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An Act to confirm a Provisional Order under the Private Legislation Procedure (Scotland) Act 1936, relating to City of Edinburgh (Guided Busways).
[28th July 1998]
WHEREAS the Provisional Order set forth in the Schedule hereunto annexed has been made by the Secretary of State under the provisions of the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936, and it is requisite that the said Order should be confirmed by Parliament:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
The provisional Order contained in the Schedule hereunto annexed is hereby confirmed.
This Act may be cited as the City of Edinburgh (Guided Busways) Order Confirmation Act 1998.
Part I
Preliminary
1. Short title.
2. Commencement.
3. Interpretation.
4. Incorporation of Acts.
Part II
Lands
5. Power to take lands.
6. Acquisition of part only of certain properties.
7. Power to acquire servitudes compulsorily in certain cases.
8. Temporary possession of land for construction of works.
9. Temporary possession of land for maintenance of works.
10. Persons under disability may grant servitudes, etc.
11. Extinguishment of private rights of way over lands acquired.
12. Power to enter upon lands and buildings for survey and valuation.
13. Further powers as to entry on lands.
14. Power of entry on lands compulsorily acquired.
15. Disregard of recent improvements and interests.
16. Compensation in respect of depreciation in value of interest in land subject to standard security. Section
17. Set-off of betterment against compensation.
18. Agreements with owners of property.
19. Power to reinstate owners of property.
20. Period for compulsory purchase of lands.
21. Power as to acquisition and use of additional lands.
22. Power to retain, sell, etc., lands.
23. Correction of errors in deposited plans and book of reference.
Part III
Works
24. Power to execute works.
25. Subsidiary works.
26. Power to deviate.
27. Power to stop up, etc., roads.
28. Power to alter roads, etc., temporarily.
29. Connection of drains, etc., with streams, etc.
30. Vesting and disposal of materials.
31. Period for completion of works.
32. Priority for guided vehicles.
33. Power to fell or lop trees.
34. Railway enactments.
35. Powers as to Edinburgh Park and Hermiston Gait.
Part IV
Protective provisions
36. For protection of electricity, gas and water and sewerage undertakers.
37. For protection of Railtrack.
38. Agreements with British Railways Board.
39. For protection of telecommunications operators.
40. For protection of Coal Authority.
Part V
Penalty fares
41. Interpretation for Part V.
42. Operation of Part V.
43. Penalty fares.
44. Amount of penalty fare.
45. Document to be issued in connection with penalty fare requirement.
46. Notice of penalty fare provisions.
47. Supplementary provisions.
48. Exclusion of double liability.
49. Orders under this Part.
Part VI
Miscellaneous and general Section
50. Powers of disposal, agreements for operation, etc.
51. Disapplication.
52. Concessionary travel.
53. Fuel duty grants.
54. Registration of guided vehicle services.
55. Trespass.
56. Obstruction to operation.
57. Obstruction to construction.
58. Power to contract for police services.
59. Extension of time may be authorised.
60. Powers to owners and lessees to give notice as to purchase of lands.
61. Certification of plans, etc.
62. Service of notices.
63. No double recovery.
64. Saving for town and country planning.
65. Arbitration.
Schedules:
Schedule 1
Purchase of certain land.
Schedule 2
Land of which temporary possession may be taken.
Schedule 3
Authorised works—
Part I
Description of works specifically authorised.
Part II
Description of further works.
Schedule 4
Roads to be stopped up.
Schedule 5
Roads and ways to be temporarily stopped up.
Provisional Order to authorise The City of Edinburgh Council to develop guided busways between Edinburgh airport and the city centre of Edinburgh for the provision of guided vehicle services; to authorise the construction of works and the purchase of lands; to confer further powers on the Council; and for other purposes.
