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2nd Report, 2010 (Session 3)

Stage 2 Report on the Forth Crossing Bill

CONTENTS

Remit and membership

Report
INTRODUCTION: THE HYBRID BILL PROCESS

Introduction
The Bill
Procedures for a Hybrid Bill

STAGE 2 PROCESS AND COMMITTEE’S APPROACH TO STAGE 2

Role of the Committee
Background
Consideration of the Assessor’s report and the Committee’s conclusions

OVERVIEW OF THE BILL AND ASSOCIATED DOCUMENTS

Stage 1 to Stage 2 – the overarching concerns of the Committee
Code of Construction Practice
Local authority powers
Noise and vibration
Working hours
Health impacts
Update on road network/Newton village
Update on public transport issues and strategy
Update on consultation and engagement
Update on subordinate legislation
Finance
Conclusion

REPORT BY THE ASSESSOR

RECOMMENDATIONS OF THE COMMITTEE

Comment
Amendments
Register of Commitments and Undertakings
Code of Construction Practice
Recommendations by the Assessor
Additional undertakings

Annexe A: Timetable for Stage 2

Annexe B: Minutes of Committee meetings at Stage 2

Annexe C: Register of Commitments and Undertakings from the promoter as at October 2010

Annexe D: Accompanying documents and oral and associated written submissions at Stage 2

Remit and membership

Remit:

To consider and report to the Parliament on the Forth Crossing Bill.

Membership:

Jackson Carlaw (Convener)
Joe Fitzpatrick
Hugh O'Donnell (Deputy Convener)
David Stewart

Committee Clerking Team:

Clerk to the Committee
Sarah Robertson

Support Manager
Sam Currie

Administrative Support
Carol Mitchell

Stage 2 Report on the Forth Crossing Bill

The Committee reports to the Parliament as follows—

INTRODUCTION: THE HYBRID BILL PROCESS

Introduction

1. A Hybrid Bill is a Public Bill that is introduced by a member of the Scottish Executive to make provision about the public and general law; however its provisions can also directly affect the interests of particular individuals or bodies. These individuals or bodies are entitled to participate in the proceedings. The procedures in place for Hybrid Bills are largely similar to those for Public and Private Bills; they incorporate certain procedural safeguards where the Hybrid Bill process may affect the private interests of particular individuals or bodies. In general terms, the role of the Parliament is to legislate but also to arbitrate between all parties concerned. The rules relating to Hybrid Bills can be found at Chapter 9C of the Standing Orders of the Scottish Parliament1.

The Bill

2. The Forth Crossing Bill was introduced on 16 November 2009 by John Swinney, Cabinet Secretary, Finance & Sustainable Growth. It is being promoted by the Scottish Executive (the Scottish Government)2.

3. The Bill gives Scottish Ministers power to construct a new bridge over the Firth of Forth and to construct and improve associated roads and structures; to authorise the acquisition or temporary possession and use of land for construction and improvement works; and for connected purposes.

Procedures for a Hybrid Bill

4. A Hybrid Bill is introduced by a member of the Scottish Government lodging the Bill and other accompanying documents (these include explanatory notes and policy memorandum) with the Parliament. The accompanying documents explain the background of the Bill, its purpose and the details of the scheme it promotes. A list of the accompanying documents for the Forth Crossing Bill is at Annexe D.

5. Transport Scotland, acting on behalf of the promoter, was required to notify any person or group of persons that may be considered to be affected by the Forth Crossing Bill. Adverts were also placed in local newspapers whose circulation is in the area affected. This allowed anyone who may have been adversely affected by the measures sought in the Bill to object.

6. There was a 60-day period from the introduction of the Bill, named the ‘objection period’, during which objections to the Bill were lodged. This period expired on 26 January 2010 and 90 objections were received.

7. All Hybrid Bills are subject to a three-Stage process:

  • Stage 1 – which involves the Committee considering the general principles of the Bill, whether the Bill should proceed as a Hybrid Bill and preliminary consideration of objections;
  • Stage 2 – which involves the Committee taking written and oral evidence on any objections to the Bill and considering amendments;
  • Stage 3 – which involves the Parliament considering further amendments and deciding whether or not to pass the Bill.

8. A separate Reconsideration Stage is also possible in certain circumstances.

Stage 1

9. The Committee’s role at Stage 1 was to produce a report on two issues; firstly whether to recommend that Parliament should agree to the Bill’s general principles, and secondly whether it should agree that the Bill was appropriate to proceed as a Hybrid Bill. In considering the general principles of the Bill, the Committee considered the Bill as a whole.

10. The third role of the Committee at Stage 1 was to give preliminary consideration to any objections lodged and to consider whether any objections should be rejected as a preliminary at Stage 1. During its consideration, the Committee agreed to appoint an independent assessor to assist it at Stage 23.

11. The Bill Committee produced its Stage 1 Report on the Forth Crossing Bill on 12 May 20104. The Committee recommended that the “Bill should proceed as a Hybrid Bill and that the general principles of the Bill should be agreed to.”5 The Committee also concluded that certain objections to the whole of the Bill did not affect the Committee’s recommended approval of the general principles of the Bill. Objections to specified parts of the Bill would be considered at the next Stage, if Parliament agreed. The Committee’s Report was debated and agreed by the Parliament on 26 May 20106.

Stage 2

12. The procedures governing Stage 2 are set out in the Parliament’s Standing Orders at Rule 9C.11. The overall purpose of Stage 2 is to consider the detail of the Bill. There are two distinct phases within this; the first is consideration of evidence in relation to objections to the Bill and the second is consideration of amendments to it.

13. During the first phase, an assessor was appointed to consider objections and evidence was given to the Assessor by both objectors and the Scottish Government. The Assessor has reported to the Committee and the Committee has considered the Assessor’s recommendations in producing its report.

14. The second phase involves the Committee meeting in a legislative capacity to consider and dispose of any amendments to the Bill.

15. There must be an interval of five sitting days before the Committee begins phase 2 - the formal proceedings on amendments. During this interval, the Scottish Government or any Member of the Scottish Parliament (MSP) may lodge amendments to the Bill. Only members of the Bill Committee may vote on amendments.

Stage 3

16. Stage 3 takes place at a meeting of the Parliament. If the Bill has been amended at Stage 2, there must be nine whole sitting days between the last day at that Stage and the day on which Stage 3 takes place.

17. Stage 3 proceedings on amendments are similar to those at Stage 2, except that all MSPs may lodge amendments and vote.

18. After proceedings on amendments at Stage 3 are concluded, the Parliament must decide whether to pass the Bill. The ‘Member in charge’ of the Bill (the member of the Scottish Government who introduced the Bill or who is subsequently appointed by the First Minister to take general responsibility for the Bill) moves that the Bill be passed, and a general debate on the Bill may take place followed by a vote.

STAGE 2 PROCESS AND COMMITTEE’S APPROACH TO STAGE 2

Role of the Committee

19. The remit of the Forth Crossing Bill Committee is to consider and report to Parliament on the Forth Crossing Bill.

20. During phase 1 of Stage 2, the role of the Committee in relation to objections is in general terms to act as arbiter between the Scottish Government and objectors and to report its decisions to Parliament. This can involve allowing differences between the parties to be resolved by negotiation but also, where that is not possible, by deciding on the Committee’s approach to the objections to provisions in the Bill.

Background

21. Rules set out in the Parliament’s Standing Orders allow for the appointment of an assessor at Stage 2 to assist the Committee. Professor Hugh Begg was appointed by the Scottish Parliamentary Corporate Body as the Assessor for the Forth Crossing Bill7. Professor Begg’s role was to consider written and oral evidence on objections during phase 1 of Stage 2.

22. Annexe A sets out the programme of work undertaken in gathering evidence on the objections that were considered by the Assessor. The recommendations arising from evidence on objections are presented to the Committee by the Assessor in the form of a report.

Written and oral evidence

23. All the written evidence provided in relation to each group of objections is available on the Forth Crossing Bill Committee webpage—

http://www.scottish.parliament.uk/s3/committees/forthXbill/documents/groupings.htm

24. The oral evidence provided to the Assessor is available on the webpage8

http://www.scottish.parliament.uk/s3/committees/forthXbill/index.htm

Consideration of the Assessor’s report and the Committee’s conclusions

25. The Committee considered its approach to this Stage 2 report at its meetings on 7 and 27 October 2010, taking into account the recommendations reported by the Assessor.

26. The Assessor’s report and his recommendations are attached to this report at page 25. Having considered each of the objections at Stage 2 in turn, the Committee accepts the reasoning of the Assessor and finds itself in agreement with each recommendation made by the Assessor. The Committee, therefore, accepts the report by the Assessor and adopts his recommendations. In addition, the Committee, having considered issues outstanding from Stage 1 and issues brought to its attention by the Assessor, makes a series of further recommendations of its own.

OVERVIEW OF THE BILL AND ASSOCIATED DOCUMENTS

Stage 1 to Stage 2 – the overarching concerns of the Committee

27. During its consideration of the general principles of the Bill, the Committee considered a range of issues. Some of these issues, in the opinion of the Committee, were overarching in that they resonated through the provisions of the Bill, some of the key documents related to the Bill and on into individual objections. Consideration of individual objections and how they fit with the overarching concerns discussed here follows in the report of the Assessor. The Committee was keen to examine how the promoter had dealt with its wider concerns.

28. The Committee feels that there has been a marked contrast in engagement with objectors on the part of the promoter between Stages 1 and 2. Generally, the Committee noted that there appears to have been a great deal of interaction with objectors since the conclusion of Stage 1 and the Committee welcomes this. The Committee does, however, feel that this response to objectors’ concerns was slow to develop and that certain of the objections to the Bill could have been resolved sooner if the promoter had been more willing to engage at an earlier point and share more information and make earlier concessions to some objectors.

29. Having noted an apparent change to the ‘mind-set’ of the promoter, the Committee hopes that this positive course of action will continue and develop and commends those who appear to have responded to the Committee’s concerns at Stage 1.

30. The following issues were highlighted by the Forth Crossing Bill Committee in its Stage 1 report as areas that particularly concerned the Committee and it indicated in that report that it expected to see positive changes and progress made by Transport Scotland during Stage 2.

Code of Construction Practice (role of local authorities, noise levels, working hours, environmental health impacts)

  • road network
  • public transport
  • consultation/engagement
  • subordinate legislation
  • finance

31. The relevant paragraphs from the Stage 1 report are quoted below with a summary of the activity that took place over the course of phase 1 of Stage 2.

32. Many of the above issues raised by the Committee are also raised in specific objections. Written and oral evidence on these objections was given to the Assessor and his report can be found at page 25. It is not the intention of the Committee to repeat the Assessor’s report here; instead the Committee has focussed in this part of the report on how the promoter has responded to the overarching concerns that were debated at Stage 1.

Code of Construction Practice

33. A Code of Construction Practice (CoCP) is required, in terms of a determination made by the Presiding Officer under Standing Orders, Rule 9C.3.2(g)(iii), in relation to the contents of the Environmental Statement.

34. The purpose of the CoCP is to identify the actions the Scottish Government will require contractors and sub-contractors to take during the construction phase of the project to minimise environmental and other impacts e.g. construction noise, dust pollution, disposal of waste material. It defines the minimum standards of construction practice required of contractors, informs those affected (e.g. local communities) of how the Scottish Government will mitigate such impacts and on how they will be consulted and engaged over such mitigation and of the timetable for the construction works.

35. The CoCP is useful in terms of identifying the means by which contractors will be required to carry out the works in a manner that seeks to minimise their environmental and other impacts. The CoCP is to be incorporated into the contracts for the construction of the works proposed under the Bill. This ensures that all contractors and sub-contractors are required to fully comply with the terms of the document.

36. The CoCP was introduced with the Bill on 16 November 2009. The Government amended it at the end of May 2010 (‘Revision 1’) following the Committee’s Stage 1 Report and the Stage 1 debate. It was amended again at the start of June (‘Revision 2’) in response to various issues raised in objections and latterly in September (‘Revision 3’) as a consequence of the hearings before the Assessor.

37. The Committee noted that the CoCP can continue to be amended up to and beyond enactment of the Bill (although any amendment must not reduce the standards of mitigation and protection, as explained in section 68 of the Forth Crossing Bill (As Introduced)).

38. During the hearings, Transport Scotland was asked by the Assessor to clarify why the CoCP has been the subject of continuing revision—

The Assessor: Why cannot you just produce a code of construction practice?

Lawrence Shackman: As with all documents, people interpret things in different ways. Some people want the code to be much more specifically related to a particular aspect of the scheme, instead of being more general in its scope. People do not realise that, sitting alongside all the work that is being done to promote the bill, we have the construction contract, which tends to be even more specific about particular geographic points along the scheme, and about how and how not to carry out certain items of work.9

39. In comparison to other Acts of the Scottish Parliament, the Assessor was also keen to establish whether this CoCP was ‘weaker’ or offered any less protection to local communities—

The Assessor: The issue that you probably know that I am leading up to is whether there are any sections in the code of construction practice in which the standards that are to be applied to the project are lower than those that were applied to the Airdrie to Bathgate project.

Lawrence Shackman: No. I do not believe that there are.

The Assessor: Are most of the standards either the same or higher?

Lawrence Shackman: Yes.10

40. The Committee is content that the Code of Construction Practice has been improved and strengthened. However, the Committee reports that the promoter should make the revisions to the Code that are recommended by the Assessor and as set out at page 165 of this report (Recommendations: Code of Construction Practice).

41. The Committee notes that the Code is capable of being amended throughout the lifetime of the project (although any amendment cannot, under the terms of the Bill, reduce the standards of mitigation and protection).

Local authority powers

42. There is, inevitably, some cross-over between Local authority powers and the sub-section Noise and vibration which follows later in the report (see page 11).

Stage 1

43. Stage 1 Report, paragraph 275 stated - In considering the mechanism available for monitoring and enforcement, the Committee agreed, given the concerns of objectors and some statutory consultees, that the local authorities should have an enhanced role to play. The Committee requests that the promoter considers this aspect further in discussion with the local authorities and comes back with amendments to the Code of Construction Practice in this regard.

44. Stage 1 Report, paragraph 276 stated - The Committee notes that there remain issues around the removal of local authority powers; these are matters for consideration, initially, at the first part of Stage 2.

Current

45. The Policy Memorandum to the Bill states that the “Forth Crossing works will affect more than one local authority area. Accordingly, these local authorities could operate different policies in relation to the control and consent for construction noise and this could prevent completion of the Forth Crossing works.” (paragraph 225).

46. The Scottish Government revised the CoCP in both May and June 2010 to reflect local authority involvement. The Committee noted, from the attached Annexe C, that several groups - including local authorities - will now be involved in monitoring and shaping the works associated with the construction activities. The Government states, in the Schedule of Changes (May 2010), that changes arise from paragraph 275 of the Committee’s report. Revision 3 of the CoCP makes clear that agendas and minutes of meetings of these groups will be published on the information website—

Lawrence Shackman, Transport Scotland: We have been developing proposals for different working groups to provide oversight of traffic management, marine works and construction noise, and those were included in the revision. Also included was a commitment to publish information on the project website, including the environmental management plan and monitoring records.11

47. The Committee wrote to the Minister for Transport, Infrastructure and Climate Change on 17 June 201012. Although the Committee was mainly content with assurances given at Stage 1, it had a further query about the approach to noise—

Specifically on the issue of noise, whilst the Committee acknowledges that the approach is consistent with earlier Bills, the Committee would like further information in order to understand why a single threshold at level C is used for triggering local authority involvement and would like to understand what action would be triggered at levels A and B. [see Table 19.10 in the Environmental Statement].

48. The Minister responded, in a letter dated 7 July 2010 to the Convener13

I turn now to the issue you have specifically raised about noise and the further information you have requested in order to understand why a single noise threshold at level C is used for triggering local authority involvement and your interest in the action which would be triggered at levels A and B.

As you have correctly noted in your letter, the assessment of noise effects is based on exceedence of the relevant ABC Category (based on the pre-construction ambient noise levels) set out in BS5228. We are continuing our consultations with the local authorities regarding the control of noise and vibration and one of the aspects we have discussed with them was that approval from the relevant local authority would be required where the noise effects predicted by the contractor's assessments exceed the noise effects identified in the Environmental Statement. This would change the approach currently set out which, as you note, requires local authority consent only where the exceedence of the highest ABC category noise level would occur.

49. In relation to the issue of local authority powers in monitoring noise, the Scottish Government has revised the CoCP to include a new section 5.6 (see Annexe C) to explain the role of the local authorities—

If the contractor’s assessment predicts residual noise effects greater than those identified in the Environmental Statement based on the criteria in Table 5.3.3 of this CoCP and is accepted by the Employer’s Representative following consultation with the Noise Liaison Group, the contractor will additionally seek prior written consent from the relevant local authority.

50. Section 5.6.4 sets out the information that the contractor would be required to provide to the local authority in applying for consent. These new sections are provided by the Scottish Government to clarify why it has placed in the Bill provisions that disapply the usual local authority statutory noise controls.

51. Section 5.9.1 (Monitoring) of Revision 2 of the CoCP has been expanded by the Scottish Government to include a new requirement that the contractor will undertake any additional monitoring that is required by the Noise Liaison Group.

52. Section 5.9.3 states that the contractor will undertake noise and vibration monitoring during activities for which consent is requested from local authorities as set out in Section 5.6 of the CoCP and will include a description of the monitoring proposed in the consent application.

53. In oral evidence, the Assessor heard an explanation of what changes had been incorporated into the CoCP as a result of the concerns of the Committee and others—

Andy Mackay, Jacobs Arup Joint Venture14: They relate largely to the noise management process and the fact that there is no longer a restriction to prevent local authorities serving notices under the Control of Pollution Act 1974; they will still be able to do so…The changes also relate to the requirements on specific consent from local authorities. Local authorities will be heavily involved in the noise management process through the noise liaison group.15

54. The Register of Commitments and Undertakings produced by Transport Scotland in August 2010 (on behalf of the Scottish Ministers) states—

...the Scottish Ministers will bring forward an amendment to the Forth Crossing Bill at Stage 2 which does not restrict the application of Section 60 of the Control of Pollution Act 1974 and Sections 80 and 82 of Environment Protection Act 1990 and the ability of the local authorities to issue notices. It is now intended to retain the ability of the local authorities to issue notices.

55. In evidence to the Assessor, Transport Scotland explained—

The right of appeal is inherent in the 1974 act and will not be changed: it exists and will continue to exist. The amendment that the promoter intends to lodge will extend the defence that the contractor may advance to include the opportunity to prove that Forth crossing works were being carried out in accordance with the code of construction practice.16

56. The appeal continues to be to the sheriff, an independent third party. Transport Scotland also stated—

…that the amendment to section 70 of the [Forth Crossing] bill that the promoter intends to lodge relates to section 61(8) of the 1974 act and that it will extend the provisions of the defence that is already afforded to a contractor in respect of any notice that is served…17

Noise and vibration

Stage 1

57. Stage 1 Report, paragraph 284 stated - The Committee is not persuaded that the approach adopted by the Parliament in considering Private Bills should be departed from. In relation to works arising under the road building portion of the contracts, as opposed to the portion of the contract to construct the bridge, the Committee agrees that the approach and the maximum levels applying in the A2B Act18 should apply to this project. The promoter is requested to amend the Code of Construction Practice in this regard before Stage 2 commences.

Current

58. Information on the Noise Liaison Group, which is relevant to consideration of this approach, is set out in Section 5 of the revised CoCP—

5.2.1 In line with the requirements of Section 1.4 of this CoCP, the contractor will have to undertake the works so that the noise and vibration effects of the construction of the scheme are not worse than the residual effects identified in the Environmental Statement. This CoCP does not define those noise effects but it does set out controls, processes and methods to be followed to comply with the obligations described in Sections 1.2 and 1.4 of this CoCP.

5.2.2 A Noise Liaison Group will be formed which will include representatives from the local authorities and Scottish Natural Heritage. The Noise Liaison Group will provide oversight of all aspects of noise planning, control during construction and monitoring. The contractor will consult with the Noise Liaison Group regarding all aspects of noise management, planning, noise related issues and monitoring information to provide assurance that construction works are being undertaken in accordance with the Environmental Statement, RIAAs [Reports to Inform an Appropriate Assessment] and this CoCP.

