Stirling-Alloa-Kincardine Railway and Linked Improvements Bill Committee, 15 Mar 2004

Meeting date: Monday, March 15, 2004

Official Report 448KB pdf

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Proposed Amendment

Prior to the main business of the day, the committee will consider a paper from the promoter on the Balfour Street level-crossing and a proposed amendment to the bill. The committee will hear from Alison Gorlov from John Kennedy & Co, the promoter's parliamentary agent.

Mrs Gorlov, you are still under oath. On behalf of the committee, I thank you for appearing before us today. The committee has some questions for you, and I will kick off with the first couple.

When you appeared before the committee on 5 February, you indicated that you could not be certain about the persons whose rights might be affected by the proposed amendment. However, in paragraph 1 of your further memorandum, SAK/S2/04/4/32, you state:

"It is clear from all the evidence that the only rights to use the level crossing are vested in Mr Ian Brydie and Mr Ronald Anderson".

To aid the committee's understanding, will you confirm that you are fully satisfied that those two people are the only persons whose interests could be adversely affected by the proposed amendment?

Yes, I can confirm that. When I first appeared before the committee, I explained that one could not be certain about the extent of that right without undertaking considerable investigations of the surrounding properties. We have now done that. We have investigated the Registers of Scotland and have found all sorts of rights registered in relation to properties adjoining and quite some distance away from the level-crossing. However, none of those rights bears on the crossing at all. I do not profess to be an expert in Scots property law, but the way in which the various building plots were sold off when the land ceased to be agricultural land indicates to those who know more about this than I do that the rights were considered to be redundant and were not passed on.

Are you 100 per cent satisfied that those two people are the only persons whose interests could be adversely affected?

Yes, I am. I should add that the clerk, Mr Thomson, will find on his table a schedule, containing the report of some further searches. The searches that are referred to in the further memorandum relate to properties to the south of the railway line. I commissioned some further searches, just in case the one or two properties adjoining Whins Road enjoyed some rights. The searches revealed that they do not.

The committee is grateful for that. You are saying that none of the further information that arose from those searches alters your evidence in any way.

It does not alter it at all.

You are 100 per cent satisfied about that.

Yes, I am.

That is a good level of satisfaction, if I may say so.

In appendix 1 to paper SAK/S2/04/4/32, you detail the results of the searches of the registers that you had carried out. In relation to 5 (East) Clackmannan Road, Alloa, page 1 of the appendix states:

"No Information supplied by Registers of Scotland".

Will you explain to the committee what that means? A similar entry is made on the last page of appendix 1 in relation to Clackmannan Road sports centre and Alloa Trading Centre.

I can explain that. I did not undertake those searches; they were undertaken by the land referencers—the people who ascertained the property ownership details all the way along the route. I do not know why there was no return from the registers, although that occasionally happens. I do not think that it indicates that no rights were registered in respect of those properties.

I anticipate that your next question will be, "How does that affect the 100 per cent?" The answer is, not at all, given the situation of the properties. It is clear from the fact that all the other titles do not have rights against them that, when it sold off the plots, the Mar estate simply did not pass on the relevant rights.

Okay. That was not going to be my next question, but thank you for that anyway.

Of 23 Clackmannan Road, the second page of the appendix states: "Not listed". Again, can you explain what that means?

It means that it is not registered, sir. Not everywhere is.

Of 3 Bruce Street, on page 6, the appendix says:

"Not registered on Land Register or Register of Sasines".

Can you explain that and what the effect of it is?

Mr McKie will correct me if I get this wrong—he is a Scottish solicitor and I am not. The Register of Sasines is an ancient document that contains records of deeds affecting land. I think that I am correct in saying that it is not obligatory to register in that register. It is a difficult register to search. The properties in Bruce Street are relatively new, so there might not be much to register or that anybody bothered to register. Mr McKie will tell me whether that is normal practice. I understand that the land register is a relatively new document that has very little in it because it was established only recently.

I understand the difference between the two. I am just interested to know when the land register became effective for this area. Perhaps somebody can tell us that.

I think that Mr McKie is the person to answer that question.

Regrettably, I am not in a position to answer that at the moment, but I can come back to you in a fairly short timescale, if that is okay.

The committee would be appreciative of that.

Why might some properties not be registered?

Perhaps we could return to that at another time.

I would prefer that. I was not personally responsible for compiling appendix 1. Although I have looked at it, I am not in a position to answer specific points in detail. However, I shall get back to you on that.

Thank you, Mr McKie.

Paragraph 7 of the memorandum states that both Mr Brydie and Mr Anderson

"are aware of the existence of the rights over the crossing, Mr Brydie having alerted the Promoter to their existence."