WHEREAS—
(1) By virtue of section 150 of the [1973 c. 65.] Local Government (Scotland) Act 1973 The City of Edinburgh Council (hereinafter called “the Council”) are vested with wide powers in relation to public transport for the city of Edinburgh:
(2) And whereas by section 151(1) of the [1984 c. 54.] Roads (Scotland) Act 1984 the Council are the local roads authority for the city of Edinburgh:
(3) And whereas by section 121A of the [1984 c. 27.] Road Traffic Regulation Act 1984 the Council are the traffic authority for the city of Edinburgh:
(4) And whereas by section 63 of the [1985 c. 67.] Transport Act 1985 the Council are under a general duty to secure the provision of public transport services in the city of Edinburgh:
(5) And whereas the provision of guided busways between Edinburgh airport and the city centre of Edinburgh for guided vehicle services would be of public advantage:
(6) And whereas it is expedient that the Council should be authorised to construct the works authorised by this Order and to acquire or use the lands referred to in this Order:
(7) And whereas it is expedient that the other powers in this Order should be conferred upon the Council and that the other provisions of this Order should be enacted:
(8) And whereas plans and sections showing the lines and levels of the works authorised by this Order, with a book of reference to such plans containing the names of the owners and lessees or reputed owners and lessees and of the occupiers of the lands and other property acquired or which may be taken or used for the purposes or under the powers of this Order, have been deposited with the sheriff clerk of the Edinburgh sheriff court district:
(9) And whereas the purposes of this Order cannot be effected without an Order confirmed by Parliament under the provisions of the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936:
Now, therefore, in pursuance of the powers contained in the last mentioned Act, the Secretary of State orders as follows:—
This Order may be cited for all purposes as the City of Edinburgh (Guided Busways) Order 1998.
(1) Except as provided in subsection (2) below, this Order shall come into force on the day on which the Act of Parliament confirming it is enacted.
(2) Section 51 (Disapplication) of this Order shall come into force on such day as the Secretary of State may specify by Order made by statutory instrument.
(1) In this Order terms, words and expressions to which meanings are assigned by any public Act wholly or partially incorporated with this Order shall, subject to the provisions of this Order, have the said respective meanings unless there is something in the subject or context inconsistent with or repugnant to such construction.
(2) The following words and expressions in this Order have, unless there is something in the subject or context repugnant to such construction, the meanings hereby assigned to them, that is to say:—
“Act of 1984” means the [1984 c. 12.] Telecommunications Act 1984;
“Act of 1997” means the [1997 c. 8.] Town and Country Planning (Scotland) Act 1997;
“building” includes structure or any other erection;
“carriageway” has the meaning given to it by section 151 of the [1984 c. 54.] Roads (Scotland) Act 1984;
“construct” includes make, build, erect, install, provide, execute, place, alter, maintain and renew and“construction” shall be construed accordingly;
“Council” means The City of Edinburgh Council;
“council solicitor” means the solicitor to the Council;
“deposited plans”,“deposited sections” and“deposited book of reference” mean respectively the plans, sections and book of reference which have been deposited in connection with this Order;
“enactment” means any enactment, whether public general or local, and includes an enactment in this Order and in the Act confirming this Order and any order, byelaw, rule, regulation, scheme and other instrument having effect by virtue of an enactment;
“existing” means existing at the commencement of this Order;
“footpath” and“footway” have the meanings given to them by section 151 of the Roads (Scotland) Act 1984;
“guided busway” means a way for the passage of vehicles guided wholly or mainly by a means external to the vehicle (whether connected to the vehicle or not) and not being a railway or a road;
“guided vehicle” means a vehicle constructed or adapted for use on a guided busway whether or not it is being so used;
“guided vehicle service” means a vehicular transport service whereby guided vehicles run for all or part of their journey on a guided busway authorised by this Order;
“land” includes land covered by water, any interest in land and any servitude or rights in or over land;
“the Land Compensation Act” means the [1963 c. 51.] Land Compensation (Scotland) Act 1963;