59. Section 5.3 of Revision 1 to the CoCP is a new section, added by the Scottish Government, which sets out how noise is to be managed in line with the Environmental Statement and provides an explanation of the criteria and methodology to be applied by the contractor in noise assessments and demonstrating compliance. This should be read in conjunction with the letter from the Minister (paragraph 48 above) setting out the work that has been ongoing in relation to maximum levels and management of these issues. In oral evidence, the promoter gave an explanation of how noise levels are set and how that triggers action and mitigation—

Richard Greer, Jacobs Arup Joint Venture: The first principle of noise assessment is to undertake a baseline noise study around the entire route...The baseline noise study then informs what is called an assessment category, which comes from the relevant British standard, BS5228. It identifies for day, evening and night time the level above which the noise would be deemed to have an impact on the people experiencing it…the assessment categories are ratcheted down from the daytime level to the evening level to the night-time level, so, as well as taking into account the existing environment, thereby providing greater protection for those who currently enjoy a quieter environment, they provide greater protection for the more sensitive times of the day—evening and night time…Having predicted the construction noise levels, we compare them against the assessment categories. If the assessment category is exceeded, that triggers the identification of an impact. Where there are impacts, the need to look at further mitigation is triggered.19

60. The CoCP was updated in Revision 2 to include vibration limiting criteria. Both noise and vibration are now tied into section 5.6 (Local Authority Consent) of the CoCP.

61. Transport Scotland confirmed at the recent hearings that—

Lawrence Shackman: The most significant change in revision 2 is modification of the approach to managing construction noise, removing the previous provisions relating to consent under the Control of Pollution Act 1974 [see previous text for local authority involvement], and including maximum noise levels.20

62. Revision 3 clarifies the contractor’s involvement in forecasting of significant “impulsive” noise events in relation to maximum noise levels and the mitigation process. This was explained at the hearings—

Richard Greer, Jacobs Arup Joint Venture: …there are various ways of quantifying and measuring noise. The indicator that has been identified as most closely giving guidance to how people respond involves what are called the equivalent noise levels, which appear in these tables as LAeq,T. “L” means level; “A” means A weighting, which means that it approximates closely to the frequency response of the human ear; “eq” means equivalent level; and “T” means over a period of time…the assessment time, which is one hour for night time and 10 hours for day time…It is averaged out in energy terms. It is not an average noise level. Basically, it adds together the total energy of the sound from all the different sources…[this] deals with any individual loud events. That is the reason for bringing forward the additional maximum noise level criteria, because the LAmax figures for each of the assessment categories are the instantaneous level from any loud event, such as a vehicle passing or percussive piling…I can advise that use of the LAeq is—and has been for decades—an industry standard. Use of those criteria, which are in the latest version of BS5228, is born of 25 years of experience on major construction sites that are very similar to that which is proposed for the Forth crossing project. Those guide levels were identified as protecting people. That is not to say that there will not be audible noise, but people will be protected from significant disturbance.21

63. The issue of absence of Lmax noise levels, raised in the objection by City of Edinburgh Council (CEC), has been resolved between the Scottish Government and CEC and was not a topic under discussion with the Assessor. West Lothian Council also confirmed that absence of maximum noise levels was no longer an issue in dispute.22

64. These issues are also specifically addressed in the Assessor’s report in relation to the objections lodged by City of Edinburgh Council and West Lothian Council (Groups 35 and 36). The Committee noted the views of the Assessor and agreed that it would take no further action on these issues. The Committee is content that Transport Scotland has amended the CoCP to enable the local authorities to play a greater role in relation to noise and vibration management control and planning during construction of the scheme but expects that a constructive dialogue will continue between all the relevant parties.

Working hours

Stage 1

65. Stage 1 Report, paragraph 294 stated - In relation to the written exchanges with Transport Scotland, the Committee notes a number of changes that the promoter intends to make. Given that the Code of Construction Practice will be a significant issue during Stage 2, the Committee requests that an amended version of the CoCP is produced for the commencement of that Stage taking account of all changes agreed to date.

Current

66. The Scottish Government amended the CoCP at the end of May 2010 (‘Revision 1’) following the Committee’s Stage 1 Report and the Stage 1 debate. It was amended again at the start of June (‘Revision 2’) in response to various issues raised in objections.

67. In particular, the Committee had requested a revision to the working hours for the road building portions of the construction contracts. Originally normal working hours were scheduled to begin at 0700 (this had been extracted from existing guidance for contractors published by City of Edinburgh Council). The first revision to the CoCP states, at section 3.4.1 that normal working hours for the road building sections of the works will “…be Monday to Saturday 0800 – 1900…”. The second revision puts normal working hours at “…Monday to Friday 0800 to 1900 hours and Saturday 0800 to 1800…”. Revision 3 clarifies that the ‘start up time’ (30 minute period prior to 0800) is restricted to weekdays.

68. The CoCP has also been revised, at section 5.5.5, to clarify the role of the Employer’s Representative and the involvement of the Noise Liaison Group in deciding whether to consent to working outside the normal hours (for example, to protect the integrity of the infrastructure being provided). Transport Scotland provided an explanation to the Assessor—

Frazer Henderson: We have set out in section 3.4 of the code of construction practice the working hours that we feel are appropriate to ensure the delivery of the project within the very tight timescale, so that the scheme is open by 2017…On Saturdays, we previously advised that we would have operations for the road works from 8 in the morning to 6 in the evening, with a 30-minute start-up time prior to 8 in the morning. That 30-minute start-up time will now be within the period of 8 to 6 in the evening; it will be from 8 to 8.30 in the morning. In respect of the marine works and working at night and on Sundays, I attention to paragraph 3.4.6 of the code, which states: “Working at night and on Sundays will be permitted for ‘marine works’ associated with construction of the main crossing and approach viaducts, but only with the approval of the Employer’s Representative and provided that the work is undertaken in accordance with the requirements of Section 5 of this CoCP.”23

69. The Committee is content with the approach to working hours now being taken by Transport Scotland.

Health impacts

Stage 1

70. Stage 1 Report, paragraph 247 stated – Transport Scotland, while noting that a health impact analysis is extremely subjective, confirmed that all the air quality and noise issues and all the technical issues that support the health impact have been independently audited. It did, however, agree to report back to the Committee on any actions that could be taken to further mitigate the effects on those worst affected. The Committee looks forward to receipt of that report.

Current

71. The Scottish Government has indicated that it has addressed this issue by revising the CoCP at section 2.3.1 by setting out a series of steps to investigate an issue brought forward by an individual as a complaint (see Annexe C). The circumstances will be assessed against various legislation, standards and codes of practice and appropriate actions or measures are to be taken. Details of the complaints and actions will be contained in a register which will be available to local authorities. A summary will be published on the Forth crossing website. The CoCP has also been revised at section 3.6.9 to include more information – including contact details for the complaints process – that will be carried in public places on fencing and hoarding at various footpaths and cycle routes.

72. The CoCP has also been revised at section 6.12.2 in relation to monitoring any dust and air pollution. The contractor must consult with local authorities on the monitoring measures but these inspection procedures must include “particular focus on sensitive sites such as residential areas and schools”.

73. The Assessor questioned the promoter’s consultant on how dust could be ‘managed’—

The Assessor: Dust seems to be a difficult thing to deal with—not only to measure, but to take appropriate action on. For that reason, a considerable range of actions are incorporated within the code of construction practice.

Michael Bull, Jacobs Arup Joint Venture: General construction dust plans can provide a general set of measures, but when people know exactly what they are going to do at a particular location, they can have a dust management plan for it that identifies locations and specific activities. There are, in effect, two levels of dust plans. One is the code of construction practice, which outlines an extensive range of dust management measures that could and will be applied where appropriate—that means where the activity is taking place and is likely to disrupt a receptor. When people are further into a project and know the exact construction methods, they can design further mitigation measures that are specific to that project.24

74. He also heard evidence about noise criteria—

Richard Greer, Jacobs Arup Joint Venture The criteria—as a decibel level—which come from the British standard clearly take into account, as they must, perceptibility and the potential for disturbance of people and the need to protect, as far as is practicable to do so, key items such as wellbeing and health. All those matters have been considered carefully by those who form those standards and national guidance to ensure that the criteria used to identify impacts provide people with those protections.25

75. Having heard this evidence, the Assessor subsequently questioned Transport Scotland on its protection for shift workers—

Frazer Henderson: Sir, you have identified a matter on which our code of construction practice is probably slightly deficient—issues concerning people who are shift workers. At paragraph 5.2.13 of the code, we have applied the Noise Insulation (Scotland) Regulations 1975, and we have specified the criteria for their application. If I read you correctly, sir, our application of those regulations has not drawn out the issue in view, which involves special cases involving shift workers and the aspects that Mr Greer discussed. In the light of that, we will return with an amendment to the code of construction practice to make it clear that, in exceptional, special circumstances, consideration will be given to noise insulation, and that those exceptional, special circumstances will apply where it can be demonstrated that somebody is affected through no fault of their own or through their working patterns. However, we will have to treat each case very much on an individual basis, and there will have to be a clear demonstration of the issues in view.26

76. Revision 3 of the CoCP includes the following undertaking—

The Scottish Ministers will consider at their discretion applications supported by evidence for noise insulation or temporary rehousing from occupiers who may have special circumstances, such as night workers, those working in home occupations requiring a particularly quiet environment and those with a medical condition which will be seriously aggravated by construction noise, and provide noise insulation or temporary housing where it is demonstrated that this is necessary.(section 5.2.16)

77. During the hearings with the Assessor, concerns about health and health-related issues were raised in relation to specific objections. Extensive evidence was given to the Assessor and it is not the Committee’s intention to repeat information here. Transcripts can be found at: http://www.scottish.parliament.uk/s3/committees/forthXbill/index.htm. In particular, there is general evidence on measurement, assessments and mitigation to be found in the transcript of 2 September.

78. The transcripts of 2 and 6 September cover the health impact assessment relating to the project. The Committee acknowledges that there is no statutory requirement on the promoter to produce a health impact assessment but recognises that the promoter, in this case, did provide such an assessment albeit that it was assessed at a high and general level which may not have provided much comfort to local residents. The Committee understands that the promoter has provided mitigation procedures and devices to combat specific issues (such as dust and noise) and has taken on board that a process of consultation, information and education can go some way to allaying people’s concerns about the project and can alleviate stress and anxiety. (See also Update on consultation and engagement.)

79. The Committee is content with the approach now being taken by Transport Scotland.

Update on road network/Newton Village

Stage 1

80. Stage 1 Report, paragraph 134 stated - The Committee hopes that discussions will continue and develop between Transport Scotland and the local authorities and other parties seeking mitigation of the impact of the road network. The Committee acknowledges that Transport Scotland accepts that there is a particular problem in relation to Newton village and would encourage it to develop some measures beyond the planned signage that would reduce the attractiveness of that route option. The Committee requests that Transport Scotland provide a progress report in this respect by the start of Stage 2 proceedings (should the general principles of the Bill be agreed to).

81. Stage 1 Report, paragraph 198 - The Committee considers that, should Intelligent Transport Systems (ITS) be put in place following construction of the new bridge, further thought should be given by Transport Scotland to the use and effectiveness of the system in directing traffic away from the A904 and Newton Village on the south side of the bridge.

Current

82. The impact on the road network should be read in conjunction with the following section, Update on public transport issues and strategy. Extensive evidence was given to the Assessor on traffic impacts relative to certain locations that were of interest to discrete groups of objectors. Transcripts can be found at

http://www.scottish.parliament.uk/s3/committees/forthXbill/index.htm. For example, the transcripts of 7 and 8 September may be of interest.

83. In relation to the road network in general, the CoCP has been revised to include the following commitment—

The contractor will also provide Traffic Scotland with regular updates regarding any disruption caused by construction works on the road network. The information website described in Section 2.3.1 [Community Engagement Requirements] of this CoCP will provide a link to the Traffic Scotland website to provide access to traffic information (CoCP paragraph 4.2.5)

84. At the hearings, Transport Scotland confirmed that—

Transport Scotland has been consulting local authorities regarding monitoring traffic levels on local roads. That will include pre-construction, during construction and post-construction monitoring, and we will agree the locations for permanent traffic counters with the local authority and will install them prior to construction works commencing.27

85. The Committee recognises that the Forth crossing project is designated as a national development of strategic importance to Scotland under the National Planning Framework 2 (NPF2); it is ‘Action 1’ on the list. The Planning etc. (Scotland) Act 2006 requires planning authorities to take NPF2 into account in development plans and development management decisions. The Committee therefore expects that local authorities will continue to manage traffic issues in their localities and to work with local communities to consider, develop and maximise any opportunities that are afforded in the provision of new infrastructure. The Committee would welcome comment from the Scottish Ministers in respect of the potential synergy of a national development in a local authority area.

86. In considering the impact of pollution from the new road network, the consultant to the promoter offered the following evidence to the hearings—

Michael Bull, Jacobs Arup Joint Venture: …the overall impact of the scheme is a reduction in exposure [to pollutants] to the population in and around South Queensferry because we are displacing traffic from a more populated area to a new location…we have made some calculations of the carbon dioxide emissions, and there is very little change in emissions compared with most transport schemes because the project is a displacement of activity and is not generating new capacity. The displacement activity involves a slightly greater distance to travel, so a small increase in emissions is predicted based on the calculation method that we have. However, we have done further work that looks at that in more detail, and it suggests that the increase will be relatively small. We also have to consider what would happen if we did not have the scheme and had at some point to close the existing bridge and divert traffic. In that instance, the traffic would have to travel considerably longer distances. We have looked at that situation in a rough outline. I cannot remember the exact figures, but it would be about 15 years until we got back to carbon neutrality: because there would be more emissions in the time that we were diverting traffic, it would compensate for some time for the small increase from the displacement of the traffic to the new location.

Mike Glover, Jacobs Arup Joint Venture: …The intelligent transport system that we will introduce on to the road moderates the traffic—that will also reduce the carbon emissions.28

87. Specifically in relation to Newton Village, the Scottish Government has continued to work with residents and the local authority to seek solutions to managing the impact on the road through the village. The Newton Traffic Management Strategy was published by Jacobs Arup in July 2010. The following recommendations were made:

  • Install ‘Dragon’s teeth’ at each gateway on the entrance to the village
  • Install rumblewave surfacing at the east gateway
  • Renew red surfacing and rumble strips at the west gateway
  • Install Vehicle Activated Signs inside the village near both gateways
  • Signalise the junction of Duddingston Terrace and the A904
  • Formalise the parking spaces at the westbound bus-stop and add one additional parking space
  • Relocate the westbound bus-stop out of the existing lay-by onto the westbound carriageway of the A904. Appropriate road markings should be added to both bus-stops.

88. The packages of measures are not tied into the progress, or otherwise, of the new Forth crossing. The Committee understands that engagement between the parties is ongoing in relation to mitigation—

Ruth Crawford QC: So far as going forward with the proposals to have traffic calming measures in Newton, whether that is to apply to the do-minimum or do-something situation, am I right in understanding that the proposals would have to comply with whatever policies West Lothian Council has in place?

Lawrence Shackman, Transport Scotland: That is correct.

Ruth Crawford QC: And you would require the agreement of West Lothian Council before you instituted any of the measures that are set out in the feasibility study?

Lawrence Shackman, Transport Scotland: Yes. In fact, West Lothian Council would develop the measures on our behalf; it is its road.29

89. Transport Scotland has confirmed in writing to the local authority that—

10.2.2 The Scottish Ministers will incorporate the proposed changes to strategic signing at Junction 2 of the M9 to redirect traffic away from Newton.

10.2.3 The Scottish Ministers will continue to work with West Lothian Council and Newton Community Council to identify potential mitigation measures within Newton.30

90. The Committee is content with the approach now being taken by Transport Scotland towards mitigating impacts on the road network including within Newton village (both during construction and following completion). The Committee recommends that future updates to the Transport, Infrastructure and Climate Change Committee (or its successor Committee) include impacts on the road network and references to Newton village.

Update on public transport issues and strategy

Stage 1

91. Stage 1 Report, paragraph 148 stated - The Committee considers that the onus, therefore, is on the various parties to ensure that the opportunities that are afforded by the public transport corridor are maximised.

92. Stage 1 Report, paragraph 207 stated - The Forth Crossing Bill Committee agrees that it takes time to change habits and travel patterns and it is a sensible approach to start work now on encouraging modal shift.

Current

93. John Swinney MSP, Cabinet Secretary for Finance and Sustainable Growth, gave evidence to the Transport, Infrastructure and Climate Change (TICC) Committee on 21 September 2010. The Cabinet Secretary indicated that work to develop cross-Forth public transport measures over and above those outlined in the Policy Memorandum of the Forth Crossing Bill have yet to start, although Transport Scotland has been in dialogue with stakeholders31. Transport Scotland is to convene a workshop in November on this issue which will involve SESTRAN and relevant local authorities.

94. At the hearings, Transport Scotland stated—

…the promoter recognises that public transport strategies should be encouraged and recognises the need for early implementation. However, as we perhaps all know, funding pressures of course arise from the comprehensive spending review. That being so, and given the current state of financial uncertainty, the promoter is not in a position to implement any public transport measures at the present time. However, in November this year, a workshop is to be held with the local authorities, including the City of Edinburgh Council, to discuss the implementation of the public transport strategy in light of the outcomes of the spending review. At that workshop, it is proposed to assess the prevailing issues and determine a schedule of measures for delivery in the immediate, short and medium term…32

Lawrence Shackman, Transport Scotland: Those schemes and measures have been discussed with the south east of Scotland transport partnership and local authorities during the past year, and I believe that there is general agreement on the individual schemes.33

95. West Lothian Council also questioned the promoter on the issue—

Graeme Malcolm, West Lothian Council: Will you explain the likely consequences for cross-Forth traffic and the workings of the new crossing if the public transport strategy is not delivered within the same timescale?

Alan Duff, Jacobs Arup Joint Venture: …The year that we have tested is the 2017 opening year. In that year, we believe that the network works better and there are no excessive delays or queues on any parts of the network. Obviously, however, if growth materialises as predicted by the model, that improvement will be eroded over time.

David Anderson, Jacobs Arup Joint Venture: That is absolutely right. That underlies the reason why we seek delivery of the public transport strategy in partnership with the three councils and the regional transport authority, recognising where opportunities might occur to deliver it, rather than its delivery simply being funded directly by central Government.34

96. The Assessor noted in his report that certain aspects of objections were outwith his role (see, for example, Group 32: issue 6, traffic and non-motorised users). The TICC Committee has indicated that it will continue to pursue the public transport strategy at future committee meetings.

97. The Committee is content that the TICC Committee (or its successor) is the appropriate Parliamentary committee to pursue this issue.

Update on consultation and engagement

Stage 1

98. Stage 1 Report, paragraph 225 stated - The Committee is content that the consultation undertaken meets requirements under Standing Orders. The promoter is, however, urged to reflect more on others’ understanding of what is meant by ‘consultation’ and ‘engagement’, and how intentions and expectations can be misinterpreted. When expectations are not realised criticisms inevitably emerge.

99. Stage 1 Report, paragraph 230 stated - The Committee is content with the proposals for ongoing consultation and urges the promoter to reflect on the different perceptions that exist in relation to prior consultation. It is important that the standards in the Code of Construction Practice are met if not exceeded.

Current

100. The Committee has noted, from the Schedule of Changes (May 2010), sections 2.2.2 – 2.2.5, that the Government has revised the CoCP to provide for an ongoing communications strategy. The strategy will be in accordance with the National Standards for Community Engagement and a community forum, in which Scottish Ministers will discuss and agree the format and agenda of works, will be established. These changes reflect comments at paragraphs 225 and 227-230 of the Committee’s Stage 1 report.

101. The second revision to the CoCP clarifies how community groups will be able to suggest matters for consideration to the Traffic Management Working Group, the Marine Liaison Group, the Noise Liaison Group and the environmental stakeholder group (section 1.11.4). Revision 3 clarifies that the community forum will be established to allow engagement in advance of works commencing—

Lawrence Shackman, Transport Scotland: We have set up, or we are going to set up, a community council forum in which all the community councils in the close vicinity of the scheme—which I believe are now listed in the Code of Construction Practice—will come together as one group on a regular basis to discuss specific issues relating to the scheme, and will be party to all the activities that go on throughout the whole site that affect the communities. The whole ethos of the communication strategy is to tell people up front what is going to happen so that there are no surprises…The ethos of the communication strategy is to provide information in advance via a number of different mechanisms—whether through the website, information leaflets or meetings. We are also setting up a contact and education centre where individuals such as those to whom you have just referred can drop in to speak to members of the project team on an ad hoc basis.35

102. The Register of Commitments and Undertakings produced by Transport Scotland in August 2010 (on behalf of the Scottish Ministers) quotes from a letter to the Bill Committee, dated 24 May 2010 stating—

I [The Minister] also give my commitment to continuing to build upon what has worked well and on seeking to improve on areas where the feedback has indicated that people wish us to do better. The construction period is some 5 years and I will ensure that we seek input from local community councils for the ongoing engagement with the Community Liaison Team and that we review regularly, and if necessary adapt, these arrangements during the construction period.

