GLASGOW AIRPORT RAIL LINK BILL
Hearing held at
Renfrewshire Council
Paisley
31 August 2006
GROUP 2
THE ARCHES
GLASGOW AIRPORT RAIL LINK BILL
Hearing held at
Renfrewshire Council, Paisley
31 August 2006
Group 2
The Arches
Assessor: Professor Hugh Begg
For Promoter: Mr Stuart Gale QC
Ms Lauren Sutherland
Mr Robin Priestley (Anderson Strathern)
Group Questioner:Mark Anderson, Executive Director, The Arches
Chris Manning, Director, Ove Arup & Partners
Witnesses:Dani Fiumicelli, Regional Director, Faber Maunsell
Charles Hoskins, Director of Major Projects, SPT
Bill Lynas, Commercial Scheme Sponsor, Network Rail
Ian Watson, Regional Director, Faber Maunsell
[Paul Irving, Partner, John Kennedy & Co.]
[The hearing commences at 10.00 am]
Assessor: Good morning everyone. I see from the clock that it is now ten o’clock and we can begin. This is the first of a series of hearings at which oral evidence will be taken on objections that have been made to the detail of the Glasgow Airport Rail Link Bill. On Wednesday, 21 June 2006, the Scottish Parliament debated a motion in the name of the convenor of the Glasgow Airport Rail Link Bill Committee that the Parliament agrees to the general principles of the Glasgow Airport Rail Link Bill and that the Bill should proceed as a private Bill. That motion was agreed and, accordingly, the Bill move on to the second stage in the Private Bill process which is called Consideration Stage.
That stage, as I am sure almost everyone here is fully familiar with, has two phases and the hearings are part of the first of these. In essence, the role of the committee in this first phase is to act as an arbiter between the Promoter, in this case Strathclyde Partnership for Transport, and the Objectors. The oral evidence which I am about to hear is taken to assist the Committee to reach a decision on each outstanding objection. The outcome of this phase will be a written report from the Committee to the Parliament in which the Committee will give its decisions on whether to uphold or reject each objection that is considered. The report may also indicate areas where the Committee expects the Bill to be amended during the second phase of the Consideration Stage.
My name is Hugh Begg and I am the Assessor appointed by the Scottish Parliament Corporate Body to consider evidence brought to the Committee at this, the first phase of Consideration Stage, and I am to report to the Bill Committee. For the avoidance of doubt, the Committee may either accept or reject the recommendations contained in my report, and it can take any such further action as it sees fit. It is for the Committee, not me, to provide its own report to the Parliament.
The Standing Orders of the Scottish Parliament set out the basic duty of the Assessor at Consideration Stage, and at its meeting on 21 June 2006, the Committee elaborated on that to indicate how it expects that I should carry out my role. In short, the proceedings of the Committee require that I act in a manner which is consistent with the Parliament’s establish procedures and in accordance with the Human Rights Act 1998 and the European Convention on Human Rights.
I am accompanied today by members of the Private Bills Unit of the Scottish Parliament. They and others in the unit have made a very considerable body of preliminary work in the preparation for these hearings, as I am sure you are all aware, and are here to assist us all in ensuring that the proceedings continue to run smoothly. If anyone has any question at all about administrative matters, please address it to them; they will be delighted to help. [domestic announcements]
I propose that we divide the sitting day, today and other days, into two parts, starting at 10 o’clock, we shall proceed until around 12.30/one o’clock, have a break of just under an hour or so for lunch, and we hope to finish shortly after four. I do not expect to sit after four o’clock unless there are exceptional circumstances.
There are another few matters that I want to read into the record. In the preparations for these hearings, a considerable amount of preparatory work has been done by the members of staff at the Private Bills Unit, but also, of course, by the Objectors, by the Promoters and their witnesses. All of this has been extremely helpful to me in carrying out my job as Assessor and making effective use of our time at these hearings.
I understand that a meeting was held on 24 August at which the Private Bills Unit made themselves available to Objectors to explain how the hearings will be run. Perhaps you should know that, in preparation for these hearings, I have reviewed all the relevant witness statements from the Objectors, all of the responses from the Promoter and all of the rebuttal from the Objectors. I want to make it quite clear that all of that material is a matter of record. I have no need to hear any of it again. Witnesses will be questioned, however, on the evidence that has been submitted. On the basis of what I have read and what I may hear, it is possible that I may have a few questions for witnesses myself.
As a further preparation for the hearings, on 24 August I made an accompanied site visit to the proposed route of GARL and each of the objection sites which are mentioned by the Objectors. The purpose of the inspection, as I indicated to those who met me, was to ensure that the parties are satisfied that I am fully acquainted with the physical aspects of the proposed route of the Glasgow Airport Rail Link, the relevant objection sites and also their immediate vicinities. At the accompanied inspection, particular features, as they related to the evidence, were pointed out to me, but I wish to assure all concerned that no evidence at all was taken on site.