“the limits of deviation” means the limits so shown on the deposited plans;
“the limits of land to be acquired or used” means the limits marked“limit of land to be acquired or used” on the deposited plans;
“maintain” includes inspect, repair, adjust, alter, remove, reconstruct and replace and“maintenance” shall be construed accordingly;
“operational land” has the meaning assigned to it by section 215 of the Act of 1997;
“operator”, in relation to a telecommunications code system, means the person authorised by a licence under section 7 of the Act of 1984 to run such a system;
“Railtrack” means Railtrack PLC, and any associated company of Railtrack PLC which holds property for railway purposes, and for the purpose of this definition,“associated company” means any company which is (within the meaning of section 736 of the [1985 c. 6.] Companies Act 1985) the holding company of Railtrack PLC, a subsidiary of Railtrack PLC or another subsidiary of the holding company of Railtrack PLC;
“railway property” means—
any railway of Railtrack within existing statutory limits and any works connected therewith and includes any land within the said limits held or used for the purpose of any such railway or works;
the railway stations constructed in Edinburgh Park on the Edinburgh to Glasgow (Queen Street) Line and at Gogar, and any lands held or used as part of or in connection with those stations; and
Work No. 7A and any lands held or used for the purpose of that work;
“road” has the meaning given to it by section 151 of the [1984 c. 54.] Roads (Scotland) Act 1984;
“sheriff” means the sheriff principal of the sheriffdom of Lothian and Borders and includes any sheriff of the Edinburgh sheriff court district;
“sheriff clerk” means the sheriff clerk of the Edinburgh sheriff court district;
“telecommunication apparatus” has the same meaning as in paragraph 1(1) of Schedule 2 to the Act of 1984;
“telecommunications code system” means a telecommunication system, the running of which is authorised by a licence under section 7 of the Act of 1984;
“traffic sign” has the meaning given to it by section 64 of the [1984 c. 27.] Road Traffic Regulation Act 1984;
“tribunal” means the Lands Tribunal for Scotland; and
“works” means the works authorised by this Order.
(3) All areas, directions, distances, lengths and widths stated in any description of works, powers or lands other than in section 26 (Power to deviate) of this Order shall be construed as if the words “or thereby” were inserted after each such area, direction, distance, length and width.
(1) The Lands Clauses Acts (except sections 120 to 125 of the [1845 c. 19.] Lands Clauses Consolidation (Scotland) Act 1845), so far as they are applicable for the purposes of, and are not varied by or inconsistent with, the provisions of this Order, are incorporated with this Order.
(2) In construing, for the purposes of this Order, the enactments incorporated with this Order—
(a) this Order shall be deemed to be the special Act;
(b) the Council shall be deemed to be the promoter of the undertaking or the company; and
(c) the works shall be deemed to be the works or the undertaking.
Subject to the provisions of this Order, the Council may compulsorily enter upon, take and use all or any of—
(a) the lands shown on the deposited plans and described in the deposited book of reference which they may require for the purposes of the works; including for the improvement and development of any lands fronting or abutting on or adjacent to a guided busway or any road or other way or for the purposes of recoupment, reinstatement or exchange or for any other purposes of this Order; and
(b) so much of the land specified in columns (1) and (2) of Schedule 1 to this Order (being land shown on the deposited plans as within the limits of land to be acquired or used) as may be required for the purpose specified in relation to that land in column (3) of that Schedule.
(1) For the purposes of this Order, the following provisions of this section shall have effect in substitution for section 90 of the Lands Clauses Consolidation (Scotland) Act 1845.
(2) No person shall be required to sell a part only of any house, building or factory, or of a park or garden belonging to a house or other premises, if he is willing and able to sell the whole of the house, building, factory, park or garden unless the tribunal determines—
(a) in the case of a house, building or factory that such part as is proposed to be taken can be taken without material detriment to the house, building or factory; or
(b) in the case of a park or garden that such part as aforesaid can be taken without seriously affecting the amenity or convenience of the house or other premises to which it belongs.