103. The Register also states—

We will also involve local authorities and other regulatory bodies, throughout the construction of the project, to provide assurance that the measures required by the Environmental Statement and Code of Construction Practice, are being provided and have advised the Forth Crossing Bill Committee of this commitment. Similarly, we have advised the committee that we will consult with local representative groups such as community councils, throughout the construction period to ensure that any concerns raised by residents with them can be considered and addressed as appropriate.

104. Individuals will also be able to engage with the process through the establishment of a ‘project hotline’—

Richard Greer, Jacobs Arup Joint Venture: I have worked on and delivered a large number of very big infrastructure projects. The largest was the Channel tunnel rail link, which is 80km in length and took seven or eight years to construct cheek by jowl with rural communities and dense urban communities. What we propose for the project in question has been developed from such projects. We have found that the key issue is the importance of early engagement and being able to confirm to people in advance what will happen. That will take away some of the worry about and fear of what might happen, and people will be able to understand what the project will be about. A 24-hour helpline is proposed for the project. That will be monitored, and the outcomes of that monitoring will be shared publicly with local residents. While working on the Channel tunnel rail link, we monitored matters regularly, and very few complaints were made because of the strength of the noise and vibration controls. When complaints were made, they were followed up and fed back.36

Lawrence Shackman, Transport Scotland: The project hotline will be manned 24 hours a day, so if a person wanted to complain by phone, they would get through to someone. They might not get through to someone who could deal with their complaint directly, but the person to whom they spoke would record the complaint and contact someone who could deal with it. Say it was late in the evening and some work was going on out in the Forth that was noisy and someone felt that it was inappropriate or too loud. The person on the hotline would contact the people responsible for that work to see whether it exceeded the allowable noise levels. If it did, they would take appropriate action to deal with it. That information would be fed back to the person who had made the complaint as soon as was reasonably practicable. Whether it was at 10 o’clock at night or first thing in the morning when they made the original phone call, they would certainly be contacted within a reasonable period of time.37

105. Revision 3 of the CoCP also states that the “Scottish Ministers and the contractor will be proactive in identifying opportunities for additional consultation”.

106. The Committee is content with the approach now being taken by Transport Scotland.

Update on subordinate legislation#

Stage 1

107. Stage 1 Report, paragraph 367 stated - The Forth Crossing Bill Committee recommends that the Scottish Government bring forward an amendment at Stage 2 to give effect to the recommendation. (section 76 ancillary provision)

Current

108. The Register of Commitments and Undertakings states—

Having reflected on the matter I [The Minister] can confirm that the Scottish Government wilI bring forward amendments at Stage 2 to give effect to the SLC recommendations in relation to the supplementary, incidental and consequential powers in section 76(1).

109. The Committee is content with this undertaking.

Finance

Stage 1

110. Stage 1 Report, paragraph 337 stated - The Committee also sought information as to how this would affect other capital budgets and this information remains outstanding. The Committee requests that the Minister provide the promised information in time for the Stage 1 debate.

Current

111. The Minister responded in a letter to the Committee dated 24 May 2010, prior to the Stage 1 debate—

The Scottish Government has put it on record that in the four key years of construction on the Forth crossing the expenditure on the project is likely to represent some 13% of the Scottish Government's total capital budget. Excluding capital expenditure on Health and Local Government, the expenditure on the crossing could be as high as 25% of the total Scottish Government capital budget.

We stated in the Policy Memorandum (p 143) that a consequence of a decision to proceed with the Forth crossing will be that "other investment priorities will inevitably be delayed". Until we know the approach of the new UK Government to public expenditure, and know what the forthcoming UK spending review will mean for the Scottish (capital) budget, the Scottish Government cannot give any further commitments on the timing of future capital projects. We expect to be able to announce plans for other capital budgets and projects towards the end of 2010, in the context of a Scottish spending review.38

112. The Register of Commitments and Undertakings states that the “Project team [will] continue to provide a six monthly update on progress to the Transport Infrastructure Climate Change Committee”.

113. The Minister also indicated (paragraph 349, Stage 1 Report) that the Forth crossing project is a level 3 budget item, is shown separately in the budget and, should costs change, parliamentary approval would be required.

114. The Committee is content that the project will continue to be considered and monitored by the TICC (or successor) Committee and through the budget process.

Conclusion

115. The changes reflected above and the commitments given by the promoter can be read across many of the individual objections. The comments of the Assessor (in the following section) should be noted as having taken into account the overarching commitments and undertakings given by the Scottish Ministers to the Committee and to objectors.

116. The Committee is grateful to the Assessor for the thoroughness of his work and the patience, diligence and flexibility which he showed throughout; this was the approach that the Committee hoped would be taken. The Committee has considered the report from the Assessor as well as looking at the extensive written exchanges between the promoter and objectors, together with any oral evidence presented at the hearings. The Committee is clear that the objection process has allowed those affected to bring to the Parliament their concerns and, particularly in the last few months, has facilitated extensive contact and dialogue between parties. Objectors have been successful in securing numerous changes to the scheme – many, but not all, of which are set out in the Register of Commitments and Undertakings.

117. In addition to those changes, the recommendations from the Assessor – which we fully endorse – require a number of other changes to the Code of Construction Practice. That document in particular has been subject to considerable evolution since the Bill was introduced, with the protections it contains significantly enhanced. The Committee also commends the objectors for their diligence, their engagement and for the manner in which they have participated in the process. While not all grounds of objection have been successful, it is clear to the Committee that a significant majority have led directly to or contributed to changes being made to a scheme which received parliamentary endorsement of its general principles at Stage 1.

REPORT BY THE ASSESSOR

118. Standing Orders and Guidance on Hybrid Bills make reference to objections being ‘rejected’ or ‘accepted’. This is the style of language that has been adopted by the Assessor and the Committee. However, it should be noted that where the Assessor has recommended that an objection be dismissed, this should be read against any preceding paragraphs which uphold the commitments and undertakings already given to that objector. The Committee makes clear that the Assessor and Committee acknowledge these and uphold these and feel that there is no further reasonable amendment, adjustment or alteration to be made to the Bill over and above these commitments and undertakings.

Forth Crossing Bill Committee

Report by the Assessor on outstanding objections to the Forth Crossing Bill at Stage 2, Phase 1

REPORT

Contents:

Chapter one: Background

Chapter two: The objections

Annexe A: Grouping of objections

Further, there are references throughout this report to various documents that are pertinent to the evidence. These documents can be accessed as follows:

Document Website Address
Code of Construction Practice (revised May 2010) http://www.scottish.parliament.uk/s3/committees/forthXbill/documents/
FRC_CoCP_Rev1_May2010_CLEAN.pdf
   
Code of Construction Practice - Schedule of Changes (revised May 2010) http://www.scottish.parliament.uk/s3/committees/forthXbill/documents/
FRCCoCPRev1ScheduleofChanges.pdf 
Forth Crossing Bill http://www.scottish.parliament.uk/s3/bills/33-ForthCrossing/b33s3-introd.pdf  
Policy Memorandum http://www.scottish.parliament.uk/s3/bills/33-ForthCrossing/b33s3-introd-pm.pdf 
Maps, Plans and Sections http://www.transportscotland.gov.uk/projects/forth-replacement-crossing/
information-centre/maps-plans-and-sections
Book of Reference http://www.transportscotland.gov.uk/files/documents/projects/forth-
replacement/FRC_Book_of_Reference_BILL_0.pdf

Explanatory Notes (and other accompanying documents*) 
*Financial Memorandum    
*Heritable Interests Statement *Government’s Statement on Legislative Competence
*Presiding Officer’s Statement on Legislative Competence

http://www.scottish.parliament.uk/s3/bills/33-
ForthCrossing/b33s3-introd-en.pdf
Environmental Statement http://www.transportscotland.gov.uk/reports/road/j11223-000.htm
Non Technical Summary Report of the Environmental Statement http://www.transportscotland.gov.uk/files/documents/reports/j11351/j11351-01.pdf
Noise and Vibration Policy Statement http://www.transportscotland.gov.uk/files/documents/reports/j11343/j11434.pdf
Queensferry Junction: Technical Assessment Summary Report http://www.transportscotland.gov.uk/files/documents/projects/forth-
replacement/New_Forth_Crossing__NFC__-
_Queensferry_Junction_Technical_Assessment_Summary_Report_-
_Final_May_2010.pdf
Sustainability Appraisal & Carbon Management Report http://www.transportscotland.gov.uk/reports/road/j11364-00.htm
Health Impact Assessment http://www.transportscotland.gov.uk/files/documents/reports/
j11360/j11360.pdf
Forth Replacement Crossing DMRB Stage 2 Corridor Report http://www.transportscotland.gov.uk/reports/road/j10724a-00.htm
Design Manual for Roads & Bridges Stage 3 Engineering Report http://www.transportscotland.gov.uk/reports/road/j11352-00.htm
Consultation and Engagement Report http://www.transportscotland.gov.uk/files/documents/
reports/j11345/j11345.pdf
Public Information Exhibitions - Feedback and Outcomes Report - Appendix to the June 2009 Report http://www.transportscotland.gov.uk/files/documents/
reports/j11386/j11386.pdf
Forth Replacement Crossing: Guidance on the Parliamentary Process, Compulsory Purchase Process and Compensation http://www.transportscotland.gov.uk/files/documents/
reports/j11012/j11012.pdf
Public Information Exhibitions - Feedback and Outcomes Report http://www.transportscotland.gov.uk/files/documents/
reports/j11011/j11011.pdf
 
Forth Replacement Crossing Route Corridor Options Review http://www.transportscotland.gov.uk/reports/road/j10724b-00.htm
Forth Replacement Crossing Main Crossing (Bridge) Scheme Assessment Report, Development Options http://www.transportscotland.gov.uk/reports/road/j10568c-00.htm
Forth Replacement Crossing Managed Crossing Scheme - Scheme Definition Report http://www.transportscotland.gov.uk/reports/road/j10724c-00.htm
Public Transport Strategy http://www.transportscotland.gov.uk/files/documents/projects/forth-
replacement/Forth_Replacement_Crossing_Bill_-_Stage_1_-
_STPR_-_Public_Transport_Strategy__PTS__-_January_2010.pdf 
Engaging with Communities 2008 http://www.transportscotland.gov.uk/files/NFC_-
_PEP_-_Appendix_1_-_Stakeholder_Consultation_-
_Engaging_with_Communities_-_pdf_version_-
_August_2008.pdf

Forth Crossing Bill Committee

Report by the Assessor on outstanding objections to the Forth Crossing Bill at Stage 2, Phase 1

The Assessor reports to the Committee as follows—

Chapter ONE: background

1. The Forth Crossing Bill (the Bill) was introduced in the Scottish Parliament on 16 November 2009 by John Swinney MSP, Cabinet Secretary for Finance and Sustainable Growth. It is a Hybrid Bill being promoted through the Parliament by the Scottish Government under the procedures set out in Rule 9C of the Parliament’s Standing Orders and the Guidance on Hybrid Bills. The Forth crossing project is being managed by Transport Scotland, the national transport agency for Scotland. (Note: The Scottish Government is the promoter of the Bill and references to the promoter can be inferred to cover Transport Scotland as an agency of the Scottish Government.)

2. The Bill is accompanied by required documents including Explanatory Notes, a Policy Memorandum, a Delegated Powers Memorandum, a Financial Memorandum, and an Environmental Statement. The objective of the Bill is set out concisely at paragraph 4 of the Policy Memorandum as follows-

to provide, in the light of uncertainties about the future availability of the Forth Road Bridge, a continuing and reliable primary road link between Edinburgh and the Lothians and Fife and beyond in order to safeguard the economy, particularly of the east coast of Scotland.

3. The Bill seeks authorisation for the Scottish Ministers to construct a new bridge over the Firth of Forth and to construct and improve associated roads and structures; to authorise the acquisition, or temporary possession and use, of land for construction and improvement works; and for connected purposes.

4. The major works in respect of the proposed scheme are detailed in the Bill in a schedule which describes each element in relation to—

  • construction of a new crossing;
  • construction of new roads (including connections with existing roads);
  • improvement of existing roads; and
  • construction of new means of access or rights of way.

5. To facilitate the implementation of the works, the Bill also provides for the stopping up of lengths of some roads, accesses and other rights of way where they cross, or are on the route of, the proposed scheme.

6. In addition, the Bill enables the Scottish Ministers to construct other miscellaneous works called “the ancillary works”. These are described in its Schedule 2 and include, for example, landscaping and other environmental mitigation, provision of Intelligent Transport Systems, and the creation of site compounds.

7. All the other powers in the Bill are connected with the works. In particular, the Bill grants compulsory purchase powers. These enable the Scottish Ministers to acquire the land or rights in land that are required for the works to be constructed and operated.

8. On Wednesday 26 May 2010, the Parliament agreed a motion (S3M-6391) in the name of Mr Stewart Stevenson-

That the Parliament agrees to the general principles of the Forth Crossing Bill and that the Bill should proceed as a Hybrid Bill.

9. The following motion (S3M-6067) in the name of Mr John Swinney was also agreed-

That the Parliament, for the purposes of any Act of the Scottish Parliament resulting from the Forth Crossing Bill, agrees to any expenditure of a kind referred to in Rules 9C.16.3(b)(ii) and (iii) of the Parliament's Standing Orders arising in consequence of the Act.

10. Because the Bill was approved by the Parliament at the Stage 1 debate, it is now for the Bill Committee to undertake Stage 2 consideration (Rule 9C.11.1).

The Parliamentary Process and the Role of the Assessor at Stage 2

11. The parliamentary process of a Hybrid Bill is described in Standing Orders and the Guidance on Hybrid Bills. In short, the overall purpose of Stage 2 is to consider the detail of the Bill. For this purpose it is split into two phases: consideration of the objections to specific provisions; and consideration of amendments to the Bill. The role of the Committee with regard to the objections considered in the first phase is to act as arbiter between the Scottish Government and the objectors and to report its decisions to Parliament. For this first phase it meets in a quasi-judicial capacity to hear evidence; and it is open to the Committee to have an assessor appointed to assist in this task. For the second phase it meets in a legislative capacity to consider and dispose of any proposed amendments. After both phases of Stage 2 have been completed and reported upon, the Bill moves to its Stage 3. This is where final consideration of the Hybrid Bill, and a decision whether to pass or reject it, is taken at a meeting of the whole Parliament.

12. Appointment of an Assessor: At its 6th Meeting on 24 March 2010, the Committee decided to direct the Scottish Parliamentary Corporate Body, subject to the Bill proceeding to Stage 2, to appoint an assessor to consider and report to the Committee at Stage 2. The Scottish Parliamentary Corporate Body formalised my appointment as Assessor at its meeting on 21 April 2010.

13. Standing Orders (Rule 9C.10.3) set out the functions of the assessor. In short, any evidence, written or oral, provided by the promoter and objectors which falls to be dealt with at phase 1 of Stage 2 can be considered by the assessor on behalf of the Committee. The Assessor must then report to the Committee on this evidence with recommendations on the basis of that evidence.

Lodging of Objections

14. Under Rule 9C.7.1 any person, body corporate or unincorporated association who considers that a Hybrid Bill may adversely affect their private interests may lodge an objection to the Bill. This may include individuals, amenity bodies and others whose interests may be adversely affected by the proposal.

15. At the conclusion of the objection period on 26 January 2010 there were 90 admissible objections lodged. These included one late objection which, for good reason, was judged acceptable. Of the 90 there were 5 objections to the whole Bill and there were 22 to the whole Bill and some of its specified provisions i.e. its detail. The remaining 63 objections were to one or more of the specified provisions. These objections raised well over 1000 individual matters of concern.

16. The objections relating to the whole of the Bill were dealt with at Stage 1. There the Committee was concerned with the general principles of the Bill and considered its content “in the round” without focusing unduly on the points of detail that are more properly a matter for Stage 2.

17. Within that overall context, the Committee indicated a number of matters to be carried over to be dealt with at Stage 2. Thus, for instance, Transport Scotland was required to provide a progress report on the particular problems likely to be experienced at Newton Village (Stage 1 Report, paragraph 134); and, related to that, it was required that particular thought be given by Transport Scotland to the use and effectiveness of the Intelligent Transport System in directing traffic away from the A904 and Newton Village on the south side of the proposed bridge (Stage 1 Report, paragraph 198). I turn to all that in Chapter 2 in the text relating to Group 31.

18. In the light of the concerns of some objectors and some statutory consultees, the Committee considered that the local authorities should have an enhanced role to play in the mechanism to be made available for monitoring and enforcement of the Code of Construction Practice. With that in mind, Transport Scotland was invited to come back with amendments to the Code of Construction Practice before the start of Stage 2 (Stage 1 Report, paragraphs 274 and 275). That revised version was to take account of all changes agreed at Stage 1 (Stage 1 Report, paragraph 294). In response, there has been a succession of revisions the details of which can be found on the Committee’s website. The version before me at the hearings was Revision 2 and it is to that that I make reference throughout this report. A further Revision 3 was made available at the end of September and I note that it incorporates a number of adjustments suggested in the course of the hearings by objectors and others by myself.

19. Moving on from there, at paragraph 412 of its Stage 1 Report, the Committee concluded-

In relation to the objections that relate to specified provisions, the Committee is satisfied that each has demonstrated how the objector might be adversely affected by the provisions of the Bill. Each of these objections will go forward to Stage 2 for detailed scrutiny. These objections cover a broad range of issues although those of noise and vibration in relation to elements of the construction process, loss of amenity, land-take and access are particularly prevalent.

The Treatment of Objections and the Gathering of Evidence

20. At its meeting on Wednesday 16 June 2010 the Committee established a provisional work programme for phase 1 of Stage 2. This included a timetable for the gathering of evidence relating to the objections to specified provisions of the Bill and the setting of dates for the hearing of oral evidence.

21. The gathering of evidence was accomplished according to the following timetable:

Objector groups submitted written evidence to Non-Executive Bills Unit which forwarded that to the promoter

19 July 2010

The promoter responses to the written evidence from the objector groups were received and forwarded to objectors

2 August 2010

The objector groups’ responses to the promoter were received and forwarded to the promoter

16 August 2010

Oral evidence was taken by the Assessor in the Parliament

30 August-13 September 2010

22. A considerable amount of preparatory work for the hearings was undertaken by members of staff of the Non-Executive Bills Unit, by the objectors, by the promoter and by their respective witnesses. Thus, for instance, the clerks to the Committee held public meetings, in South Queensferry (21 June 2010) and in the Parliament (28 June 2010), to which all objectors were invited in order to explain the process at Stage 2. In the course of these, and in all of the numerous subsequent meetings which took place on an individual basis, the parties were made well aware of the Committee’s strong preference that each objector and the promoter try to resolve their differences at the earliest opportunity and without need for arbitration by the Committee.

23. The Committee had also made clear that certain issues could not be raised in any subsequent evidence provided by either the promoter or the objectors. These issues included: the cost of the project; the relative merits of a tunnel versus a bridge; information that is provided in the Environmental Statement; and the consultation undertaken by the promoter.

24. Following discussions, each of the objectors with concerns relating to one or more of the specified provisions of the Bill was allocated to one of 48 groups each of which was required to identify a lead objector tasked with co-ordinating the concerns of the objectors in the group. For the purpose of grouping, objections were treated as similar if they gave similar reasons in their opposition to similar aspects of the Bill. This procedure ensured that all legitimate arguments have been considered while avoiding unnecessary repetition. It was also made clear that it was open to the parties to rest on written submissions rather than appear to give oral evidence.

25. At the public meetings and in subsequent meetings with individual objectors it was explained to the objectors and to the promoter that-

The reason for the exchanges of written evidence is to make oral evidence-taking clearer, focussed and more easily managed. Oral evidence will only be taken on issues where objectors and the promoter cannot agree in their written evidence.

26. With this and related matters in mind, the Committee agreed on 16 June 2010 that the Assessor might take such other reasonable actions as he considered necessary for the fair and proper conduct of the hearings and to allow him to consider and report on the evidence.

27. On 2 August 2010 the promoter provided some 3,000 pages of written evidence together with additional appendices, much of it repetitive and presented in a fashion which was less than user friendly. The written evidence from the objectors amounted to some further 2,000 pages. It was to be expected that the objectors might have some difficulty in understanding what was appropriate to the proceedings. However, the promoter was aware that the hearings were scheduled to commence in the last days of August and it is difficult to understand how it could have failed to grasp that its approach to the provision of written statements placed in serious doubt whether it would be possible to ensure fair and proper conduct of the hearings and allow this report to be submitted within 3 weeks of the close of the hearings as required by the Committee.