I have also made an unaccompanied set of site inspections on 25 August, that is to say the next day, to certain points which were of interest to me, and I intend to make further unaccompanied site inspections if I consider that to be necessary in order to prepare my report.
Finally, as far as some aspects of procedure at the hearing, probably all of us here are relatively new to this particular procedure, and for some it may be an entirely new experience altogether. Accordingly, I emphasise that the hearing today and on all other occasions will be based on the principles of natural justice: these are openness, fairness and impartiality. My objective throughout, and I emphasise this, will be to obtain the best information on all the matters relevant to the report which I must make to the Committee and, with this in mind, the proceedings must follow a well-established procedure and structure. However, within that structure I would like for us to be as informal as possible. This is not a court in any way, it is a hearing, and my experience is that we can get best evidence by that relatively informal set-up.
As far as the evidence is concerned, everybody should have access to a guide on oral evidence-taking issued to the participating parties by the Bills Unit. Lead Objector and the Promoter may call witnesses to give evidence-in-chief, the evidence will be open to cross-examination, and the witnesses may then be re-examined if that is required. In cross-examination and re-examination, and again for the transcriber I would emphasise this, I would be much obliged if those asking the questions would do so at a measured speed, which assists those providing the transcript of the proceedings.
After all the initial evidence has been presented, I shall invite the parties to make a short closing statement, which should be no more than five minutes in length, no new points shall be raised in the closing statements but they should have the following components. They should set out clearly and for the record the final position of the party as it stands at the end of this hearing. I want to know for the benefit of the Bill Committee how, if at all, the parties consider that the Bill should be amended. Let me emphasise that the closing statements are a very valuable part of the proceedings, and if a short break of five minutes or so would be appropriate to allow the parties to reach their final positions, I am perfectly happy and open to that suggestion. I would much rather that it was a considered statement than one which would be subject to any form of modification later on.
You will be pleased to know that I have only one final matter to raise, which is my own report to the Glasgow Airport Rail Link Committee. Once all the hearings are complete, and we hope that these may be complete by next Tuesday, the next steps are for me to consider all the evidence, both oral and written, and thereafter to make my report along with recommendations to the Bill Committee. I am bound to report to the Committee by the end of September or as soon thereafter as is possible. Thank you. These are all the preliminary matters which I have at the moment.
Could we move to the first group, and these are the objections concerning The Arches. I have them labelled as Group 2, and I would, first, like to ask the persons who are going to lead the cases to introduce themselves and their witnesses, and to indicate the order in which their evidence will be given, the main subjects that will be covered and then we can get ahead. I shall start with the Promoter, who will lead the case.
Mr Gale: My name is Stuart Gale, I am one of Her Majesty’s counsel in Scotland, and I am accompanied and assisted by Miss Lauren Sutherland, advocate, and I am instructed by Messrs Anderson Strathern WS of Edinburgh. The Partner dealing with the matter is Mr Robert Carr, and present today is Mr Robin Priestley of that firm. So far as the case for the Promoter is concerned in relation to the Group 2 Objector, The Arches, the witnesses are those gentlemen at the table in front of you: Mr Dani Fiumicelli of Faber Maunsell who will deal with that as relating to noise and vibration, Charles Hoskins, Promoter, and Mr Bill Lynas of Network Rail.
Assessor: Thank you very much. I note here that you might be calling Mr Paul Irving?
Mr Gale: No, Sir.
Assessor: Thank you. As a preliminary matter, Mr Gale, and before we move on, are there any matters on which I should be updated?
Mr Gale: In relation to this Objector, so far as the Promoter is concerned, I believe I can say there is a remaining area of disagreement between the Promoter and the Objector, which it has not been possible to reach a final agreement upon, although I would indicate that attempts have been made. I should indicate formally that two days ago we received from the Objector a report on matters relating to noise and vibration authored by Mr Manning of Arup, and I am quite content, first, that that report be before you and, secondly, that Mr Manning, if appropriate, gives evidence in support of that report. It is a review of a report that Mr Fiumicelli prepared for the Promoter, and I am quite content that that be the case.
Assessor: I have that document before me, and I am obliged to you for allowing it, or for making no objection. May I just be certain about the issues that are before us this morning? Issue 1 I have down as noise and vibration.
Mr Gale: Yes.
Assessor: Issue 2 is the adverse impact on business.
Mr Gale: Yes.
Assessor: Issue 3 is limitations on access or egress.
Mr Gale: I believe that that is now a very minor issue, if an issue at all.