(3) If the tribunal determines as aforesaid, compensation shall be awarded in respect of any loss due to the severance of the part proposed to be taken in addition to the value of that part and thereupon the person interested shall be required to sell to the Council that part of the house, building, factory, park or garden.
(4) In determining whether—
(a) a part of a house, building or factory can be taken without material detriment to the house, building or factory; or
(b) part of a park or garden belonging to a house or other premises can be taken without seriously affecting the amenity or convenience of the house;
the tribunal shall—
(i) take into account not only the effect of the severance but also the use to be made of the part proposed to be acquired and, in a case where the part is proposed to be acquired for works or other purposes extending to other land, the effect of the whole of the works and the use to be made of the other land; and
(ii) have regard not only to the right or interest which is to be acquired in or over the land, but also to any adjoining land belonging to the same owner and subject to compulsory acquisition by virtue of this Order.
Notwithstanding anything in this Order or in any Act wholly or partly incorporated herewith, the Council may, instead of acquiring any land that they are authorised to acquire compulsorily under this Order, purchase and acquire compulsorily such servitudes or rights over or in any such lands as they may require for the purpose of constructing and using or removing the works or for the purpose of obtaining access to the works, by creating as well as by purchasing such servitudes or other rights already in existence, without the Council being obliged or compelled to purchase any greater interest in, under or over the same, and the provisions of the Lands Clauses Acts shall extend and apply to such servitudes and rights as if the same were lands within the meaning of those Acts.
(1) The Council may in connection with the carrying out of the works authorised by this Order—
(a) enter upon and take temporary possession of the land specified in columns (1) and (2) of Schedule 2 to this Order for the purpose specified in relation to that land in column (3) of that Schedule;
(b) remove any buildings and vegetation from that land; and
(c) construct temporary works (including the provision of means of access) and buildings on the land.
(2) All private rights of way over any land of which the Council may take temporary possession under this section shall be suspended and unenforceable against the Council for so long as the Council remain in lawful possession of the land.
(3) Not less than 28 days before entering upon and taking temporary possession of land under this section the Council shall give notice of the intended entry to the owners and occupiers of the land.
The Council shall not, without the agreement of the owners and occupiers of the land, remain in possession of any land under this section after the end of the period of two years beginning with the date of completion of the work or works specified in relation to that land in column (4) of Schedule 2 to this Order.
(b) Before giving up possession of the land, the Council shall remove all temporary works and structures constructed by them on the land and, subject to any agreement to the contrary with the owners and occupiers of the land, restore the land to the reasonable satisfaction of the owners and occupiers; but the Council shall not be required to replace a building removed by them under this section.
The Council shall compensate the owners and occupiers of land of which temporary possession is taken under this section (including any person entitled to the enjoyment of those private rights of way referred to in subsection (2) above) for any loss or damage which may result to them by reason of the exercise of the powers of this section in relation to that land.
(b) Without prejudice to section 63 (No double recovery) of this Order, nothing in this section shall relieve the Council from liability to compensate under any enactment, in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under paragraph (a) above.
(6) Any dispute as to a person’s entitlement to compensation under subsection (5)(a) above or as to the amount thereof shall be determined in accordance with the provisions of the Land Compensation Act.
(7) The powers of compulsory purchase of land conferred by this Order shall not apply in relation to the land referred to in subsection (1) above except that the Council shall not be precluded from purchasing new rights over any part of that land under section 7 (Power to acquire servitudes compulsorily in certain cases) of this Order.
(8) Where the Council take possession of land under this section, they shall not be required to purchase the land or any interest in it.
(1) At any time during the maintenance period relating to any of the works authorised by this Order the Council may—
(a) enter upon and take temporary possession of any land which is—
(i) within 20 metres from that work; and
(ii) within the limits of deviation for the works or the limits of land to be acquired or used;
if such possession is reasonably required for the purpose of, or in connection with maintaining the work, or any ancillary works connected with it; and
(b) construct such temporary works (including the provision of means of access) and buildings on the land as may be reasonably necessary for that purpose.