28. In preparation for the hearings, in the week commencing 2 August 2010 and beyond, further meetings were held between the Committee’s clerking support, objectors and representatives of the promoter at which the details of the proposed timetable and the format for providing oral evidence were discussed. For my part, during this period, I reviewed: the objections and relevant written evidence from the objectors; the responses from the promoter; and the rebuttal written evidence from the objectors.

29. As further preparation for the hearing of oral evidence and the preparation of my report, I made a tour of the objection sites and their surrounding areas on 1 June 2010 guided by the Senior Assistant Clerk. My itinerary followed that arranged for the Committee in February following its first meeting. The purpose of the tour was to ensure that I was fully acquainted with the physical aspects of the proposed routing of the scheme as well as the relevant objection sites and their vicinities. In addition to that preliminary fact-finding inspection I have made unaccompanied visits to the objection sites before, during and after the hearings to see on the ground matters which had been drawn to my attention in the course of the written and oral evidence. By the end of the hearings I had visited every site, some on more than one occasion, at different times of the day and in varying weather conditions.

The Conduct of the Hearings

30. The taking of oral evidence at the hearings within phase 1 of Stage 2 was adversarial in style. The principal objective was to obtain, and have recorded, best evidence in order that my findings, reasoning and recommendations to the Committee can be seen to be transparent and soundly based. Bearing in mind the over-riding need to examine all the evidence in an open and fair manner, the proceedings followed a pre-announced structure. Within that general context, I sought to maintain an informal atmosphere designed to put all of the witnesses at their ease, particularly those members of the public with little, or no, prior experience of these, or similar, proceedings. Those objectors who were not legally or professionally represented were at no disadvantage.

31. The general principles of the Bill have been settled by Parliament and, within that general context, the focus at each hearing session was on examining how, if at all possible, outstanding issues might be resolved with, or without, further commitments from the promoter and/or amendments to the Bill. Evidence was limited strictly to those areas raised in written evidence where the objectors and the promoter had not been able to come to agreement.

32. In general, the evidence from the lead objector was heard first followed by the promoter and each was the subject of cross-examination with the opportunity of re-examination. On occasion, I had a number of questions of my own. At the end of the oral evidence for a particular group, the lead objector and the promoter were invited to make a closing statement stating concisely, and for the record, their final positions including how, in their respective views, the differences between them should be resolved. The promoter presented its closing statement before that of the lead objector. In accordance with the wishes of the Committee, all closing statements were limited to five minutes. Where the objectors found difficulty with the normal procedure, with the consent of the promoter, I allowed the normal rules to be relaxed, in the interest of obtaining best evidence for my report to the Committee.

33. Throughout the proceedings I bore in mind the need to take evidence in a manner consistent with Parliament’s established procedures and also in accordance with the requirements of the Human Rights Act 1998 and the European Convention on Human Rights.

The Structure of the Report

34. In considering the array of concerns expressed by the objectors my principal focus in this report has been on the Bill itself. Following my review of all the written and oral evidence before me, I have set out my reasoning and conclusions on the amendments, adjustments or other alterations to the Bill which are sought by each of the groups of objectors. However, many of the concerns of the objectors are not with the provisions of the Bill itself but with the impact of the mitigation set out in the Environmental Statement. Bearing in mind the terms of Section 66 of the Bill, I have made findings related to these. Section 68 of the Bill provides that Ministers may amend or replace the content of the Code of Construction Practice which forms part of the Environmental Statement. With that in mind, I have included findings on some parts of the content of the Code along with some suggestions for inclusion in further revisions of the text.

35. My recommendations on the Bill, and my findings regarding the Code of Construction Practice and other matters, have been reached following consideration of all of the very considerable, and sometimes complex, evidence provided on the main issues raised by the objectors. Where objectors have elected to rest on their written submissions all of these have been taken fully into account. Given that the written and oral evidence provided to the Committee at this phase of Stage 2 is available on the Committee’s website, the report does not rehearse every argument pertaining to each of the individual matters raised in evidence. Where I have summarised that evidence I have focussed on those matters particular to the objections under consideration drawn to my attention in the written and oral evidence.

36. This report does not address any issues raised in objections that have been withdrawn. A few objections, and matters within objections, were withdrawn in the run up to the hearings and beyond as a result of continuing negotiations between the promoter and objectors. Then again, if an issue was resolved during oral evidence, that issue has not been addressed in my report.

37. In the following paragraphs, which complete Chapter 1, I provide some background and general conclusions which may be helpful to the Committee in its consideration of the detail of Chapter 2.

Preface to Hearings

38. In order to provide a context for what followed and in an effort to reduce the need for repetition of evidence, on the first morning of the hearings I asked the promoter to provide an overview to include the following aspects of the project: the choice of route and the affected roads; the issues around a direct link to the M9; the issues around the selection and location of the haul road, including its location, construction and use; information that could be provided briefly about the construction compounds; a description of how traffic modelling works, including detail of the software; and a description of traffic flows both during construction and once the crossing is operational.

39. The response from the promoter summarised a mass of technical detail clearly and concisely in plain English. I set it out here in order that the Committee can be spared repetitive reference to its content in the text of Chapter 2-

There are about nine key issues that you would like me to run through. First is the choice of route and direct link to the M9. The process for the development of road and bridge projects is outlined in the “Design Manual for Roads and Bridges”, which is the national standard for road and bridge schemes. That is the process that has been followed for the Forth replacement crossing—FRC—project.

The process comes in three stages and results in design proposals being developed and examined in increasing levels of detail from stage 1 through to stage 3. In simple terms, stage 1 is preliminary, stage 2 is detailed and stage 3 is the preferred or proposed scheme. In stage 2 of the process, we looked in some detail at two options both north and south of the Forth for the route of the connecting roads, sifted down from nine possible options that were originally identified. Reports detailing all the work on the options sifting and options developed are available on the project’s website.

The proposal that we bring forward is option 1 north and option 1 south. We understand that a number of objectors would have preferred option 2 south, which provided a direct link straight south to the M9. That direct link option was not taken forward for a number of reasons, including cost, environmental impact such as land take, and crucially the fact that it did not provide a suitable connection for traffic accessing the A90 to and from Edinburgh.

Even if that option were progressed instead of our proposals, a junction at the position of the current Queensferry junction would still be required. In reality, that would result in a large increase in traffic on the A904 of up to around 25,000 vehicles per day travelling east to access the A90 at the Echline junction. The option that we propose results in a large reduction in traffic along that section of the A904 from 15,500 down to around 5,500 vehicles per day in the opening year of 2017.

We have done a large body of assessment work, all reported in the “Design Manual for Roads and Bridges” stage 2 report on the pros and cons of the two options, and we have no doubt that the chosen route of the southern approach road is the right one.

On the location of the Queensferry junction, feedback from public exhibitions in 2009 informed further design development of the scheme. That resulted in the inclusion of the public transport links connecting the Forth road bridge to the A90. The inclusion of those public transport links means that the Queensferry junction can be moved back to its natural location at the point at which the approach road and the A904 cross each other to the west of South Queensferry. That is the best location for the junction and allows for all necessary movements, with the added benefit of substantially reducing traffic on the A904 east of the junction. Additionally, the changes to the Queensferry junction allow a solution to be engineered that substantially lowers the height of the main road by up to 6m as it passes south of South Queensferry.

On the selection of the haul road, we understand the concerns that people have about its location and operation in South Queensferry. The location that we have identified for the haul road access on to Society Road is the best possible location for it to intersect due to the topography and geological conditions in the area. A number of alternatives have been suggested by objectors and, while they may seem to be suitable solutions, they often cannot take account of the challenging topography and geology in the area.

The alternatives also result in other issues, such as an even greater impact on local communities such as those at Linn Mill, or require the loss of areas of ancient woodland. Two of the alternatives also do not recognise the multiple functions of the haul road and its need to access not just Society Road but the southern approach road area. In essence, if the haul road is moved a substantial distance west, it would necessitate a second haul road for access to that area of the construction. We have specified where it will connect with Society Road, and we can also confirm that it will not be able to disturb the area of environmental mitigation immediately to the east of Linn Mill. That area is therefore excluded as a possible location for the haul road, a fact that has been welcomed by the residents of Linn Mill.

With regard to the compound locations, most people will be aware that three separate compound locations have been identified. One is situated to the north of the works to junction 1A; one is located to the west of the southern approach road to the west of South Queensferry, which is known as the main compound; and one is located on the north side of the Forth to the north-west of the water treatment works.

We have welcomed and are appreciative of the constructive and helpful co-operation from landowners when discussing the locations of the construction compounds. In respect of the main compound on the south, we have listened to the concerns of the local community and have made strong representations to the Parliament for the westerly site rather than the original Echline fields location. We are pleased to be able to confirm that, subject to parliamentary agreement, the main compound will be to the west of the southern approach road.

I turn now to traffic modelling and how it works. Transport models are used to forecast travel by different modes of transport. They represent travel between places by road and public transport at different times of the day, and modelling is undertaken at both strategic level and on a local basis. Strategic modelling was undertaken using the transport model for Scotland. That model forecasts changes in travel mode as well as the travel route and, for some trips, changes to destination. Future-year growth in travel demand is related to land use, which influences how the demand for travel will vary in the future. Local traffic modelling was undertaken using a more detailed local area microsimulation model. That was used to test junctions to evaluate the performance of design proposals and future-year traffic volumes

Traffic flows during operation have been assessed. Once the Forth replacement crossing is operational, it is anticipated that the improved operational efficiency of the network will attract additional traffic through the combined effect of traffic rerouting from crossings further up the Forth and redistribution of trips to and from newly accessible employment opportunities and infrastructure. That will lead to an increase of around 9,000 trips per day across the bridge and around 3,000 more trips per day on the A904 through the village of Newton in 2017. However, there will also be some traffic reductions along the A904 to the south of South Queensferry of approximately 10,000 vehicles and along the B800 towards Kirkliston of approximately 2,200 vehicles.

On traffic flows during construction, we recognise that local people are concerned about the period of construction, and the code of construction practice places restrictions on the contractor as to how he may access the works. Furthermore, the contract documents detail roads and communities that construction vehicles whose unladen weight is more than 3 tonnes must avoid. They include Kirkliston, Broxburn, Winchburgh, South Queensferry, North Queensferry, Inverkeithing and Rosyth. The proposed works are generally located adjacent to the existing main road network. Most construction traffic will therefore be able to use the roads to access the works site without any significant restrictions.

The code of construction practice is the document that controls the contractor’s activities during construction. Since the bill’s introduction, two revisions have been made to that document, the first of which was made at the end of stage 1 of the bill. The main revisions related to consultations with statutory bodies, including the local authorities, and consultations with those who will be affected by construction works and with the public. We have been developing proposals for different working groups to provide oversight of traffic management, marine works and construction noise, and those were included in the revision. Also included was a commitment to publish information on the project website, including the environmental management plan and monitoring records.

The normal working hours for the road construction were reduced in line with the committee’s request, and some other changes were also made in response to comments from various objectors. A second revision was issued in draft form last week as we continue to consult with statutory bodies and other organisations on the revisions. The draft takes further account of comments from various objectors and the updated version has also been issued to them, with correspondence identifying the specific changes that have been made in response to their objections. A copy of that has also been made available on the Parliament and project websites.

The most significant change in revision 2 is modification of the approach to managing construction noise, removing the previous provisions relating to consent under the Control of Pollution Act 1974, and including maximum noise levels. Additionally, a number of other changes and enhancements have been made to improve clarity, including compliance with appropriate best practice and achieving the code’s minimum standards, amendments to the public consultation section, more references to cyclists in the traffic management section, and other minor wording changes as a result of objectors’ concerns.

With each revision, a schedule of changes has been provided to help those who read the document to identify the changes that have been made. It is intended to finalise the code of construction practice following receipt of any further comments from consultees and any recommendations made by the committee.

Our proposals include significant enhancements to public transport. On the north side of the Forth, Ferrytoll park and ride will be improved, while on the south side, priority for buses on the B800 and dedicated links to the A90 will be included. Those will be in addition to the existing Forth road bridge as a dedicated public transport corridor. Extra facilities will also be provided for running buses on the hard shoulder of the M90 north of the Forth.

There is some confusion about the relationship between the public transport strategy and the bill. The strategy sits alongside the bill and sets out a series of schemes and measures that are designed to encourage travel by modes other than private car. Those schemes and measures have been discussed with the South East of Scotland Transport Partnership and local authorities during the past year, and I believe that there is general agreement on the individual schemes. They will mainly be implemented once the crossing is open to manage the travel demand that will arise from future development in and around the Forth. We are also working with Fife Council to deliver proposals for a park and ride at Halbeath. It is clear that the full list of schemes and measures can best be realised by working collectively with the councils in SEStran, and we propose to hold a workshop in November, once the details of the spending review are known, to undertake an assessment of the prevailing issues and determine a pragmatic, prioritised schedule of measures for delivery in the immediate, short and medium term.

In conclusion, we are grateful for the constructive and pragmatic approach taken by objectors, including landowners. We recognise and appreciate the fact that several individuals have invested time and effort to meet us and discuss their concerns and issues, and that has enabled several resolutions to be reached in advance of the stage 2 hearings.

40. In the course of the hearings the promoter was the subject of considerable, penetrating cross-examination by the objectors on the matters summarised above. The detail of the written evidence and the official record of the oral proceedings are to be found in that part of the Parliament’s website which is devoted to the Forth Crossing Bill; I consider the particulars of the issues raised by each group of objectors in Chapter 2; and I make some general conclusions in paragraphs below. However, before that I have some observations on the nature and extent of community engagement undertaken by the promoter and what it has committed to in the future.

Community Engagement

41. The Guidance on Hybrid Bills notes that it is imperative that all consultation with relevant parties should be meaningful and effective. Consultation should be open, accessible, helpful, clearly timetabled and, where possible, adopt and demonstrate innovative and best practice. With that in mind, the promoter has developed a strategy entitled Engaging with Communities which it states has been implemented during development of the project and is in accordance with the National Standards for Community Engagement. An overview of the engagement undertaken during development of the project is provided in paragraphs 165 to 224 of the Policy Memorandum and in the Consultation and Engagement Report published in November 2009.

42. In its Stage 1 report the Committee noted that it-

`... is content that the consultation undertaken meets requirements under Standing Orders. The promoter is, however, urged to reflect more on others’ understanding of what is meant by ‘consultation’ and ‘engagement’, and how intentions and expectations can be misinterpreted. When expectations are not realised criticisms inevitably emerge.” (paragraph 225)

43. Looking forward to Stage 2, it went on to report that-

The Committee is content with the proposals for ongoing consultation and urges the promoter to reflect on the different perceptions that exist in relation to prior consultation. It is important that the standards in the Code of Construction Practice are met if not exceeded. (paragraph 230)

44. A summary of the engagement with the objectors is provided by the promoter in an annexe to each of its witness statements. The withdrawal of an objection requires that the objectors, as well as the promoter, are willing to enter into negotiations with a view to reaching sufficient in the way of common ground. Clearly an objector who persistently adopts an unreasonable position, and there were some of those, can represent an impenetrable barrier to making progress regardless of the commitment and resources devoted to the task by the promoter. I am in no doubt that those charged with the task of negotiating with objectors in the run up to Stage 2 have undertaken the task with skill, vigour and enthusiasm; and the promoter has had some notable successes in showing how the public interest can be achieved without disproportionate detriment to legitimate private interests. The Committee may be concerned that, despite this effort, so many objections remain on which it is required to arbitrate. I find that most of the residual difficulties can be traced back to the approach adopted by Transport Scotland at Stage 1 elements of which the Committee found unacceptable.

45. Looking to the future, Section 2 of the revised Code of Construction Practice deals with what is termed Liaison and Public Information. That incorporates clarifications regarding the scope and purpose of community engagement which reflect commitments given by the Minister in his response to the Committee regarding the Stage 1 Report (paragraphs 225 and 227-230). As part of its commitment to engaging with communities during construction, the promoter has undertaken to deliver a programme of what are described as high quality, effective and sustained communications. These will include: an information website; project briefings and site visits; the issue of a newsletter; and notification to occupiers of nearby properties a minimum of two weeks in advance of planned construction works that may affect them.

46. While recognising that engagement with communities cannot extend as far as making their views determinative, the promoter has made it clear that it sees the benefit of conducting a constructive dialogue with those likely to be affected by the project. At the hearings the promoter repeatedly gave a commitment to individuals and community groups that it intends to go well beyond the provision of information and bland consultation and engage in proactive engagement with communities thereby taking advantage of local knowledge and taking forward the project in partnership with those affected by it.

Aspects of the Bill

47. Moving on to the details of the objections properly made and not withdrawn, the following paragraphs provide some further context for my discussion of individual objections; and they are set out here principally to avoid the need for repetitive text in the reasoning and conclusions for individual groups of objectors in Chapter 2.

48. A number of objections are concerned with matters which emerge from Part 1 Works and Part 2 Bridge Proportions of the Bill including: the choice of South Corridor Option 1 as the preferred route; the relocation of the Queensferry Junction and the Echline Gyratory; and the route of the haul road to be used for the transport of operatives and materials during the construction period. I reach some general conclusions on these before moving on to other aspects of the Bill itself including Part 3 Land; Part 4 Taking Title to Land; and Part 5 Powers to Enter and Use Land. Of particular concern to some objectors is the content and proposed application of Part 6 Compensation. However, most of the concerns raised by the objectors about the project and the amendments, adjustments or other alterations to the Bill which are sought by them relate directly or indirectly to Environmental Matters to which Part 9 of the Bill refers. The vast majority of these fall to be considered as suggested alterations to the Code of Construction Practice which forms part of the Environmental Statement.

The Works and their Construction

49. Section 1 of the Bill provides Ministers with the powers to carry out principal and ancillary works referred to as Forth Crossing Works. A number of objectors simply want the southern landfall and the associated works to be located at a greater distance from their homes. Their principle concerns relate to: the choice of South Corridor Option 1 as the preferred route; the relocation of the Queensferry Junction and the Echline Gyratory; and the route of the temporary haul road to be used for the transport of operatives and materials during the construction period. At the hearings the promoter was subject to lengthy and rigorous examination on these and related matters.

50. The Choice of South Corridor Option 1: An assessment of options and the reasoning for their rejection is provided in the DMRB Stage 2 Corridor Report and the Managed Crossing Scheme – Scheme Definition Report. In planning for the southern connecting roads three options were seriously considered: South Route Corridor Option 1; South Route Corridor Option 2; and South Route Corridor Option 4b. An array of traffic, engineering and environmental factors as well as an economic evaluation were taken into account.

51. Although the scheme favoured by the promoter has some of the characteristics of a “distress purchase”, none of the groups of objectors took issue with the fact that the project is an integral part of the National Planning Framework, and that it will make a contribution to the emerging strategic motorway network. Their basic position is that a different line which puts an adequate distance between the project and their properties will be sufficient to remove most, if not all, of their objections. With that in mind, South Route Corridor Option 2 which would run west of Linn Mill is favoured by many of the objectors.

52. The main reasons presented for selecting South Route Corridor Option 1 over South Route Corridor Option 2 can be summarised as follows. For geological and engineering reasons Beamer Rock, identified in section 2 of the Bill, is critical to making the connection between the north and south bank of the Forth. A realignment so that the landfall is to the west of Linn Mill is not a practical proposition because it would require a fundamental, costly and time consuming reworking of all aspects of the Forth crossing works. Although South Corridor Option 2 provides more direct access to the M9, traffic modelling indicates that connection to the A90, east of Echline junction, would not be as good as with South Corridor Option 1. A substantial volume of traffic using the Forth replacement crossing would require access to the A90 to, and from, Edinburgh; and a direct link to the M9 would not remove the requirement for a junction in the vicinity of South Queensferry to connect with the A904. In order to accommodate the additional traffic either the A904 would have to be dualled as far as a substantially modified Echline Junction or a new road passing to the south of South Queensferry would have to be built.

53. On environmental grounds, as the objectors pointed out, South Corridor Option 2 is better, not least in terms of overall noise effects, because it would divert traffic away from the A90 south of South Queensferry. However, South Route Corridor Option 1 does not cut through open, rural landscape; it requires less in the way of new infrastructure than its alternatives; it passes through less sensitive areas; it crosses fewer pedestrian/cyclist routes; it has fewer ecological impacts; it has less potential for impacts on sites of geological importance; and there is less in the way of flood risk and water quality impacts.

