wider economic benefits of the Scheme.16 15. The issues so far raised by those who will be affected by the Scheme which might fall within the category of Article 1 of Protocol 1 can broadly be stated as follows: (1) (2) Effect on property values Extent of land-take required17
16. The Bill adopts the same formula for authorisation, compulsory purchase and compensation as is the accepted norm for infrastructure projects throughout Great Britain. Where land is required temporarily the authorised undertaker is required to pay compensation for losses suffered by the landowner as the result of the temporary possession. In addition, before vacating the land the authorised undertaker must reinstate it to the landowner’s reasonable satisfaction. In addition, before vacating the land the authorised undertaker must reinstate it to the landowner’s reasonable satisfaction. As regards permanent land take, the Promoter has sought to keep this to the minimum possible. The authorised undertaker will be obliged to pay compensation representing the market value of the land. 17. In light of this the Promoter considers that the public/private interest balance is achieved as required by the ECHR. The Promoter considers that its approach of minimising land take together with provision of compensation in compliance with the existing legal framework ensures that the Scheme is consistent with Article 1 of Protocol 1 in terms of lawfulness, legitimacy and proportionality. Article 8 Article 8 states that: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 18. The Promoter understands that this Article starts from the premise that everyone has the right to respect for his or her private and family life, home
See Promoter’s Memorandum paragraphs 4-9 and 101-104 See Promoter’s Memorandum paragraphs 145 and 156
and correspondence. The Promoter as a responsible public body is aware that the State has a duty to protect this right in a positive way. Respect for the home can involve environmental issues which have a substantial impact on enjoyment of property, but does not cover issues such as compulsory purchase which are dealt with under Article 1 of Protocol 1. “Private life” includes the quality of life as affected by the amenities of the home.18 19. The Promoter is aware that the rights under Article 8(1) are qualified by certain allowable interferences under Article 8(2) and that a decision about what constitutes an interference turns on the facts of each case. The Promoter has assessed whether the environmental impact of the Scheme will be so substantial as to amount to an interference with Article 8(1) rights. That has included undertaking an environmental impact assessment of the Scheme in accordance with the Environmental Impact Assessment (Scotland) Regulations 1999 as amended. The approach to this assessment is explained in the ES. 20. The Promoter has considered whether the proposals contained in the Bill will have a direct effect on the amenity of anyone’s property. Through the ES, the Promoter has considered potential impacts which include impacts in terms of landscape and visual, transport, noise, air quality, ground quality and geology, water quality, ecology, archaeology and cultural heritage, together with cumulative impacts. Where an impact is identified, the ES assesses impacts on the basis that the authorised undertaker will implement the appropriate mitigation measures proposed.19 The Promoter intends that these mitigation measures will be taken and that the obligation to do this will be enforceable (see below). 21. The Bill provides that where there are residual impacts, as identified in the ES, they will employ all reasonably practicable means to ensure that the environmental impacts of the works authorised by the Bill are no worse than the residual impacts identified in the ES.20 Section 46 imposes this as a positive duty on the authorised undertaker so that the authorised undertaker has to provide the mitigation proposed in the ES.21 22. Where environmental issues are raised as a complaint that Article 8 rights are being interfered with then a complainant must show that there is serious environmental pollution which has a direct and harmful impact on the individual or his family. 23. A number of cases have dealt with this issue. The cases referred to below were successful in establishing a breach of Article 8 as there was proved to be a very serious risk to health. It is the Promoter’s position that the environmental impact of the Scheme cannot be said to have such a “serious”
Rayner v UK (1986) DR 47 5; 13728-88; Marcic v Thames Water Utilities Ltd  1 All ER 135 19 see Environmental Statement 20 “Residual Impacts” i.e. the environmental impacts of the Scheme after the proposed mitigation measures have been carried out. 21 see the Promoter’s Explanatory Notes paragraph 239
or “harmful” impact on any individual in the sense as understood by ECHR and accordingly, cannot be compared to these cases.22 24. The issues so far identified by the Promoter as relevant to human rights are land-take (this is dealt with in the comments on Article 1 of Protocol 1 above), noise and vibration, air quality, ecology, landscape and visual impact and construction impact. The Promoter has also identified a number of significant positive environmental impacts of the Scheme, particularly in relation to transport.23 25. The Promoter has undertaken assessment of the likely minimum and maximum levels of noise and vibration, landscape and visual impact assessment and other issues which are contained within the ES. As a responsible public body the Promoter will ensure that necessary mitigation measures will be undertaken and, in any event, there is a positive obligation on the authorised undertaker to do so as referred to above. 