(2) Subsection (1) above shall not authorise the Council to take temporary possession of—
(a) any house or garden belonging to a house; or
(b) any building (other than a house) if it is for the time being occupied.
(3) Not less than 28 days before entering upon and taking temporary possession of land under this section the Council shall serve notice of the intended entry on the owners and occupiers of the land.
(4) The Council may only remain in possession of land under this section for so long as may be reasonably necessary to carry out the maintenance works for which possession of the land was taken.
(5) Before giving up possession of land of which temporary possession has been taken under this section, the Council shall remove all temporary works and restore the land to the reasonable satisfaction of the owners of the land.
(6) The Council shall pay compensation to the owners and occupiers of land of which temporary possession is taken under this section for any loss or damage arising from the exercise in relation to the land of the powers conferred by this section.
(7) Any dispute as to a person’s entitlement to compensation under subsection (6) above, or as to the amount of the compensation, shall be determined in accordance with the provisions of the Land Compensation Act.
(8) Without prejudice to section 63 (No double recovery) of this Order, nothing in this section shall affect any liability to pay compensation under any enactment in respect of loss or damage arising from the execution of any works, other than loss or damage for which compensation is payable under subsection (6) above.
(9) Where the Council take possession of land under this section, they shall not be required to purchase the land or any interest in it.
(10) In this section—
(a) “the maintenance period” in relation to any of the authorised works, means the period of 5 years beginning with the date on which that work is opened for use; and
(b) any reference to land within a specified distance of a work includes, in the case of a work under the surface of the ground, a reference to land within the specified distance of the point on the surface below which the work is situated.
(1) Persons empowered by the Lands Clauses Acts to sell and convey or dispose of lands may, if they think fit, subject to the provisions of those Acts and of this Order, grant to the Council any servitude, right or privilege (not being a servitude, right or privilege of water in which persons other than the grantors have an interest) required for any of the purposes of this Order in, over or affecting any such lands.
(2) The provisions of the said Acts with respect to lands and feu duties or ground annuals so far as the same are applicable in this behalf shall extend and apply to such grants and to such servitudes, rights and privileges as aforesaid respectively.
(1) All private rights of way over any lands which may under the powers of this Order be acquired compulsorily shall be extinguished as from the date of such acquisition whether compulsorily or by agreement, or on the entry on the land under section 14 (Power of entry on lands compulsorily acquired) of this Order whichever is the sooner.
(2) The Council shall make compensation to all parties interested in respect of any such rights.
(3) Such compensation, in the case of difference, shall be determined in accordance with the provisions of the Land Compensation Act.
Subject to the provisions of this Order, the Council and their surveyors and officers, and any other person duly authorised in writing under the hand of the council solicitor, may at all reasonable times in the day upon giving on the first occasion not less than seven days and on subsequent occasions not less than three days' previous notice in writing to the occupier, enter upon and into the lands and buildings by this Order authorised to be taken or used or any of them, for the purpose of surveying and valuing the said lands and buildings.
(1) Subject to the provisions of this Order, the powers of entry upon lands conferred upon the Council and their surveyors, officers and others by section 12 (Power to enter upon lands and buildings for survey and valuation) of this Order shall be construed as including power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals therein:
Provided that such power shall not be exercised with respect to any land unless notice of the intention of the Council to do so has been included, and the nature of the operations proposed to be carried out has been specified, in the notice required to be given to the occupier of the land pursuant to the said section and in any such case the Council shall not be required to give further notice in respect of any subsequent entry on the land for the purposes of carrying out the operations specified in the notice.
(2) In the exercise of the powers conferred by this section, the Council shall cause as little detriment and inconvenience to any person as circumstances allow and shall make compensation to the owners and occupiers of any lands or the owners of any services injuriously affected by the exercise of such powers, such compensation in case of difference to be determined in accordance with the provisions of the Land Compensation Act.
City of Edinburgh (Guided Busways) Order Confirmation Act 1998