54. As far as the economic evaluation is concerned, under South Corridor Option 2 aproportion of Edinburgh bound traffic would assign to the A904 as a more direct route from the Forth replacement crossing to Scotstoun Junction and Edinburgh by way of the A90, leaking from the new strategic network linking to the M9 and M9 Spur. The traffic cost benefits, including those attributed to the traffic from Fife using the A904, result in a higher Net Present Value (NPV). However, South Corridor Option 2 is much more costly. As a result there is a broadly equivalent Benefit to Cost Ratio (BCR) when compared to those option combinations containing South Corridor Option 1.

55. No group of objectors favoured exactly what had been considered as South Route Corridor Option 4b. However, objectors in Newton proposed a couple of alternatives both of which would divert the forecast increase in traffic away from the village. The first is an undivided two way road between the M9 adjacent to Duntarvie Castle Ruins and a position approximately half a mile east of Newton Village. However, even if there are savings of £13 million made by modifications at Junction 1A, the promoter has identified an additional cost of between £24.6 and £32.6 million to be borne if this alternative were to be implemented.

56. The second alternative would be built to a considerably higher, probably motorway, standard. However, as the promoter pointed out, it would be attractive to commuters and others and could divert several thousands of vehicles every day into Edinburgh with inevitable consequences for traffic management at areas already congested including the Barnton and Maybury junctions.

57. The Queensferry Junction and Echline Gyratory The location of the South Queensferry Junction changed as the project has been refined with the result that it is proposed that it now be sited closer to Echline Corner than previously proposed. It is perfectly understandable that those in the vicinity should have concerns about that and, related to that, the positioning of the associated gyratory. However, the promoter has explained that facilitating traffic flows and public transport links, as well as compliance with engineering standards and safety factors are amongst the advantages of moving the junction further to the west and closer to Echline Corner. The solution now favoured by the promoter takes account of matters central to the design of the road including: junction spacing, the width of carriageways and horizontal and vertical curvature. Traffic modelling, including extensive assessments adopting a range of assumptions on traffic flows, has demonstrated that the junction and gyratory will operate satisfactorily.

58. The Temporary Haul Road The Bill allows for the temporary acquisition of the land on which the haul road would be built. Schedule 1 states that the road will be a temporary means of access. The land required for the haul road includes Plots 1205 and 1234 (part of the garden at Inchgarvie Lodge) which are listed in Schedule 10 of the Bill as being used temporarily for purposes in connection with the temporary haul road.

59. The purpose of the haul road, which will run on the west side of the main route, is to take personnel and materials from the construction compound in the vicinity of the A904 down to the southern shore of the Forth. A number of other routes were proposed by the objectors. Of these, two have been researched in some detail.

60. One proposal would connect to Society Road west of Linn Mill and thus be at a considerable distance from properties at Echline, Springfield, Clufflats and Clufflats Brae. However, this proposal has a combination of disadvantages relating to gradients, sight lines, grade curvature and there are associated costs including those incurred by widening a further stretch of Society Road. Even if this alternative were a practical proposition, which it is not, there would be unacceptable environmental impacts notably at the Linn Burn and at East Shore Wood which is listed on the Ancient Woodland Inventory.

61. Another set of proposals, differing in their detail, would have the haul road run west of Inchgarvie Lodge and the viaduct, east of Inchgarvie House, then in a cutting down to east of Linn Mill Burn, and then with a direct connection across Society Road to the coast. Again gradients, sight lines, grade curvature and the associated costs are crucial disadvantages. To these must be added the considerable expense of creating the necessary trench and its subsequent reinstatement; and any complications which would arise in constructing the viaduct piers on the Inchgarvie land.

62. I accept that the promoter has been driven to the current alignment of the haul road which will run through the narrow area between Clufflats and Inchgarvie Lodge because there is no other option capable of implementation at other than massive additional cost. That has inevitable consequences for land in Echline field for which housing has previously been proposed and for properties already built in the vicinity. With the latter in mind, considerable attention has been given to mitigation. Thus, for instance, the construction compound will be sited to the west of the main line and the route will run as far away from Echline, Springfield and Clufflats as possible; the road will have tarmac for the first 200m of the routing to reduce the amount of dust and to improve drainage; and 3 metre high solid fencing will be built at Inchgarvie Lodge and adjacent to the Clufflats properties to provide acoustic and visual screening.

63. Drawing all of these matters together, the promoter has explained in its written submissions how its thinking on the location of the South Queensferry Junction and the associated gyratory has evolved as the project has been refined through stages 1, 2, and 3 of the Design Manual for Roads and Bridges (DMRB). Nevertheless, numerous objectors to the specified provisions which are the focus of attention in this first phase of Stage 2 of the Bill remain concerned about the proximity to private residences of parts of the project itself and the works necessary to secure its completion. It is perfectly understandable that those with homes close to the project should experience stress and anxiety over the possible impact of noise, vibration, dust, light and air pollution, and visual intrusion on their amenity and the peaceful enjoyment of their homes. It is also readily understandable that before going on to question the efficacy of particular aspects of mitigation they should challenge the need for parts of the project and its construction works to be located close to their properties.

64. When I review the evidence, on the siting of the road corridor, given the additional cost associated with South Corridor Option 2 and its similarity with South Corridor Option 1 in terms of BCR, I conclude that North Corridor Option 1 paired with South Corridor Option 1 offers, overall, the preferred solution. As far as the Newton options are concerned, I find that traffic, engineering, environmental and cost factors also favour the choice of South Corridor Option 1.

65. Moving on from there, I conclude that the advantages now evident as the project has evolved are sufficient to justify the repositioning of the Queensferry Junction and Echline Gyratory to their current proposed location.

66. As far as the haul road is concerned, that is an essential element of the works required for the construction of the project. A range of alternatives have been researched, and the underlying geology and difficult topography involve difficulties of vertical and horizontal alignment which can be overcome only at a cost which presents an insuperable obstacle to implementation. I conclude that the promoter has been driven to what is now proposed not because it is an ideal solution but rather because there is no other practical alternative.

Land Acquisition and Compulsory Purchase

67. With regard to Part 3 Land, to Part 4 Taking Title to Land, to Part 5 Powers to Enter and Use Land Use and to the accompanying Schedules which are introduced by section 1 of the Bill, in evidence the promoter pointed out that its overriding duty is to ensure that the Scottish Ministers have appropriate rights over land in order to discharge their obligations under the Bill. It was explained that there are four means available to obtain those rights. The first is a management agreement, the second is a servitude, the third is a lease, and the fourth is acquisition. The least intrusive to the owner of the property is a management agreement, and the most intrusive is an acquisition. In order to create a servitude it is necessary to show that it complies with the praedial rule and that it is not repugnant with ownership. The praedial rule is a requirement that the servitude must relate to the land itself and must benefit another identified property. Repugnant with ownership means that a servitude cannot deprive the owner of being able to make meaningful use of the land. The parties to a lease have much more freedom and flexibility, and under a lease the owner of the land would have no obligations to the Scottish Ministers as tenant, other than the basic obligation to provide the land the use of which would be clearly defined.

68. In a number of the objections there is an obvious tension between what the promoter regards as necessary to perform adequately its obligations to the Scottish Ministers with regard to certainty in planning for and subsequent completion of the project on time and within budget and the interests of private persons whose land is required for the achievement of these purposes. I accept that the promoter has paid attention to the legitimate concerns of the objectors and much has been achieved by negotiation to the mutual satisfaction of the parties. Where that has not been possible, I deal with the merits of each case in Chapter 2. My conclusions are that subject to any agreements reached there need be no amendment, adjustment or other alteration in relation to the Bill regarding the matters raised. Accordingly, I recommend that the Committee dismiss these objections.

69. However, regarding Group 45 (objector 54)- the promoter should look again at its proposals with reference to Plot 204, Plot 209, Plot 213, and another Plot. While I do not conclude that any changes to the Bill are without doubt necessary, I do not rule out that these may emerge from that reappraisal and further negotiations with this objector.

Compensation

70. With regard to Section 6 of the Bill, on the basis of the evidence presented by Transport Scotland and the Minister at Stage 1, the Committee was content that objectors would be compensated appropriately in respect of, generally speaking, any land compulsorily acquired and, where no land was acquired, for any reduction in value of the land caused by physical factors associated with the scheme. The Committee accepted also that the Scottish Government has made adequate allowance for these payments while noting that the £10 million fund set aside for compensation is an indication rather than a cap or a ceiling.

71. In July 2009 Transport Scotland’s Forth Replacement Crossing Project issued a guide which provided information and advice about the statutory procedures that the Scottish Ministers and Transport Scotland propose to follow for the compulsory purchase process. The guide also contains information on compensation where property is acquired and where property is affected either during the construction of the project or once the bridge and roads are operational. Of particular relevance to some of the text in Chapter 2, the guide confirms that where Scottish Ministers seek powers to purchase land on a compulsory basis that property has been identified in a Book of Reference and in the land plans which accompany the Bill making reference to plot numbers.

72. The law and procedure relating to compulsory purchase and compensation is complex. The Bill adopts the standard procedure for assessing compensation for land and rights acquired that are contained in existing legislation, particularly the Land Clauses Acts and the Land Compensation (Scotland) Acts 1963 and 1973. This means that the Bill is subject to the same procedural rules, safeguards and requirements regarding compensation as apply generally.

73. The project is large and has numerous components, but there is no evidence before me to suggest that eligible objectors should receive compensation on any other basis than applies throughout Scotland. However, not every eventuality brought to my attention appears to be covered in a manner which is entirely satisfactory. In difficult cases, for example, with respect to voluntary purchase, I recommend that the promoter, in its role of “good neighbour” deals sympathetically with each particular case on its individual merits.

Environmental Matters

74. Section 66 of the Bill -Mitigation of Environmental Impact- requires that Ministers must do everything which is reasonably practicable in order to ensure that the environmental impact of the construction and operation of the Forth crossing works is not worse than the residual impact identified in the environmental statement.

75. A Hybrid Bill must be accompanied by an Environmental Statement which summarises the findings of the Environmental Impact Assessment. The Environmental Impact Assessment undertaken for this project was prepared in accordance with the Environmental Impact Assessment Regulations 1999 as amended. Of particular importance with regard to the objections dealt with later in this report, Chapter 23 of the Environmental Statement sets out the mitigation measures which are necessary to protect the environment before construction starts, during construction, and during the operation of the proposed project.

76. At paragraph 249 of the Committee’s Stage 1 Report it is noted that-

The Committee is satisfied that the requirements of Standing Orders have been met in relation to the Environmental Statement and notes the undertaking given by Transport Scotland that—

“The environmental statement is the statement that we have produced, but there is an undertaking that, if changes are made, they will be assessed to ensure that they are no worse than the emerging impacts from the proposals in the environmental statement.”

77. With that unequivocal and binding commitment firmly in mind, I move on to Section 67 of the Bill.

78. Section 67 -Compliance with code of construction practice and noise and vibration policy- requires that Ministers must do everything which is reasonably practicable in order to ensure that the Forth crossing works—

(a) are carried out in accordance with the code of construction practice, and
(b) operate in accordance with the noise and vibration policy.

79. It is expected that construction of the components of the project will be undertaken at various locations over the period 2011-2016 with related matters dealt with over a short period beyond that. The contractors involved must comply with the Code of Construction Practice which, in compliance with a determination by the Presiding Officer made under Standing Order Rule 9C.3.2.(g)(iii), is a part of the Environmental Statement. Further detail on what is required is provided in the Guidance on Hybrid Bills at paragraph 2.35 and paragraph 2.36.

80. The Committee took evidence on the Code of Construction Practice at Stage 1. The version before the Committee was lodged on 17 November 2009; and the evidence taken by it is dealt with at paragraphs 251-294 of the Committee’s Stage 1 Report. At Stage 1 the Committee was interested in the generality of the Code. It pursued a range of issues both in oral questioning of witnesses and in an exchange of correspondence with Transport Scotland. The detailed and localised matters were left to be dealt with when considering the objections to specified matters at Stage 2. In the meantime, the Committee required that an amended version of the Code be produced taking account of all of the changes agreed to date. In response to that, a Revision 1 of the Code of Construction Practice was provided by the promoter dated May 2010.

81. On the first morning of the hearings, on 30 August, I took evidence on the adjustments contained in a further Revision 2 dated August 2010. It is against the content of this Revision 2 of the Code that I have assessed the merits of the relevant objections lodged and the position of the promoter as made known by the end of phase 1 of Stage 2. All references in my report to the revised Code refer to Revision 2. A further Revision 3 was posted on 29 September. I have scanned the alterations but, reluctantly, I must leave to the Committee a consideration of the merits of the most recent set of amendments.

82. Returning to the terms of section 67 of the Bill, there was considerable debate at several of the hearing sessions on the proper interpretation to be placed on the term reasonably practicable and how that commitment was embedded in the promoter’s thinking on the construction of the project.

83. Paragraph 1.2.4 of the Code of Construction Practice of the revised Code confirms that -

The Scottish Ministers have a duty to do everything which is reasonably practicable to ensure that the Project is constructed in accordance with this CoCP. The Scottish Ministers will ensure compliance with this CoCP through the construction contracts. In line with the requirements of the Forth Crossing Bill, the contractor will do everything which is reasonably practicable to construct the Project in accordance with this CoCP, including implementing appropriate best practice mitigation measures in line with the requirements of the Environmental Statement and Reports to Inform an Appropriate Assessment referred to in Section 1.4 of this CoCP.

84. The glossary to the revised Code of Construction Practice now contains the view of the Scottish Ministers on how the term reasonably practicable is to be interpreted-

The term “reasonably practicable” is used in situations where the imposition of an absolute duty or obligation is impracticable taking account of factors which may include items such as forseeability, cost and the limits on the level of control that can be exercised. In relation to environmental impacts, these can be assessed based on the conditions known (in the case of existing conditions) or likely (in the case of predicted impacts) to exist and mitigation measures can be developed from this. This is the process that has been followed in developing the mitigation measures set out in the Environmental Statement, Reports to Inform an Appropriate Assessment and controls in this Code of Construction Practice. It follows that there is no obstacle to the measures set out in the Environmental Statement being implemented and that these constitute reasonably practicable means. This includes monitoring to ensure the effectiveness, as planned, of the mitigation measures, and that their effectiveness, based on the conditions that are known or likely to exist can be taken to be as described in the Environmental Statement. In doing everything that is reasonably practicable, the measures taken by the contractor must relate to the contractor’s proposals and not just the measures identified in the Environmental Statement. If it is reasonable and practicable for the contractor to use an alternative method which would result in a lesser environmental impact than that identified in the Environmental Statement, then the contractor has an obligation to do so.

85. That clarification is helpful particularly in understanding the approach of the promoter to the Environmental Management Plan which will form part of the quality system which the appointed contractors will be required to operate. The Environmental Management Plan will include 3 fundamental components: the contractor’s environmental policy; the procedures to be implemented to monitor compliance with environmental legislation; and the procedures to be implemented to monitor compliance with the environmental provisions in the Forth Crossing Bill and the Code of Construction Practice. The contractor will have to demonstrate a plan complying with BS EN ISO 14001: Environmental Management is in place before construction can be started.

86. Taking that forward, the Code of Construction Practice now refers to a number of documents that the contractor will develop to set out in detail the management systems, procedures, approaches and methodologies that will be implemented in compliance with the terms of the code. These include:

  • a Construction Phase Health and Safety Plan for safeguarding health and safety on construction sites prepared in accordance with the Construction (Design and Management ) Regulations 2007;
  • an Environmental Management Plan which, following consultation, must be in place before construction commences; and which will include a number of subsidiary plans all describing the process to be followed to ensure compliance with environmental legislation and policy and minimise harm to the environment;
  • other management plans, of which a dozen are listed in the code; and
  • Method Statements which set out specific procedures and instructions on how to undertake a particular work related task.

87. At the hearing for Group 36, these parts of the Environmental Management Plan were referred to as “orphan documents”.

88. I find that the promoter has provided welcome clarity on what amounts to reasonably practicable and the part its commitment to that interpretation will play in ensuring that the environmental impact of the construction and operation of the Forth crossing works is not worse than the residual impact identified in the environmental statement. The Environmental Management Plan is a key to success and I agree that the “orphan documents” should have an enhanced status through incorporation within the Code of Construction Practice perhaps by way of appendices.

89. Section 68 of the Bill -Amendment of code of construction practice and noise and vibration policy-states, inter alia, that Ministers may amend or replace the code of construction practice, or the noise and vibration policy, but an amended or replacement document must not reduce the standards of mitigation and protection provided for in the document being amended or replaced. Before amending or replacing either document, Ministers must consult, and have regard to, the views expressed by: local authorities for the areas in which the Forth crossing works are situated, community councils in whose areas the Forth crossing works are situated, the relevant navigation authority, the Forth Estuary Transport Authority, the Scottish Environment Protection Agency, and Scottish Natural Heritage.

90. The promoter has given categorical assurances in response to concerns raised by a number of individuals, community councils and local authorities that consulting with relevant parties and the term having regard to their views will extend far beyond merely providing information on, and noting concerns about, decisions already made. A proactive approach will be adopted, involving constructive dialogue, and taking advantage of local and specialist knowledge to further best practice and establish mutually beneficial working relationships. In particular the promoter recognises its obligation to act as a “good neighbour” to those householders who will, or fear they will, suffer residual impacts from the project while under construction and/or the operation of the project once commissioned.

91. I return to some aspects of the Code of Construction Practice which are of concern to several groups of objectors in the paragraphs below. Before that I deal with the concerns raised by local authorities and some others concerning Section 70 and Section 71 of the Bill. These relate to noise and vibration during the construction phase of the project.

92. Section 70 Control of noise: Control of Pollution Act 1974; and Section 71 Statutory Nuisance: Environmental Protection Act 1990

93. I note that at Stage 1 there was evidence taken about proposals to remove enforcement powers from the local authorities in relation to construction matters. Related to that, in its Stage 1 Report the Committee noted-

In considering the mechanism available for monitoring and enforcement, the Committee agreed, given the concerns of objectors and some statutory consultees, that the local authorities should have an enhanced role to play. The Committee requests that the promoter considers this aspect further in discussion with the local authorities and comes back with amendments to the Code of Construction Practice in this regard (paragraph 273).

The Committee notes that there remain issues around the removal of local authority powers; these are matters for consideration, initially, at the first part of Stage 2 (paragraph 274).

94. With that requirement in mind, I note that paragraphs 1.11.1 to 1.11.3 have been inserted into the revised Code following a commitment given by the Minister in his response to the Committee regarding the Stage 1 report (paragraph 275). It confirms that the local authorities and other statutory bodies will be involved throughout the construction of the project, including the planning, review of ongoing construction and monitoring. It is stated, inter alia, this involvement will seek to facilitate the local authorities and other statutory bodies in their duties as regulatory bodies.” (paragraph 1.11.1).

95. At the hearings it was confirmed that the promoter intends to lodge two amendments to the Bill. First, in relation to section 70(1) and (2), the promoter intends to lodge an amendment that makes it a defence for the contractor, in respect of any challenge that it may make to a notice served by a local authority, to prove that the Forth crossing works are being carried out in accordance with the Code of Construction Practice.

96. Secondly, in relation to section 71, which relates to statutory nuisance, the promoter intends to lodge an amendment that will make it a defence for the contractor, in respect of any challenge to an abatement notice served by a local authority under section 80 of the Environmental Protection Act 1990, to prove that the Forth crossing works are being carried out in accordance with the Code of Construction Practice. The same defence is intended to be introduced in respect of any application by an aggrieved person to a sheriff regarding statutory nuisance under section 82 of the 1990 act.

97. With regard to section 70 of the Bill, section 60(2) of the 1974 Act gives local authorities the power to serve on a contractor a notice that imposes requirements about how works should be carried out. The matters that a notice may cover are set out in section 60(3) of the Act. It was stated the power for a local authority to intervene will not be removed or restricted by the amendment that the promoter intends to lodge. There is no dispute that the local authorities rarely use that power because they prefer to liaise with the contractor over any concerns about noise. They exercise their power only as a last resort when disturbance has occurred and when the local authority’s opinion is that further mitigation measures could be provided, in accordance with the best practicable means, to reduce or remove the disturbance.

98. It was explained for me at the hearings that if the council serves a notice under the 1974 Act, the contractor can challenge that notice under section 60(7) which affords the right of appeal to a sheriff within 21 days. The right of appeal under section 60(7) will not be changed. Section 60(8) of the 1974 Act provides that any person who contravenes a notice without reasonable excuse is guilty of an offence. That provision allows a contractor to continue undertaking construction works even in the face of a notice, if it has a reasonable excuse.