26. The way in which the works are constructed will have a significant effect on property and is, therefore, relevant to both the enjoyment of property (Article 1) and to its undisturbed use, which has a direct bearing on Article 8. 27. At the construction stage, impacts on property will be regulated by the code of construction practice (the first draft of which is annexed to the ES) and the noise and vibration policy. Again, the Promoter wishes these documents to have statutory force. Accordingly, at the Consideration Stage the Promoter will ask the Committee to add to the Bill a section requiring the authorised undertaker to use all reasonably practicable means to ensure that the authorised works are carried out in accordance with the Code of Construction Practice (“CoCP”) and the noise and vibration policy. 28. Further amendments will introduce procedures regarding the amendment of these documents. The basis of any amendments will be that they must not effect any reduction in the level of protection. 29. The measures outlined above will impose positive duties on the authorised undertaker. In order to ensure that these duties can be enforced, the Promoter will ask the Committee to add a section to the Bill providing for the environmental mitigation measures to be enforceable as if they were planning conditions. This will automatically apply all the enforcement measures permissible under the Town and Country Planning (Scotland) Act 1997. 30. Operational issues are outside the scope of the Bill. Operational issues such as the times of service are subject to regulation in accordance with the regulatory regime that applies to all railway operators by virtue of the Railways Act 1993. In respect of safety, the railway will be constructed to current standards and must be approved by HM Railways Inspectorate (“HMRI”), or
Lopez Ostra v Spain (1994) A303-C (1995) 20 EHRR 277; and Guerra v Italy (1998) 26 EHRR 357 23 Environmental Statement Non-Technical Summary para 12.3
its successor, before the operator can get a licence to operate it. In addition to the CoCP, the contractor retained to construct the works will (like any other contractor) be obliged to comply with all current Health and Safety Executive (HSE) requirements24 and guidelines.25 31. The European Court of Human Rights has had to deal with “environmental cases” concerning the issue of proportionality. One such case is noted below.26 Details of that case can be provided if required. In that case, in assessing proportionality, the European Court considered that Article 8 rights were permitted to be restricted in the interests of the economic wellbeing of the country and for the protection of the rights and freedoms of others. It was legitimate for the Government to have taken into consideration the economic interests of (in that case) the airline operators and other enterprises represented at Heathrow Airport as well as the economic interests of the country as a whole. A factor in assessing proportionality was the availability of measures to mitigate the effects of noise generally (in that case aircraft noise). The court determined that the Government had struck the correct balance between the affected individuals and the wider community. It is important to bear in mind that the court has determined that it is inappropriate to adopt a special approach to environmental protection by referring to a special status for “environmental” human rights.27 32. Each complaint of an interference with an Article 8 right will turn on its own facts. Evidence would require to be led in support of the interference complained of. On the basis of current information and on the basis of current case law, it is unlikely that the scheme could be said to directly and seriously effect individuals, in the manner understood by ECHR law. That said, the Promoter appreciates that the Scheme will affect the lives of individuals and others who live proximate to the railway. 33. In the event that interference was found, the mitigation measures proposed, together with the justification on which the Promoter seeks to argue for the Scheme in the general and public interest, mean that it is unlikely that a breach of Article 8 would be upheld. The Promoter is satisfied that if such an interference were to be found then such interference would be allowable and therefore consistent with the ECHR as it would be lawful, necessary, in line with and related to the legitimate aims set out in Article 8(2) and proportionate. 34. In terms of lawfulness and legitimacy, the work will be authorised by an Act of the Scottish Parliament. The preliminary design of the project carried out to date has been developed in accordance with Network Rail Company standards taking account of all relevant health and safety standards, HMRI guidelines and all statutory requirements, best practice guidelines, codes of
The Office of Rail Regulation will take over responsibility for safety on UK railways in 2006 with operational safety being the responsibility of the HMRI under the ORR 25 See Environmental Statement, sections 7 and 8, Non-Technical summary paragraphs 12.4 and 12.5 26 Hatton & Ors v UK (2003) 37 EHRR 20. 27 Regina (Lough & Ors) v The First Secretary of State, Court of Appeal 29th July 2004
practice. The detailed design of the Scheme will similarly be developed and will be subject to scrutiny. The Bill is in accordance with the national, local planning and transport policies as detailed in the Promoter’s Memorandum, Explanatory Notes and Environmental Statement. 2. Can the promoter explain how it has satisfied itself that the provisions in the Bill which give rise to a determination of “civil rights and obligations” are compatible with article 6 of the ECHR?