Assessor: Is it still before me?
Mr Gale: Nominally, I believe it is still before you but I do not understand there to be any particularly significant dispute on that.
Assessor: In the closing submission, we can sort all of that out, would that be helpful?
Mr Gale: The evidence will perhaps develop and explain where we are on that, rather than me doing it.
Assessor: Splendid, and issue 4 is the length of time and is still an issue. Thank you very much. As a further preliminary matter on this particular group, could you enlighten me a little on why, in your client’s opinion, the content of the objections has not been capable of resolution?
Mr Gale: Yes, Sir. The fundamental objection by this group relates to the noise and vibration, I believe it is fair to say it in that way. Albeit there are differing approaches to the methodology between Mr Fiumicelli and Mr Manning in arriving at their conclusions, there is an almost unanimity of final view as to the impact of the GARL proposals in noise terms and vibration terms upon The Arches.
If I may must make the position clear, there is a datum in this objection, and this will apply to the next objection, which is that the platform that is necessary at Central Station has to be in a certain location. It is not possible for it to be in any other location.
Assessor: This is Platform 11A?
Mr Gale: This is Platform 11A, and that, as a consequence, brings it very close to the premises of The Arches. The Arches have indicated in their objection that there are certain matters that I believe they describe as non-negotiable, which is an expression that permeates through both their initial objection and their witness statement. I make no criticism of that but I understand that to be their position. Unfortunately, with that adopted position, they seek during the construction phase certain restrictions upon working and, while a generality of an offer can be made in the sense that all reasonable endeavours will be taken to minimise the interference with the activities of this organisation, which are fully understood and appreciated by the Promoter, it is not at this stage possible to give the specific and extensive, one has to say, undertaking that this Objector requires.
Assessor: That is very helpful as an introduction, Mr Gale. As one point of clarification, are you saying that it takes two to negotiate?
Mr Gale: No. Sir, there is no criticism of either party in the sense to suggest that efforts have not been made to negotiate. It is simply that what the Promoter sees as being possible in terms of any undertaking in relation to a restriction on working times and working practices simply cannot be made and given in the terms that are sought. I can understand, given the nature of the Objector’s business, why this is being sought. I do not in any way suggest that it is utterly unreasonable, I understand why it is being sought and my client understands why it is being sought. However, at this stage, it cannot be given in the terms that are sought.
Assessor: I am obliged to you for that, Mr Gale. The issues outstanding then are 1, 2, 3 and 4 with 3 taking a slightly back seat.
Mr Gale: Yes, I think that is right.
Assessor: I am obliged. Now the lead Objector?
Ms Hawthorn: I am from Masons Solicitors and represent the Objectors Group 2, The Arches Theatre.
Assessor: Thank you very much. Your witnesses?
Ms Hawthorn: My witnesses will be speaking to noise and vibration impact, and that will be Chris Manning, Director of Ove Arup, an acoustician, and giving evidence on the remaining topics of impact on business, access and duration of compulsory purchase powers, Mark Anderson, Executive Director of The Arches.
Assessor: Thank you very much. Once again, as a preliminary matter and as briefly as you can, why in the opinion of the Objectors has this not been capable of resolution?
Ms Hawthorn: A dialogue was entered into between The Arches and SPT upon receipt of The Arches’ objection. SPT agreed to commission an assessment of acoustic intrusion at The Arches, and this report is included in evidence. After some uncertainty about whether SPT would pay for an independent review of that report for The Arches, The Arches commissioned Mr Manning to advise them on this very complex technical area.
Separately, SPT and The Arches have debated the possibility of restricting working hours and periods of the year during which construction would be carried out so as to minimise disruption to the activities in The Arches. Various permutations have been discussed but no agreed position reached. SPT have acknowledged that vibration mitigation would be put in place as part of the project and that measurements would be taken on completion of works to check actual levels against estimated levels and, if necessary, any deviation would be addressed.
On 17 August, SPT provided to The Arches a draft letter of undertaking, which purported to address these issues and, therefore, allow the objection of The Arches to be removed. The Arches are advised that the undertaking is lacking in specification as to (a) the programming and phasing of construction works to which the Promoter will commit, (b) the attenuation measures which the Promoter is required to install, (c) the remedy for The Arches if the measures installed do not achieve the estimated mitigation and (d) who must fulfil these obligations in the event of transfer of the Promoter’s interest.
The Arches have not objected to the GARL Bill in principle, and the evidence led for The Arches today seeks to clarify the issues of noise and vibration impact, business impact, access and duration of compulsory purchase powers, so that the disruption of The Arches, which will inevitably result from the construction process, is minimised and The Arches business may continue to operate alongside the construction and operation of the Glasgow Airport Rail Link.