99. The consent process is defined in section 61(3) of the 1974 Act. It provides that the prior consent must define the works, and the method by which they are to be carried out, and the steps to minimise noise including vibration resulting from the works. The promoter was at pains to emphasise that its approach is intended to turn best practicable means from a defence into the heart of the noise management and control that the project will provide.

100. Section 61(8) of the 1974 Act provides that it is a defence for a contractor to prove that the works were being carried out in accordance with the consent that was issued under section 61 of the Act. The promoter emphasised that the amendment which it intends to lodge will extend the defence that the contractor may advance to include the opportunity to prove that Forth crossing works are being carried out in accordance with the Code of Construction Practice.

  • 101. The promoter’s response to concerns by local authorities and others about what it proposes is summarised in its written submissions relating to Group 35 as follows-
  • The only difference in the approach proposed compared to that provided by section 61 of the Control of Pollution Act 1974 is that the Employer’s Representative will approve the contractor’s assessments rather than the local authorities. This is particularly appropriate on this project as:
  • It will be a substantial commitment in time and resource on the Employer’s Representative to administer the review of the contractor’s assessments and consider whether to approve them or not. This avoids placing an undue burden on the local authorities;
  • The approach will provide consistency across the project which lies within different local authority areas;
  • It is the Scottish Ministers who have responsibility for assuring the contractor’s performance in terms of compliance with the Forth Crossing Bill, the Environmental Statement and Code of Construction Practice whilst providing a scheme of national significance; and
  • The process assures the contractor’s prioritisation and performance on best practicable means planning to achieve the objectives of the noise and vibration management procedures set out in the management plan being developed with the Councils.

102. The approach set out above puts the existing provisions of the Control of Pollution Act 1974 and Environmental Protection Act 1974 into the context of the project noise management regime.

103. An additional significant benefit of the proposed amendment to the Control of Pollution Act 1974 is that like the mechanisms available under section 61 of the Control of Pollution Act 1974, it will provide the contractor with full details of the framework they must follow in the knowledge that their operations will only be disrupted if they operate outside that framework i.e. outside the Code of Construction Practice and the Environmental Statement. This will provide the tendering contractors with full details upon which to base their tenders for undertaking the works to ensure that the tender prices submitted are as competitive as possible and removing the risk of significant claims for disruption due to unforeseen disruption to the construction works.

104. The process therefore places a duty of care to ensure all parties involved (contractor, Employer’s Representative and local authorities) ensure that noise and vibration controls are integrated into the planning of the works and then ensuring ongoing compliance with those commitments, therefore ensuring the highest possible levels of protection for the public being provided.

105. From the explanations provided at the hearings, I can understand that it is the promoter’s intention to overcome the vast majority of difficulties regarding noise and vibration by meticulous forward planning and, related to that, compliance with the details of the Code of Construction Practice. However, given the size and complexity of the project, it is unavoidable that unforeseen circumstances will lead to some disruption to the best laid plans. It seems inevitable that, on occasion, there will be requests from the contractor for permission to modify consented plans and breach previously agreed thresholds for noise and vibration. I find that in these circumstances, the role of the Employer’s Representative and the interpretation placed on best practicable means will be of considerable importance.

106. Taking first the role to be played by the Employer’s Representative, the promoter states-

The Employer’s Representative will be a senior civil servant, responsible and accountable to the Permanent Secretary and Ministers. In a similar manner as Council officials who have responsibilities to act reasonably and without bias, the Employer’s Representative will have those responsibilities. Ministers are accountable to the Parliament for the decisions their officials take and it is considered that there can be no reason to question the impartiality of the Employer’s Representative.

107. Turning now to the term best practicable means, I understand that it is to be found in other statutes. However, its application is a matter of judgement rather than compliance with rules. In reaching a balanced and independent view on what amounts to best practicable means in any particular situation it seems that, on occasion, the Employer’s Representative will require to bear in mind what is appropriate to secure the completion of the project in time and within budget and weigh that against the detriment to the amenity, health and property of a small number of individuals who will suffer the consequences of that decision. Given that the project forms an integral part of the National Planning Framework, that delays in one part of the project may have knock on effects in others, and that each day lost may add an estimated £1 million pounds to total expenditure it is not difficult to understand why the local authorities seek categorical reassurances that there will be no diminution in their powers to safeguard the residents in their areas.

108. Drawing the main strands of the evidence together, the arrangements which the promoter now intends to put in place to cover planning for, monitoring of, and compliance with the requirements of the Code of Construction Practice concerning noise and vibration are complex; and, of course, they have not been tested in practice. The role of the Employer’s Representative and the interpretation placed on best practicable means will themselves require to be the subject of scrutiny. However, if there is a fundamental disagreement in particular circumstances then the local authority retains the power to serve an abatement notice. As it has been explained to me, the proposed amendments will neither remove nor, in the end, restrict local authority powers which can be used in the last resort.

109. At the hearings there was conflicting evidence from experienced, knowledgeable and expert witnesses regarding the application of the provisions of Section 70 and Section 71 the Bill and the merits of the amendments which the promoter intends to bring forward. However, I was reassured by parties -the Councils and promoter- that their common objective is to see the project in place in time and on budget; and by the promoter that, in difficult cases, it is determined to act as a “good neighbour” to those who will, or feel they will, suffer residual detriment from the construction works required to achieve that objective.

110. On the basis of the evidence before me and the submissions made by the relevant parties, I conclude that Section 70 and Section 71 should be retained within the Bill; and I recommend that, subject to scrutiny of detail, the Committee give favourable consideration to the amendments which the promoter proposes to bring forward.

Aspects of the Code of Construction Practice

111. There are some matters relating to aspects of the Code of Construction Practice which are common to a number of the groups of objectors whose concerns are dealt with in Chapter 2. These include: the length of construction working hours; the health impact assessment; monitoring and compliance; and the enquiries and complaints procedure. The following paragraphs are provided as background and to avoid unnecessary repetition in Chapter 2.

112. I note that a number of suggestions which I made during the hearings for additions to the glossary and amendments to the text of the Code have been incorporated within Revision 3 made available at the end of September. With minor exception, I have not repeated these here or in Chapter 2.

Construction Working Hours, Noise and Vibration

113. Working hours are dealt with in paragraphs 3.4.1 to 3.4.11 of the revised Code of Construction Practice. The distinction between normal working hours for the replacement crossing and the road sections of the proposed project is maintained; and a commitment is given that the majority of construction works will be undertaken during normal working hours. In the light of the conclusions of the Forth Crossing Bill Committee during Stage 1 and commitments given by the Minister in response to the Stage 1 Report and at the Stage 1 debate, the normal working hours for the road sections of the proposed scheme have been amended to reflect those applied to the Airdrie to Bathgate Railway and Linked Improvements Act.

114. For many of the objectors their concerns about the length of normal working hours are closely linked to the traffic flows to, and from, the construction compounds and their fears about the associated levels of noise, vibration, dust and air pollution that they might suffer in consequence. Any noise and vibration emanating from the construction works outside normal hours will have a disproportionate impact on residents nearby seeking the peaceful enjoyment of their homes.

115. There was considerable expert evidence provided in written submissions and at the hearings designed not only to rebut the concerns of the objectors but also to explain and clarify the promoter’s intentions. Unequivocal commitments were given in evidence that key elements of the promoter’s approach to working hours will include consideration of local community needs. The contractor is required to assess noise and vibration as part of its construction planning and submit the assessments to the Employer’s Representative for approval. This requirement applies to construction works at all times within, and outwith, normal working hours. Key elements of the approach which will be implemented for this project include: controlling construction noise in the evening in currently quiet residential areas; taking adequate account of the cumulative effect of additional working hours; exercising control over evening construction noise; and providing respite periods during the weekends, if the works are concurrent with major daytime activities and already permitted long term noisy night-time activities.

116. Some of the objectors wish that the normal working hours for construction activity should be less than those now incorporated within the Code. However, shorter working hours will reduce productivity, increase the costs of construction, and extend the duration of the overall length of the construction period. The promoter has given a categorical assurance that any attempt by a contractor to work outside of working hours in order to make good slippage could not be classified as “exceptional works”. Specifically, it was noted that: Catching-up works are not emergency work”.

117. I find that Section 3.4 of the Code of Construction Practice should be reviewed to ensure that every one of the arrangements regarding the length of normal working hours, and levels of noise, vibration, dust and air pollution to which the promoter is now committed are incorporated within that document in a manner readily accessible by lay readers as well as professional users.

Health Impact Assessment

118. There were concerns expressed at Stage 1 about the Health Impact Assessment and the promoter agreed to report back to the Committee on any actions that could be taken to further mitigate the effects on those worst affected. There was relevant evidence given at Stage 2 with respect to specific concerns and my findings are as follows.

119. There is no statutory basis for a Health Impact Study; and, although there is reference to some aspects of best practice, I agree with those who stated that the assessment has been conducted at too high a level to be of much practical value in assessing the merits of the concerns raised by particular objectors at particular locations. There are two inter-related strands of which account must be taken: first, the actual impact on health and well being of factors including noise, vibration, dust and air pollution; and, second, the stress occasioned by concerns that these factors may become at best an inconvenience, possibly a nuisance, and even substantially detrimental to property and amenity.

120. As far as the first strand is concerned, in designing and constructing the haul road, the successful contractor will have to comply with section 66 of the Forth Crossing Bill and the requirements of the Code of Construction Practice when constructing and using the haul road. In short, the impacts must be not be worse than the residual environmental impact identified in the Environmental Statement and the contractor must employ best practical means throughout. In the great majority of cases the promoter’s noise and dust experts have demonstrated that the particular impacts of noise, vibration, dust and air pollution on property will fall well below the limits which will trigger significant adverse effects on health and even quality of life. Nevertheless, the promoter’s commitment to undertake rigorous monitoring of noise, dust and air pollution including the presence of particulates is to be welcomed.

121. Turning to the second important strand, the health impact assessment has dismissed the consequences of anxiety and stress concerning the impacts of construction works as speculative. That is counter intuitive and, in the light of evidence given by objectors at the hearings, appears to be simply wrong. I note that the promoter is committed to an array of measures designed to engage with nearby residents with the objective of removing uncertainty and providing as much information as possible in advance of construction activity being undertaken. I find that this is a vital, but perhaps underestimated, factor in reducing the stress and anxiety which is inevitable given what the promoter has in mind adjacent to the properties of numerous of the objectors.

122. I conclude that the Health Impact Assessment is flawed and it is of little practical value to the Committee in its deliberations with respect to the particular concerns raised by the objectors at Stage 2.

123. The introduction of the special measures now to be found in paragraph 5.2.16 of Revision 3 of the Revised Code of Practice (September 2010) are to be welcomed-

The Scottish Ministers will consider at their discretion applications supported by evidence for noise insulation or temporary rehousing from occupiers who may have special circumstances, such as night workers, those working in home occupations requiring a particularly quiet environment and those with a medical condition which will be seriously aggravated by construction noise, and provide noise insulation or temporary housing where it is demonstrated that this is necessary.

Monitoring and Compliance

124. At Stage 1 the Committee had concerns about the procedures proposed for monitoring of, and compliance with, the Code of Construction Practice. In the revised Code these matters are dealt with variously in section 1.10 Construction Supervision, section 1.4 Compliance with the Environmental Assessment and Appropriate Assessments, and section 1.5 Compliance with Legislation, Standards and Guidance; and they are linked to the Enquiries and Complaints Procedure set out as part of section 2.3 Community Engagement Requirements.

125. As a preliminary matter, I note that paragraph 1.10.1 requires the contractor to employ suitably qualified persons to undertake the task of monitoring; and, related to that, paragraph 1.10.3 states-

The contractor will undertake monitoring as may be necessary to comply with the requirements of this CoCP, including monitoring the effectiveness of mitigation measures and monitoring other actions as may be necessary to enable compliance with the requirements of this CoCP, the Environmental Statement and RIAAs to be demonstrated. (Note: RIAAs are Reports to Inform an Appropriate Assessment of likely impacts associated with development on a European Protected Site as required under Regulation 48 of the Habitats Regulations (1994))

126. The promoter has confirmed that the cost of putting in place the requisite number of receptors to ensure such monitoring as may be necessary and reading them is manageable, and that appropriate action will be taken to ensure compliance. The existence of the receptors will provide some comfort for those objectors anxious about the impacts of noise, vibration dust and air pollution on their, amenity, health and properties. The readings from them will provide the facts against which to assess the validity of complaints.

127. At Stage 1 concerns were raised about the role of the Employer’s Representative in safeguarding the interests of residents and other affected persons during the construction process. Since then the Code of Construction Practice has been substantially revised. However, the Code remains a work in progress and objectors and, as I have noted in connection with section 70 and section 71 of the Act, local authorities are concerned that there is independent involvement in the oversight of the project and also that the processes which the Code describes will be operated in an even-handed and transparent manner. However, they are not alone in their concerns.

128. In its written submissions in response to the concerns of individual objectors and community councils, the promoter provided the following explanation of what is intended in terms of monitoring and compliance-

In line with normal practice on major trunk road infrastructure projects, the Scottish Ministers will provide a site-based team who will monitor the works being undertaken. This includes provision and maintenance of mitigation measures. This requirement is set out in Section 1.10 of the Code of Construction Practice and is the means by which the Scottish Ministers will discharge their obligation to ensure the works are carried out in accordance with the Environmental Statement, Code of Construction Practice and the construction contract. In addition to undertaking independent monitoring, the Scottish Ministers' team will have full access to the contractor's monitoring records to assist them to execute their responsibilities. The Scottish Ministers will therefore take a significant and leading role in terms of ensuring compliance with environmental mitigation requirements.

129. The explanation continued-

The contractor must seek approval from the Employer’s Representative to undertake construction works. As required by paragraph 5.2.5 of the Code of Construction Practice, in considering whether to approve the contractor’s assessments, the Employer’s Representative will have regard to the requirements of the Environmental Statement (including the noise and vibration limiting criteria defined by the residual noise effects identified in the Environmental Statement), the Reports to Inform Appropriate Assessment, the Code of Construction Practice and the views of the Noise Liaison Group. The contractor will not be permitted to undertake construction works until the relevant assessment is approved by the Employer’s Representative.

The contractor must also consult with local authorities when preparing the Environmental Management Plan and its subsidiary plans, which include the Noise and Vibration Management Plan

130. Turning to how the Employer’s Representative will ensure compliance it was explained that-

There are various measures in the contract and, obviously, in law that could be used if activities were not being undertaken safely. The representative could take action or inform the relevant authorities on the basis of the construction and design management regulations, for example. There is statute in place to govern health and safety. That is one example among many. Obviously, there are mechanisms in the contract to ensure that the contractor does what it should do. Payment is an obvious example, but various other legal measures can be put in place to ensure that the contractor does things. The ultimate measure would be suspension of the works.

131. The promoter has emphasised in relation to this as well as other matters that it will rely heavily on forward planning and contractual arrangements taken together with continuous monitoring of outcomes to secure compliance with the terms of the Code. Outside of the contract, sanctions can be imposed by regulatory bodies in line with their statutory responsibilities and powers. Ultimately, the Scottish Ministers will have the authority, through the construction contract, to take the extreme step to halt works which are not being undertaken in accordance with the contract. However, it was emphasised that neither the promoter, as employer, or the contractor will ever want to get to that stage not least because there would be reputational issues at stake.

132. Notwithstanding the availability of that evidence to the objectors and extensive engagement before the hearing, the role of the Employer’s Representative remains a concern for objectors which was neatly expressed by those in Group 31-

...there is a lingering perception that the Scottish ministers and the employer’s representative in particular will be in the unfortunate position of being poacher and gamekeeper... it is our view that once the works are under way there will be a significant identification of interest between the employer’s representative and the contractor, which is potentially contrary to the interests of local people...It is in both the contractor’s and the Scottish ministers’ interests—and, therefore, the employer’s representative’s interests—to do things such as deliver the project on time and to schedule even in the face of a large array of potential unforeseen circumstances over six years. Those interests will potentially override concern for local people.

133. In this important matter, individual objectors and some community councils follow the local authorities in pointing out that there is a difficult balance to be struck between the promoter’s interest in ensuring that the project is completed on time and within budget and the legitimate interests of private individuals and communities in ensuring complete compliance with the content of the Code of Construction Practice as that relates to impacts on the amenity, health and property of affected persons. In short, they doubt whether the employer’s representative is, in fact, well placed to enforce that balance. With all that in mind some advocate that there should be an independent person appointed-

...the person could effectively be a court of appeal, should it be felt that the procedures that have been laid down are not being followed in an even-handed manner.

134. I offer my conclusion on that after dealing with the related matter of what the promoter proposes by way of an Enquiries and Complaints Procedure.

Enquiries and Complaints Procedure

135. Many of the objectors are concerned that it will be difficult for them to have timeous and sufficient heed paid to alleged breaches of the Code of Conduct some of which may occur without warning. Neither the content of the Code, nor the written submissions of the promoter, nor the oral evidence at the hearings has been sufficient for these objectors to revise their view that further specific sanctions should be available should contractors either by accident or purposely violate the provisions of the Code of Practice or statutory and other regulatory requirements.

136. At least some of the concerns of the objectors could have been overcome by a greater commitment to engagement in the run up to Stage 1; and, despite the best efforts of the promoter at Stage 2, concerns remain particularly regarding the role of the Employer’s Representative, the procedures for monitoring and compliance, and the timeous and effective response to enquiries and complaints.

137. I note (from paragraph 1.4.2 of the revised Code) that Scottish Ministers have made an unequivocal commitment that mitigation measures will reflect best practice, statutory and other regulatory requirements together with the relevant British Standards and codes of practice regulating on-site environmental and safety measures to mitigate the impacts of construction.

138. The fifth bullet point in Section 2.3.1 of the Code of Construction Practice sets out Transport Scotland’s commitment to an Enquiries and Complaints procedure. It reads as follows-

Enquiries and Complaints Procedure-the contractor will establish a system for dealing with enquiries and complaints from the public. The procedure will include setting up dedicated freephone hotline and fax numbers together with a dedicated email address and postal address for enquiries. The hotline will be staffed by personnel from the contractor’s community liaison team 24 hours a day. The relevant contact numbers, email, and postal addresses for the enquiries and complaints system will be displayed on signs around the construction site and will be published on the website and newsletters. Enquiries and complaints will be logged in a register and appropriate action will be taken in response to any complaints.

The extent of the action taken will depend on the nature of the complaint. Complaints will be investigated to establish the cause of the complaint and whether the works comply with the Environmental Statement, CoCP and other relevant requirements such as legislation, standards and codes of practice. The investigators will also consider whether the effects which give rise to a complaint are unavoidable consequences despite the works being undertaken in accordance with these documents and requirements and whether they are avoidable. Where measures or actions in accordance with these documents and requirements can be provided or taken to resolve complaints this will be done. The contractor will employ reasonable endeavours to contact complainants within 48 hours of their complaint to advise them of progress being made in addressing the complaint and then again following completion of any actions taken to resolve the complaint. If it is not possible to resolve the complaint, an explanation of why this is the case will be provided to the complainant.

139. On the basis of the evidence provided, I conclude that the promoter’s general approach to the related matters of the role of the Employer’s Representative, monitoring, enforcement, and dealing with complaints concerning alleged breaches of the Code of Construction Practice is sound in principle. However, its detail has yet to be tested in practice and the promoter should be alert to the need for adjustments.

140. The Code of Construction Practice is a work in progress and further amendments to the text would clarify what it has in mind. Amongst the adjustments and additions worthy of serious attention are the following:

  • Re-order the text of section 1 so that section 1.4 and 1.5 follow section 1.10 and make modifications to the text to show how the promoter will monitor outcomes and, if necessary, secure compliance.
  • In section 1, possibly in section 1.6, introduce the Employer’s Representative and define that person’s role. Related to that consider whether the Employer’s Representative should be identified in the glossary as a person who acts on behalf of the employer.
  • Identifying section 2 as Engaging with Communities rather than Liaison and Public Information.
  • In section 2 rescue the Enquiries and Complaints Procedure which has been relegated to the fifth bullet point in paragraph 2.3.1 and give it the status of a separate subsection 2.4

141. The concerns of objectors are likely to persist until they are alleviated, and hopefully removed, by an explanation in plain English readily understandable to the lay public of how the project will be monitored, how compliance with the Code of Construction Practice will be enforced, and a step by step guide to how complaints can be made and how these will be acted upon. The Guidance on the Compulsory Purchase Process and Compensation (July 2009) demonstrates what can be achieved in explaining complicated issues to the general public; and the issue of a companion document would be a substantive contribution underpinning the promoter’s commitment to meaningful community engagement.