You have been in correspondence with Mr Brydie's solicitors. What steps have been taken to make Mr Anderson aware of the situation? Is he also aware of the proposed amendment?

The proposed amendment has not been notified to anybody specifically. The solicitors, Caesar & Howie Ltd, wrote on behalf of Mr Brydie. Perhaps I overstated my understanding of the position. We understand that Mr Anderson and Mr Brydie are business partners. Therefore, we take it that Mr Anderson knows what Mr Brydie knows.

One option that is open to the committee—to which you allude in paragraph 14 of the memorandum—is to agree that the normal 60-day objection period will apply in the first instance but will be reduced if Mr Brydie and Mr Anderson either submit an objection or indicate to the committee that they do not wish to object. I am unclear about your reasoning for not taking that approach. Perhaps you can explain why you do not think that that procedure would be appropriate in the circumstances.

I am not saying that it would not be appropriate to adopt that procedure; I am distinguishing between that and the length of the initial period, which are two distinct issues. Whatever the length of the objection period, it makes sense that, should those two object, the period should stop as soon as they have objected, but that is not the same thing as asking what the length of the objection period should be.

The thinking about the matter in the further memorandum is that the period must fairly allow Messrs Brydie and Anderson to decide what action, if any, they wish to take, and to take it. We submit that 21 days allows for that and that 60 days is far more than the two gentlemen need, given their state of knowledge and their apparent access to legal advice, should they need it. That is one side of the issue. The other side is the convenience of these proceedings and the means of conducting them as expeditiously as possible, which I know the committee is concerned to do.

Also in paragraph 14, you appear to suggest that if the landowners were going to object, you would have had a reply to your letter of 12 January to say so. However, is it not fair to say that the objectors might have their own reasons for not responding—to preserve their position, for example—and that that does not necessarily imply that they will not object to the proposed amendment?

I accept that it is not definitive proof that they will not object. This is no criticism of Caesar & Howie, it is simply an observation, but I wrote a letter to Messrs Caesar and Howie and I have had no acknowledgement of it. I know that they got the letter—I believe that it was sent by fax.

There can be no question of prejudicing one's position if one says at the outset, "I object." If there had been an immediate objection to the proposal, I confess that I would have expected the solicitors to say so when acknowledging the letter without any fear of prejudice at all, because it could not make any difference to them. If their clients object and say so, they should say so at the outset.

Could I go back to one point, in connection with the earlier question about the length of the objection period versus calling a halt if there were an objection? It is in the nature of many people that if one is given a period within which to do something, one tends to run up against the deadline. For most of us, that is just human nature. One of the reasons for considering the initial length of the period, rather than relying on calling a halt if somebody makes an objection, is just that—the fact that, given 60 days, one would tend to make it 58 to 60 days before one put in one's objection. If one had 40 days, one would make it 39. If one had 21 days, it would be 20. Because of that, it is relevant for the committee to consider the overall objection period as a discrete issue.

Thank you for that reflection.

Should the committee agree to your request to reduce the period to 21 days, my understanding is that the promoter will be required to provide a supplementary memorandum for the Parliament and Alloa library, serve an affected persons notification letter on both Mr Anderson and Mr Brydie, and advertise in the Alloa and Hillfoots Wee County News. Following the second week of the advertisement, the objection period will begin. Is that your understanding of the procedure? If so, can you advise the committee when you would propose to start that procedure—that is, when do you plan to advertise and when do you expect the objection period to commence?

We are in the hands of the committee, but that is the procedure that the committee has indicated it wants. It replicates what was done for the bill. It makes the issue a mini bill, as it were—a bill within a bill. We will publish our notice at the first available date, which depends, I am afraid, on the Alloa and Hillfoots Wee County News rather than ourselves. As I understand it, its copy date is a Monday, so we will have missed it today, and it will have to be next Monday for next Thursday's paper, which will be the start date. That will be the first week. We are looking at 21 days starting the following week.

What impact do you envisage that will have on the overall timetable for the bill?

I do not think that it should prejudice the overall timetable.

Is there anything further that you want to say in relation to this matter?

No, apart from the observation, apropos of your last question, that a period of 21 days might alter the committee's timetable, but not the overall timetable for the bill. I hazard a guess that that would not be the case if we considered a period of 60 days, which would represent a very lengthy delay. If the period of objection ran until the deadline, that would cause an overall delay.

On behalf of the committee, I thank you for appearing before us today and for answering our questions. The committee will consider your paper and the answers that you have given before reaching a decision. If possible, the committee will report its decision this afternoon.