Promoter’s Response 35. The Promoter appreciates that the Committee wishes to be satisfied that the human rights implications which arise from Article 6 of the ECHR have been considered and that those provisions to the Bill which give rise to a determination of “civil rights and obligations” are compatible with Article 6. The answer to the Committee’s question has several elements. Bill process 36. The principal purpose of this Bill is to give statutory authority to the Promoter or its successors (“the authorised undertaker”) for the construction of works to provide the Edinburgh Airport Railway Link. In particular, the Bill grants compulsory purchase powers to enable the authorised undertaker to acquire the land or rights in land that are required for the works to be constructed and operated. The development authorised by the Bill will be “permitted development” so that the Act will effectively grant planning permission. The first element, therefore, is to determine whether the process for granting such statutory authority i.e. the Parliament’s own procedure for passing the Bill complies with Article 6. 37. The Bill is subject to the Parliament’s Private Bills procedure as set out in Rule 9A of the Parliament’s Standing Orders and detailed in its Guidance on Private Bills. It is not necessary to detail these requirements but, in brief, they provide for those specifically affected by the Bill to be alerted by being sent individual notices. There is then an opportunity to lodge written objections in respect of anything in the Bill that adversely affects the interests of the objector. At the Preliminary Stage, when the Committee is considering the principle of the Bill, it has been the practice for Committees to call for evidence from objectors in respect of topics germane to principle, e.g. noise and vibration, and to have their views taken into account during the parliamentary process. This ensures that the interests of those affected by the Bill are subject to scrutiny. 38. The overall Bill process itself has been authorised by the Scottish Parliament, a body which must itself comply with the ECHR. An individual who considers that an Act of the Scottish Parliament is not ECHR compliant and that his or her interests are adversely affected by it may challenge the Act by way of judicial review.
Bill provisions 39. In the course of the Bill’s pre-introduction scrutiny two sections of the Bill were adjusted to make clear that they did not conflict with Convention rights. In section 28, subsection (5) was added to make clear that the section does not interfere with the obligation to make an advance payment of compensation before taking entry. Section 30 was amended to include procedure for an affected landowner to object to a proposed correction in the Parliamentary plans or Book of Reference and in such a case for a hearing to be held (see section 30(2) and (4). Article 6 of the ECHR provides: “1. In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal established by law…” 40. The individual components of this Article involve complex and lengthy consideration of legal principles and precedents. The exercise of compulsory purchase powers involves the determination of “civil rights and obligations” so the process relating to the exercise of those powers must comply with Article 6. The use of compulsory purchase requires to be justified in terms of the public interest justification under Article 1 of Protocol 1. Those issues have been addressed in the response to question 1. 41. In terms of the compulsory purchase powers sought, the Bill implements existing legislation and compensation on the same basis as any other compulsory purchase in Scotland. In addition the Promoter has taken steps to ensure that the provisions relating to blighted land have been included in the Bill. This means that the Bill is subject to all the same procedural rules, safeguards and requirements regarding compensation as apply generally.28 These provisions have their own procedures and appeal mechanisms which appear to the promoter to be ECHR-compliant, and which have not been found to be wanting in that regard. Regarding implementation, the Promoter will endeavour to reach agreement with all parties on all legitimate and reasonable claims for compensation. If the level of compensation cannot be agreed, the case may be referred to the Lands Tribunal for Scotland, when the affected landowner has rights to be heard.29 42. In light of all of the above the Promoter is satisfied that the provisions relating to compulsory purchase in particular are compatible with Article 6 of the ECHR.
See Explanatory Notes paragraphs 70-167 Land Compensation (Scotland) Act 1963 Section 8