142. The role of the Employer’s Representative and the implementation of the Enquiries and Complaints Procedure is vital to the promoter’s continuing commitment to its community engagement and the safeguarding of the interests of a project recognised to be in the national interest but which may have residual impacts on those who find themselves in its vicinity during the construction phase. The arrangements proposed by the promoter have not been tested in practice. I suggest that the Bill Committee may wish to consider whether the role of the Employer’s Representative and the operation of the Enquiries and Complaints procedure should be the subject of continuous monitoring and independent review at appropriate intervals throughout the construction period.

Unilateral Undertakings Made by the Promoter

143. In the course of the inquiry, the promoter made a number of promises, in written evidence and on the record, to do certain things in response to specific concerns. The promoter has drawn together these and other undertakings in the Commitments and Undertakings Register to be issued to the Scottish Parliament in support of the consideration of the Bill. The purpose of that register is to capture all individual undertakings given to objectors and the Scottish Parliament into a single document to ensure that the Scottish Ministers in exercise of the powers of the Forth Crossing Bill, once enacted, comply with the undertakings. In that respect, it will be recalled, Scottish Ministers are accountable to the Scottish Parliament.

Final Remarks in Chapter 1

144. Returning to the hearings, I am grateful to the witnesses for the objectors for their parts in the proceedings. For many of them this was a new experience and I recognise the considerable effort and hard work which has underpinned the presentation of their cases. In particular, I am grateful to those who took on the task of lead objector within their group. This was a difficult, perhaps even daunting task and I thank these volunteers for assisting me in ensuring that the cases for the objectors was placed before me fairly and in full. Turning to the promoter, Ruth Crawford QC conducted its case with the courtesy, patience and display of learning for which the Faculty of Advocates is justly renowned; and I thank all of her witnesses for placing their knowledge and professional expertise at the disposal if the inquiry. I must mention in particular Fraser Henderson for his part in the proceedings not only at the hearings themselves but also elsewhere as he sought where at all possible to achieve the negotiated settlements which are the preference of the Bill Committee.

145. I wish to record my special thanks to the staff of the Non-Executive Bills Unit for their various contributions leading up to, and including, the hearings. The unstinting assistance of the Senior Assistant Clerk, Sarah Robertson, and of her close support team of Samantha Currie and Carol Mitchell, has been invaluable in facilitating the smooth running of events and making an efficient and cost effective use of time and other scarce resources against what has been a challenging timescale.

146. Following my submission of this report, it remains the sole duty of the Committee to decide and make its own report on the outstanding objections at Stage 2. In short, it is open to the Committee to accept or reject this report in whole or in part. It can take such other steps as it sees fit, for example, referring further matters to the Assessor for consideration and report or itself taking further evidence.

147. Once the Committee has produced its own report on the outstanding objections that will conclude phase 1 of Stage 2.

CHAPTER TWO: THE OBJECTIONS

Introduction

148. As an introduction to this chapter, I refer back to Chapter 1 where I noted that in considering the array of concerns expressed by the objectors my principal focus in this report has been on the Bill itself. Following my review of all the written and oral evidence before me, I have set out my reasoning and conclusions on the matters of concern to each Group of objectors. My recommendations to the Committee on whether it should uphold or dismiss the objections are based on whether, subject to its own consideration of my reasoning and conclusions, and subject also to the implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, there need be any amendment, adjustment or other alteration in relation to the Bill regarding the matters raised.

149. Many of the concerns of the objectors are not directly with the provisions of the Bill itself. They focus on other related matters including the nature and extent of the mitigation set out in the Environmental Statement. Bearing in mind the terms of Section 66 of the Bill, I have made findings in Chapter 1 of my report related to these. Section 68 of the Bill provides that Ministers may amend or replace the content of the Code of Construction Practice which forms part of the Environmental Statement. With that also in mind, I have included findings on some parts of the content of the Code along with some suggestions to be given serious consideration by the promoter for inclusion in further revisions of the text of what is a work in progress.

GROUP 1: MRS M R ARBUCKLE (OBJECTOR 3)

Introduction

150. The following works are required in the vicinity of M9 Junction 1A: upgrading M9 Junction 1A including new westbound merge slip road and improvements to the M9 to M9 Spur northbound slip road; and environmental mitigation.

151. Based on all of the written and oral evidence before me, and bearing in mind those matters which are now not in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by this objector relate to the following main issue: the proposed temporary acquisition of Plot 332 and to the permanent acquisition of Plot 311 at Overton Brae which is in the ownership of the objector and her husband, Mr Arbuckle.

152. Plot 311 to the north of Plot 332 is identified for permanent acquisition for use as part of the embankment required for the M9/A9 trunk road. To the west of these plots is the C18 Kirkliston to Winchburgh Road. To the east is Plot 331 which is the subject of an objection by Group 40. The evidence relating to Group 1 and Group 40 was heard in tandem and the reasoning and recommendations relating to these groups can usefully be read together along with parts of reasoning relating to Group 45.

153. At the hearing it was confirmed that, following negotiations between the parties, the extent of the land which the promoter intends to acquire at Plot 332 has been reduced. Following my review of all the written and oral evidence before me, my reasoning and conclusions on the amendments, adjustments or other alterations to the Bill which are sought by this objector is as follows.

Reasoning and Conclusions

154. Land Acquisition At the hearing the promoter confirmed that some part of Plot 311 would form part of the permanent works related to the road embankment of the road including drainage. It was explained that it is standard practice to secure access to a strip of land at the bottom of the embankment to a motorway in order to facilitate its construction and, thereafter, to allow for essential maintenance. The latter is required in order to comply with the statutory obligations of Scottish Ministers to maintain the trunk road network. It involves an array of activities including grass cutting, litter picking, ensuring slope maintenance and, of particular concern to this objector, adequate drainage. Pedestrians are prohibited from accessing motorways, and, accordingly, it is also normal practice for a fence to be put in place at the foot of a motorway embankment. In this case the fence would have to be secure not only to prevent intrusion by pedestrians but also to avoid road kill of badgers and otters both of which are protected species.

155. There is no dispute that Mr and Mrs Arbuckle are regarded as amongst the foremost breeders of pedigree Shetland Sheep in Scotland. Nor is there any dispute that it is desirable that any disruption to their business during the construction or operational phases of the project should be kept to a minimum in order to minimise any reduction in the number of breeding ewes and consequent loss of income from the sales of sheep.

156. With that in mind, the objector proposes that, rather than acquiring the land in Plot 311 for its purposes, servitude rights of access might be taken by the promoter in order to gain access to the motorway embankment. The advantages of this would include a reduction in cost to the promoter, it would allow the objectors’ sheep to continue to graze this area thereby keeping it tidy, and it would reduce the loss of income to the pedigree sheep rearing business consequent on the loss of grazing land. If that approach is rejected then the fence adjacent to the embankment should be as tight to the motorway as possible

157. Related to these suggestions, I accept from the promoter that: the approach favoured by the objector would be contrary to standard practice; there would be insurmountable practical difficulties in implementation; and even if servitude rights of access were an acceptable solution in this case, which they are not, acceding to the objector’s request would set an unfortunate precedent for motorway construction nationwide.

158. Bearing in mind the final positions of the parties as set out in their closing submissions, there would appear to be agreement that the land take at Plot 311 is necessary. However, there is no advantage to the promoter in taking more land than was reasonably practicable for the completion and operation of the project. Acquisition should be minimised and the line of the required fence drawn as tight to the toe of the motorway embankment as is possible.

Recommendation

159. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

160. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

161. Accordingly, I recommend that the Bill Committee dismiss this objection.

GROUP 5: DUNDAS HOME FARM RESIDENTS (OBJECTORS 14 and 43)

Introduction

162. The following works are required in the vicinity of Dundas Home Farm: main carriageway passing to the north of Dundas Home Farm; improvement and realignment of B800, including demolition of the existing bridge over the A90; provision of public transport links between the B800 and the A90; and environmental mitigation.

163. The objectors have their homes in a group of buildings built in 1881 and now listed as category B by Historic Scotland. Built as steadings for the home farm of Dundas Castle, the surviving buildings have been converted to form 13 dwellings which take the form of an enclosed courtyard with flanking blocks on two sides.

164. Based on all of the written and oral evidence before me, and bearing in mind those matters which are now not in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by this group of objectors relate to two main issues: the positioning of a gantry to the northwest of Dundas Home Farm; and the proposed gap in the bund, noise barrier and mixed woodland to be put in place north west of Dundas Home Farm.

Reasoning and Conclusions

165. Following my review of all the written and oral evidence before me, my reasoning and conclusions on the amendments, adjustments or other alterations to the Bill which are sought by this group of objectors are as follows.

166. Issue 1: Position of a Gantry to the North-West of Dundas Home Farm Following consultation with the objectors, the promoter has agreed that the superspan gantry, which will form part of the Intelligent Transport System, will be sited further to the west than originally proposed. However, the objectors remain concerned that the structure will be seen from bedrooms within two west-facing, two storey properties: 13 and 14 Dundas Home Farm. They request that the gantry be moved a further 50 metres to the west.

167. In making my assessment I must give appropriate weight to the fact that the positioning of the gantry must take account of the various design standards set out in the Design Manual for Roads and Bridges and related documents. Gantries must be spaced at 1 mile and 0.5 mile intervals; and this gantry will carry the 0.5 mile information on the approach to the Queensferry Junction and the 0.5 information on the approach to the Scotstoun Junction. I find that any further repositioning of the gantry will be likely to violate the accepted design standards with consequent implications for road safety.

168. Despite some screening by existing woodland, I accept that parts of the gantry will be visible from the bedroom windows of these 2 properties. However, I am not persuaded that the objectors’ concerns about residual visual intrusion justify a departure from standards in this case.

169. Drawing these matters together, I am not persuaded that there need be any further adjustment to the proposed works beyond what the promoter now proposes.

170. Issue 2: Gap in the Bund, Noise Barrier and Mixed Woodland to the North West of Dundas Home Farm Figure 12.4g within volume 4 of the Environmental Statement shows a break of approximately 200 metres in the combination of bund, noise barrier and mixed woodland which will be put in place to the north-west of Dundas Home Farm as mitigation.

171. I am not convinced that the gap will contribute much to landscape integration or add greatly to the views to be enjoyed by drivers and their passengers. Neither am I persuaded that the gap will have a substantial impact on the views out from even the west-facing properties at Dundas Home Farm. The provision of the 500 metre length of 4 metre high acoustic screening (being part bund and part barrier) will be sufficient to reduce noise levels at the objectors’ properties to levels which are all but imperceptible to the human ear. I accept from the promoter that closing the gap will not have any measurable benefit in terms of air or light pollution insofar as these affect the objectors’ properties.

172. Drawing these matters together, I find that the objectors’ view that closing the gap in the mitigation works is required to mitigate the impact on their properties of noise, light and air pollution from the motorway is not supported by the facts; and acceding to their request would impose a cost to the public purse which cannot be justified.

Recommendation

173. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

174. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

175. Accordingly, I recommend that the Bill Committee dismiss this objection.

GROUP 6: KIRKLANDS PARK CRESCENT/GARDENS KIRKLISTON (OBJECTORS 22, 5, and 45)

Introduction

176. The Bill indicates that the following works are required in the vicinity of Kirkliston: upgrading of M9 Junction 1A; and environmental mitigation. The objectors live in a group of houses located on the west side of Kirkliston with access taken from Main Street.

177. Based on all of the written and oral evidence before me, and bearing in mind those matters which are not now in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by this group of objectors relate to the following main issues: the provision of sound attenuation barriers in the vicinity of their homes; and, with respect to working hours as defined in the Code of Construction Practice, clarification of what amounts to an “emergency”.

178. My reasoning and conclusions for this Group can usefully be considered along with that for Group 46

Reasoning and Conclusions

179. Following my review of all the written and oral evidence before me, my conclusions on the amendments, adjustments or other alterations to the Bill which are sought by this group of objectors are as follows.

180. Issue 1: Provision of Sound Attenuation Barriers These objectors have homes in an area where the amount of background noise is relatively high. Noise from traffic on the M9 is a large component of that, and I can understand their fears about the possible impact on their amenity and lifestyles of traffic flowing along a further two lanes of the motorway when this part of the project becomes operational in 2017 and beyond.

181. The promoter acknowledges that some other properties nearby in the vicinity of Kirklands Park Grove and the sports centre might qualify for noise insulation when formal assessment is undertaken within 6 months of the altered road coming into operation. Accordingly, it has agreed to provide mitigation now by way of a sound attenuation barrier. That will be 250 metres long and 2.5 metres high running northwards on the M9 spur. What the objectors seek is an amendment to the Bill to allow for the addition of a further stretch of barrier 150 metres long. The result would be a sound attenuation barrier running along the length of the project works from Kirkland Park Grove to the B9080. The extension would have the additional advantage of concealing the flows of traffic and also any gantry positioned nearby which would tower above the motorway itself.

182. Using a well established methodology the promoter has established the likely situation without the scheme (in 2017) and that which is forecast with the scheme allowing for 15 years of traffic growth (in 2032). The additional noise levels attributable to the part of the project of particular concern to the objectors are calculated to be less than 3dB and, hence, imperceptible. Indeed, for a 3dB change the traffic flows in this vicinity would have to double and the forecast flows are well below that. Based on this evidence, I find that the criterion that would trigger mitigation at the stretch of road to which this group of objections refers will not be met.

183. I must also take into account the fact that the length of additional barrier which the objectors propose would be built adjacent to the south bound carriageway which takes vehicles off the M9 spur and on to the M9. I find that to be unacceptable because, in consequence, the visibility splays to provide the necessary sight lines could not be met.

184. Drawing these matters together, I find that the approach of the promoter is adequate to meet the concerns of the objectors about the impact of noise from the traffic flows along this stretch of road when the project is operational. Considerations of road safety also run against extending the barriers to which the promoter is committed. I conclude that that what is now proposed to be included within the Bill by the promoter is to be preferred to the further changes suggested by the objectors.

185. Issue 2: Exceptional Works Although no amendment to the Bill is proposed, I deal with this matter for clarity for these objectors and for those in other groups who have made mention of this in their evidence. The focus of concern is paragraph 3.4.10 of the Code of Construction Practice and, within that, what would amount to an emergency which would trigger the need for construction works to be undertaken out with normal working hours.

186. Accepting from the promoter that there is no hidden agenda, I turn to my dictionary to find that an emergency is a sudden, unforeseen occurrence for which routine procedures will be inadequate on safety or other overwhelming grounds. The example given by the promoter is a spillage of diesel that damages a road surface so severely that it requires to be replaced as a matter of urgency out with normal working hours in order to allow for the free flow of traffic on the affected road.

187. In response to questions the promoter gave a categorical assurance that any attempt by a contractor to work outside of working hours in order to make good slippage could not be classified as “exceptional works”. Specifically, it was noted that: Catching-up works are not emergency work”. I suggest that this commitment be included within the Code of Construction Practice.

Recommendation

188. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

189. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

190. Accordingly, I recommend that the Bill Committee dismiss this objection.

GROUP 9: MRS SANDRA SEYMOUR & MRS DIANE JOHNSTONE (OBJECTOR 34)

Introduction

191. The Bill indicates that the following works are required in the vicinity of the objectors’ land adjacent to the A90 on the northern side of the Forth Road Bridge: provision of a new slip road between Ferrytoll Junction and the Forth Road Bridge; and environmental mitigation.

192. The objectors elected to rest on their written submissions. Based on all of the written and oral evidence before me, and bearing in mind those matters which are now not in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by these objectors relate to one main issue. The objection is to the compulsory purchase of Plot 1428.

Reasoning and Conclusions

193. Plot 1428 The land in question is located to the north east of Welldean Cottages, North Queensferry and south of The Bungalow, Inverkeithing. The Plot is described in the Book of Reference as follows:

3671 square metres or thereby of hardstanding and scrubland lying generally to the north east of Welldean Cottages, North Queensferry and south of The Bungalow, Inverkeithing.

194. The promoter now proposes to bring forward an amendment so that only land necessary for environmental mitigation will be acquired. That part of the plot will be used for mixed woodland planting required for landscape mitigation, contributions to biodiversity and to offset loss elsewhere in the scheme. Scottish Natural Heritage has not indicated any concerns regarding the proposals at the land in question; and the land lies outside of the boundary of the Ferry Hill Site of Special Scientific Interest. It will not be possible to provide general vehicular access to the 1800 square metres which will remain because that would require general road traffic to be permitted to cross the Forth Road Bridge. Pedestrians, cyclists and agricultural vehicles will be able to access the land.

195. Plot 1428 is the only land that remains from a family farm that was purchased when the Forth Road Bridge was constructed. In response to questions the promoter confirmed that the offer to the objectors to purchase the whole of Plot 1428 is still on the table. It is for them to decide whether their sentimental attachment to the land is sufficiently strong to outweigh the implications of restricted access to that land, which is inevitable if the project goes ahead as planned.

Recommendation

196. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

197. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

198. Accordingly, I recommend that the Bill Committee dismiss this objection.

GROUP 10: BABCOCK INTERNATIONAL GROUP (OBJECTOR 39)

Introduction

199. The Bill indicates that the following works are required which are of relevance to this objection: realignment of the A90 to connect to the replacement crossing; upgrading Ferrytoll Junction; realignment of Ferrytoll Road, the B981 and B980; environmental mitigation; and the replacement crossing.

200. The objector elected to rest on its written submissions and did not appear at the hearing.

Reasoning and Conclusions

201. As I understand it, the objector’s concerns are focused on the proposed compulsory purchase of land and the use of railway track. What the promoter seeks with regard to the land under dispute is set out in the Book of Reference and Parliamentary Plans submitted with the Forth Crossing Bill. The objector is concerned that the proposals do not grant Babcock rights to use the railway on terms which are equivalent to those they currently enjoy; The Book of Reference does not take account of the current scheme for control and use of the line; the rights to use the line would be significantly weaker than their current rights; and The Book of Reference is inaccurate as to the identity of users of the line.

202. At the hearing, I was told by the promoter that the following commitments have been made: amend the originally proposed compulsory acquisition of land to be a permanent servitude; amendments to the Book of Reference and bridge agreement; and amendments to the Code of Construction Practice to clarify the Objector’s interest. I was also assured that the parties are working to arrive at a mutually acceptable position. That is the preferred outcome of the Bill Committee and I have no reason to suppose that it cannot be achieved.

Recommendation

203. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

204. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

205. Accordingly, I recommend that the Bill Committee dismiss this objection

GROUP 11: DOUG AND MARY TAIT & LES AND PAULINE CHAPMAN (OBJECTOR 44)

Introduction

206. The following works are required in the vicinity of Echline: a main carriageway passing below the A904; Queensferry Junction; realignment of the A904, the U221 Builyeon Road and the B924 Bo’ness Road; a signalised junction between the A904 and B924; and environmental mitigation. Transport Scotland has issued Compulsory Purchase Orders to permanently acquire the jointly owned access rights to Plots 1146, 1174 and 1175.

207. The objectors are resident at 1 and 2 Echline Drive respectively. Their properties are located at Echline corner with a joint access taken from east of the junction between the A904 Builyeon Road and B924 Bo’ness Road.

Reasoning and Conclusions

208. Based on all of the written and oral evidence before me, and bearing in mind those matters which are now not in dispute, some of which I understand to have been resolved in the course of the hearing, I find that the amendments, adjustments or other alterations to the Bill which are sought by these objectors relate to the following main issues.

209. Issue 1: Property Values and Compensation The legislation regarding compensation is contained in the Land Compensation (Scotland) Act 1963 and the Land Compensation Act (1973). Guidance on the compulsory purchase process and compensation was issued by the promoter in July 2009. I accept that the concerns of the objectors regarding the land which crosses their access are removed by the commitment by the promoter to compulsorily purchase the ground. The owner, whoever that may be, will be compensated.

210. Issue 2: Access and Driveway The objectors insist that there is a need for a “Keep Clear” sign on the road in front of 1 and 2 Echline in order to ensure convenient access to, and egress from, these properties. I accept from the promoter that its traffic modelling is robust at the local level in the vicinity. That work demonstrates that there will be no queuing in the vicinity as a result of traffic flows generated by the project. In any event, an independent safety audit will be undertaken once the road is operational and the matter can be revisited at that time.

211. Given my findings on Issue 1 and Issue 2, I conclude that the objectors will be able to obtain satisfactory access and egress to their homes. Accordingly, I agree with the promoter that the imposition of special sanctions or penalties simply does not arise.

212. Issue 3: Flood Risk and Drainage Section 9 of the Code of Construction Practice deals with Protection of the Water Environment. Paragraph 9.2.2 sets out details of the Surface and Groundwater Management Plan which will be put in place before construction works begin. I find that implementation of the terms of paragraph 9.2.2 will be sufficient to meet the concerns of the objectors regarding any aspect of flood risk or drainage, including the accumulation of debris in the vicinity of 1 and 2 Echline, which is properly attributable to the construction of the scheme.

Recommendation

213. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

214. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

215. Accordingly, I recommend that the Committee dismiss this objection.

GROUP 12: HOPETOUN HOUSE PRESERVATION TRUST, HOPETOUN ESTATES AND OTHERS (OBJECTOR 47)

Introduction

216. The Bill indicates that the following works are required in the vicinity of Hopetoun Estate: upgrading M9 Junction 1A and the M9; improvement works at M9 and M9 Spur associated with the provision of an Intelligent Transport System; a main carriageway passing to the north of Dundas Home Farm; Queensferry Junction; realignment of the A904, the U221 Builyeon Road and the B924 Bo’ness Road; a signalised junction between the A904 and B924; widening of Society Road to accommodate construction traffic travelling to the replacement crossing; and environmental mitigation.

217. By way of introduction, the objectors state that Hopetoun House, its collections and immediate grounds are of national significance. It is located about 4km west of South Queensferry. Since 1974 it has been owned and managed by The Hopetoun House Preservation Trust which is an independent charity. This has three main objectives: the conservation and preservation of the House, collections and grounds; the enablement of access to and enjoyment of Hopetoun by the public; and the educational use of Hopetoun. To support this, the Trust has three main business activities: being open as a 5 star visitor attraction; hosting and running a series of large-scale public events through the year; and operating a hospitality, conference and weddings business.

218. Based on all of the written and oral evidence before me, and bearing in mind those matters which are not now in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by this group of objectors relate to the following main issue: access to the estate during construction of the project.

Reasoning and Conclusions

219. I have reviewed the changes which the objectors state in their rebuttal that they wish to see and related these to my understanding of the position of the parties at the start of the hearing. I find that the remaining concerns relating to access can be unpacked into 3 main constituent elements: access by way of Society Road; upgrading of a private track to secure an alternative access to Hopetoun House; and design of the haul road to a standard which would facilitate its later adoption by City of Edinburgh Council.

220. As a preliminary matter, I recognise that, in order to underpin their commercial viability, the various businesses conducted within Hopetoun must maintain their reputation as an attractive destination for tourists and day visitors, including wedding parties. I agree with the objectors that the perception of what is variously on offer is an important factor in influencing the decision of prospective visitors and clients to favour Hopetoun rather than some other destination. That perception includes the time that it takes a party to travel to Hopetoun from various locations in the Edinburgh area.

221. Accordingly, I am in no doubt that there is a role for the promoter acting in partnership with Hopetoun to ensure that the public in general, and prospective visitors in particular, are adequately informed at all times during the construction period of what the relevant impacts will be in the vicinity and what are the consequences, if any, for those visiting the estate. I am likewise in no doubt that if that process of providing adequate information fails in its purpose then there will be some detriment to the commercial viability of the businesses which rely on the reputation of Hopetoun House and its policies as an attractive destination. Related to that and what follows, I accept from the parties that their mutual objective is to do everything possible to ensure that there will not be a significant impact on the conduct of business at Hopetoun. However, in the last resort, it is open to the objectors to make representations to the Scottish Ministers for compensation for detriment incurred.

222. I also note in passing, the promoter’s general position on the haul road is summarised in Chapter 1 of this report and only those particular matters raised in connection with this objector are considered below. The promoter cannot be expected, by way of the Bill, to solve, or even alleviate, any current difficulties which visitors may be experiencing in accessing the array of offers at Hopetoun. One example is the backing up of traffic on Farquhar Terrace as a consequence of on-street parking in that stretch of road. Of course, that does not preclude what has been termed “joined up thinking” in teasing out solutions. However, the starting point in assessing any detriment to Hopetoun attributable to the project must be the circumstances which are found without the proposed project compared with the likely outcomes which result from its construction and operation. With these essentials firmly in mind I can turn to the other concerns expressed by the objectors.

223. First, I recognise that the objectors are worried that, given current levels of congestion, particular problems will emerge simply because Society Road is the only access road to Hopetoun House, and construction traffic will use a section of that road to journey from the A904/Echline to reach works at the shore of the Forth. I accept from the promoter that its modelling shows that works associated with the project will reduce rather than increase the likelihood of congestion and associated delay at Echline Junction. The focus of the objectors’ concern is on the stretch of Society Road which will be used by construction traffic notably, but not solely, at the beginning of the construction period; and I note that it was acknowledged by the promoter that there would be some working on Saturdays and on occasion Sundays when visitor numbers to Hopetoun can be expected to peak. My conclusions on the use of Society Road by construction traffic and related matters are to be found in Chapter 1 and where I deal with Group 25 and others and they are applicable to the concerns expressed by these objectors. I simply record with the particulars of their case in mind, that I was told at the hearing that some modifications will be introduced into the Code of Construction Practice which will meet the concerns of the objectors regarding not only the flows of traffic to major events which may take place within Hopetoun House and/or its grounds but also the relevant associated signage for visitors.

224. Moving on from that to the second matter, there are minor routes running north from the A904 one of which the objector suggests could be upgraded to take some of the traffic to Hopetoun House and Hopetoun Estate during the construction period thus mitigating the business impact and also the impact on the general amenity of residents of Hopetoun Estate, Farquhar Terrace, and, indeed, the wider South Queensferry area. The route favoured by the objectors runs north from the A904 at Duddingston Farm Cottages to join Society Road at a point to the west of East Shore Wood and to the east of Society Lodge. It would involve upgrading a private track to take vehicular traffic. Another route running to the south of the Deer Park is rejected by the objectors because it does not allow for the visual impact on visitors of the imposing main entrance to Hopetoun House.

225. I agree with the promoter that, bearing in mind the content of the revised Code of Construction Practice, the siting of the construction compound, and the location of the works, an alternative access as proposed by the objectors can do little or nothing to address the objector’s concerns about delays to traffic seeking to access Hopetoun during the construction period. The difficulties associated with the proposed route include the gradients to be encountered especially south of East Lodge; and the additional cost to the project could run to some £1.3 million with little benefit to either the objectors or any others in the vicinity.

226. Looking to the longer term, as a third matter the objectors propose that the haul and access road be designed to such a standard that it might in due course be adopted as a permanent road linking Bo’ness Road with Society Road. With that in mind, the haul road should be designed to be of adoptable width, alignment and gradient with at least one footway and cycle provision. Appropriate provision should be made for stopping buses. The route should be kept away from the houses at Clufflats as much as possible. All that would improve the access to Hopetoun House while relieving the surrounding roads of congestion. My conclusions on the future of the haul road are to be found where I deal with Group 25 and others, they are applicable to this proposal by these objectors, and there is no need to add to them here.

227. Drawing these matters together, I am not persuaded by the objectors that the Bill should be amended to make provision for the upgrading of a private track within the estate to secure an alternative access to Hopetoun House; nor am I persuaded that the haul road can be, or should be, designed to a standard which would facilitate its later adoption by City of Edinburgh Council. I conclude that the approach to access to Hopetoun House during the construction phase of the project proposed by the promoter is adequate to meet the concerns of the objector.

Recommendation

228. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

229. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

230. Accordingly, I recommend that the Committee dismiss this objection.

GROUP 16: FORTH BRIDGES BUSINESS PARK DEVELOPMENTS LTD (OBJECTOR 68)

Introduction

231. The Bill indicates that the following works are required in the vicinity of Echline Junction: improvement and realignment of the B800, including demolition of the existing bridge over the A90; upgrading of the Ferrymuir roundabout to be a traffic signal controlled junction; and environmental mitigation. All of these works are related to the proposed use of the B800 as a bus link leading to the Echline Junction and beyond.

232. The objector elected to rest on its written submissions and did not provide any oral evidence.

233. Following my review of all the written and oral evidence before me, I find that the amendments, adjustments or other alteration to the Bill which are sought by this group of objectors focus on two principal matters: the permanent acquisition of land bordering on the A8000 and at the entrance to the Ferrymuir Business and Retail Park; and the acquisition of temporary rights or temporary possession of other land at the south east edge of the Park.

Reasoning and Conclusions

234. Taking the first matter, the signalised junction proposed for the entrance to the Park has been dropped in favour of retaining and modifying the arrangements at the existing roundabout. Access for delivery vehicles can be provided to the north closer to the Echline Junction. However, I accept that there is no realistic opportunity to re-route the realignment of the B800 or to re-site the related construction operations.

235. Moving on to the second matter, I can understand why the objector wishes to have a greater degree of certainty about the timing of the works in the vicinity of Ferrymuir Business and Retail Park and, in particular, the recovery of Plot 943 which is required for the temporary realignment of the B800 and to accommodate working space associated with the road and bridgeworks. There is no dispute that a degree of certainty about the availability of land at the Park is a prerequisite for formulating the objector’s business plans. On the other hand, the successful contractor’s work programme cannot be known at this stage and that is an insuperable difficulty in a search for a definitive timeframe for either the works or the return of Plot 943. In the circumstance I can understand the promoter’s refusal to enter into legally binding commitments on these matters. Section 47 of the Bill deals with compensation; and, related to that, I note that the underlying principle in the existing compensation legislation is to put the landowner in the same position as if his property had not been taken.

236. Drawing these matters together, notwithstanding the objector’s arguments to the contrary, I conclude that what the promoter proposes by way of land acquisition and construction works is necessary for the project to proceed.

Recommendation

237. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

238. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

239. Accordingly, I recommend that the Committee dismiss this objection.

GROUP 18: SCARBOROUGH MUIR GROUP (OBJECTOR 72)

Introduction

240. The Bill indicates that the following works are required in the vicinity of North Queensferry: realignment of Ferry Toll Road; realignment of the B981 to North Queensferry; realignment of access to Castlandhill House; and environmental mitigation.

241. The Scarborough Muir Group has prepared a master plan which covers its extensive interests north of the Forth in the vicinity of the proposed bridge. The plan aims at the regeneration of the area by way of a mixed use development which includes the provision of housing and also refers to the land at St Margaret’s Marsh. That is located to the south and west of the Dunfermline Waste Water Treatment Works; and it is marked as Plot 1521 and Plot 1417A on the plans that accompany the Bill.

242. Based on all of the written and oral evidence before me, and bearing in mind those matters which are now not in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by this objector relate to only one main issue: the proposed acquisition of the St Margaret’s Marsh.

Reasoning and Conclusions

243. St Margaret’s Marsh is designated as a Site of Special Scientific Interest (SSSI) and hence is deemed to be of national importance. I accept from the promoter’s ecologist that the site was in a favourable condition when it was designated. However, under its current ownership parts of the SSSI have been de-designated and parts of the remainder are currently in unfavourable condition and likely to decline further without intervention.

244. The promoter is concerned to provide mitigation at Plot 1521 and Plot 1417A as revised and to maintain that over the 120 year design life of the bridge. The promoter has agreed with Scottish Natural Heritage that a plan will be put in place which will focus on the proper management of the SSSI not only to improve its condition but also to mitigate the adverse effects caused by the loss of 3.7 hectares at the eastern end of the marsh resultant on the partial realignment of the B981.

245. For its part, the objector intends St Margaret’s Marsh to be enhanced as an ecological habitat as part of a wider masterplan. The objector is willing to enter into a form of management agreement with the promoter and Scottish National Heritage for a period extending from the enactment of the Bill to 5 years following completion of the principal works. A long term lease of say 60 years is not considered appropriate for the circumstances; nor is there sufficient justification for the compulsory acquisition of Plot 1521 and Plot 1417A as revised.

246. The promoter acknowledges that a management agreement with the objector may be a feasible way forward; and the enhancement of the SSSI might be achieved within 5 to 10 years by correct moorland and vegetation management. Scottish Natural Heritage supports the acquisition or lease of the SSSI.

247. In assessing the merits of the possible ways forward, I find that the choice should be determined by the requirement to secure beyond doubt the proper long term management of the land in question in order to maintain and even enhance its integrity all in the national interest. Within that context, while other options may be acceptable I find that the promoter’s acquisition of Plot 1521 and Plot 1417A as revised is both appropriate and proportionate and that its approach to this issue is to be preferred to that of the objector. Of course, if the promoter does acquire the land then the objector can seek compensation.

Recommendation

248. I have set out above, for the consideration of the Committee, my reasoning and conclusions on the main issues which remain of concern for these objectors; and I have taken account of all the other matters drawn to my attention both in the written and in the oral evidence but find none of such weight that they alter my conclusions.

249. Subject to the decisions of the Committee on my findings and conclusions, and subject also to implementation of all relevant entries by the promoter in the Commitments and Undertakings Register to be issued to the Scottish Parliament, I recommend that there need be no other amendment, adjustment or other alteration in relation to the Bill regarding the matters raised by this objector.

250. Accordingly, I recommend that the Committee dismiss this objection.

GROUP 23: KEN AND CHRISTINE KIRKCALDY (OBJECTOR 82)

Introduction

251. The objectors have their home at Inchgarvie Lodge on the south side of Society Road. The business of Ken Kirkcaldy Architect established 1997 is conducted from a studio within the building.

252. The Bill indicates that the following works are required in the vicinity of Inchgarvie Lodge: southern connecting road approaching the replacement crossing, including the approach road, viaduct and southern abutment (incorporating a maintenance building); Sustainable Urban Drainage Systems (SUDS) basins in Echline fields to the east and west of the proposed route; a haul road connecting to Society Road; widening of Society Road to accommodate construction traffic travelling to the replacement crossing; and environmental mitigation including planting and noise barriers.

253. Based on all of the written and oral evidence before me, and bearing in mind those matters which are not now in dispute, I find that the amendments, adjustments or other alterations to the Bill which are sought by these objectors relate to two main issues: the proposed location of the haul road; and the impacts of noise, vibration and air pollution consequent on that for the health of those living nearby including the objectors.

Reasoning and Conclusions

254. Following my review of all the written and oral evidence before me, my conclusions on the amendments, adjustments or other alteration to the Bill which are sought by this group of objectors are as follows.

255. Issue 1: Proposed Location of the Haul Road There is no dispute that the haul road must be built early in the construction phase and that in the vicinity of Inchgarvie it will serve two main purposes: to allow access for operatives from the compound near the A904 to their work on the south foreshore; and to haul construction materials for the foundations and supports of the southern approach viaduct to the bridge.

256. A number of options for the haul road were examined before that which appears in the Bill was chosen. I must agree with the promoter that, given that the main compound will be sited to the west of the main route, the only practical approach to the south foreshore for operatives and construction materials is by way of the narrow gap between Clufflat and Inchgarvie Lodge. My conclusions on the route of the haul road proposed by the promoter and the mitigation measures to be put in place are to be found elsewhere in this report notably where I consider the concerns expressed by Group 25.

257. At the hearing, by reference to a scale diagram, the objectors described their preferred route for the haul road and how it might run from the proposed construction compound down the western side of the main southern approach within a cutting and across Society Road directly to the foreshore construction area. However, there are a number of significant disadvantages which rule out the alternative which the objectors’ favour. Thus, for instance, as a ‘principal work’ listed in Schedule 1 of the Forth Crossing Bill, the haul road must be constructed within the limits of deviation shown on the Parliamentary Plans. The proposed alternative will create difficulties for access to Inchgarvie House which could only be overcome at considerable additional cost; and part of it in that vicinity falls outside the limits of deviation provided within the Bill. Further serious disadvantages from a road engineering perspective include the topography of the proposed route and the cost of the works required to reduce steep gradients to manageable proportions while paying adequate regard to the safety of the users.

258. Drawing these matters together, and bearing in mind all of the evidence taken from other groups and my reasoning and conclusions on that, I find that the route of the haul road identified by the promoter is to be preferred to any other including that suggested by this objector.

259. Issue 2: Impacts on Health of Noise, Vibration, and Dust. The objectors have understandable concerns about the impacts of noise, vibration, dust, and air pollution on health resulting from the siting of the haul road. There is no statutory basis for a health impact study; and although there is reference to some aspects of best practice I find that the study produced by the promoter is flawed and, of little practical value to the Committee in its deliberations. There are two inter-related strands of which account must be taken: first, the actual impact on health and well being of factors including noise, vibration, dust and air pollution; and, second, the stress occasioned by concerns that these features may become at best an inconvenience, possibly a nuisance, and even detrimental to well being. The health impact assessment has focussed almost exclusively on the former and dismissed the consequences of the latter as speculative. Furthermore, I agree with the objectors that the health impact assessment has been conducted at too high a level to be of much practical value in assessing the merits of the concerns raised by particular objectors at particular locations.

260. As far as the first strand is concerned, in designing and constructing the haul road, the successful contractor will have to comply with section 66 of the Forth Crossing Bill and the requirements of the Code of Construction Practice when constructing and using the haul road. In short, the impacts must be not be worse than the residual environmental impact identified in the Environmental Statement and the contractor must employ best practical means throughout. I accept from the promoter’s noise and dust experts that the particular impacts of noise, vibration, dust and air pollution on their property, and hence their persons, will fall well below the limits which will trigger significant adverse effects on health and even quality of life. Nevertheless, I welcome the commitment to undertake rigorous monitoring of noise, dust and air pollution including the presence of particulates. I draw attention to the complaints procedure available to the objectors and the associated remedies should events not turn out as planned.

261. Turning to the second important strand, I note that the promoter is committed to an array of measures designed to engage with parties, including these objectors, with the objective of removing uncertainty and providing as much information as possible in advance of construction activity being undertaken. I find that this is a vital, but perhaps underestimated factor, in reducing the stress and anxiety which is inevitable given what the promoter has in mind adjacent to the property of these objectors. It is a matter to which the promoter will wish to give particular attention as far as these objectors are concerned; and related to that I note the commitment made by the promoter with regard to vulnerable persons including shift workers made in relation to the concerns of Group 27 and now incorporated into Revision 3 of the Code of Construction Practice (September 2010).

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Footnotes:

2 The Forth crossing project is being managed by Transport Scotland, the national transport agency for Scotland

4 Stage 1 Report on the Forth Crossing Bill, 1st Report, 2010 (Session 3), SP Paper 430
http://www.scottish.parliament.uk/s3/committees/forthXbill/reports-10/fcbr10-01-01.htm

5 Stage 1 Report on the Forth Crossing Bill, 1st Report, 2010 (Session 3), SP Paper 430, paragraph 414

8 It is noted that on 9 September, the assessor heard evidence from City of Edinburgh Council from 0930 to 1121, but the sound was not recorded. The issue of the loss of the recording was considered with the promoter and the objector at the hearing on 10 September 2010. Both parties agreed to return on 13 September to set out their respective final positions on the issues covered on 9 September.

9 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 12

10 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 13

11 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 8

14 A joint venture between Jacobs and Arup was appointed in December 2007 as consultant to Transport Scotland on this project.

15 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 30

16 Forth Crossing Bill Assessor Hearing, 13 September 2010, column 270

17 Forth Crossing Bill Assessor Hearing, 13 September 2010, column 761

18 Airdrie-Bathgate Railway and Linked Improvements Act 2007

19 Forth Crossing Bill Assessor Hearing, 2 September 2010, column 225-226

20 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 8

21 Forth Crossing Bill Assessor Hearing, 6 September 2010, column 450

22 Forth Crossing Bill Assessor Hearing, 13 September 2010

23Forth Crossing Bill Assessor Hearing, 6 September 2010, column 461

24 Forth Crossing Bill Assessor Hearing, 30 August 2010, columns 45 and 47

25 Forth Crossing Bill Assessor Hearing, 2 September 2010, column 226

26 Forth Crossing Bill Assessor Hearing, 6 September 2010, column 396

27 Forth Crossing Bill Assessor Hearing, 8 September 2010, column 629.

28 Forth Crossing Bill Assessor Hearing, 6 September 2010, column 458

29 Forth Crossing Bill Assessor Hearing, 7 September 2010, column 510

30 Transport Scotland Written Submission. West Lothian Council, Group 36
http://www.scottish.parliament.uk/s3/committees/forthXbill/documents/documents/Group36TSresponse2.pdf

31 Official report – Transport, Infrastructure and Climate Change Committee, 21 September 2010, column 3289

32 Forth Crossing Bill Assessor Hearing, 13 September 2010, column 752

33 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 9

34 Forth Crossing Bill Assessor Hearing, 9 September 2010, column 702

35 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 13-14

36 Forth Crossing Bill Assessor Hearing, 2 September 2010, column 229

37 Forth Crossing Bill Assessor Hearing, 30 August 2010, column 15