Waverley Railway (Scotland) Act 2006

• “Stow maps, plans and sections” means the volume of the Parliamentary plans entitled “Maps, Plans and Sections – Stow Station”, which was submitted to the Committee in connection with the Bill for this Act, a copy of which has been lodged with the Clerk of the Parliament to be held with the accompanying documents relating to the Bill for this Act;

• “Stow plan” means the plan forming part of the Stow maps, plans and sections; and

• “the tribunal” means the Lands Tribunal for Scotland.

• (2) Except in relation to section 4 above, all directions, distances and lengths stated in any description of works, powers or lands in this Act shall be construed as if the words “ or thereby ” were inserted after each such direction, distance and length.

Short title

54

This Act may be cited as the Waverley Railway (Scotland) Act 2006.

SCHEDULE 1

In the local government areas of Midlothian and Scottish Borders a railway from the Millerhill Marshalling Yard in Midlothian to Tweedbank in Scottish Borders substantially following the route of the former Waverley railway, including stations at Shawfair, Eskbank, Newtongrange, Gorebridge, Stow, Galashiels and Tweedbank, and comprising—

In the local government area of Midlothian—

Railway between the Millerhill Marshalling Yard and Old Dalkeith Road—

Railway between Old Dalkeith Road and the Butlerfield Industrial Estate—

Railway between Butlerfield Industrial Estate and Borthwick Mains Cottages—

In the local government areas of Midlothian and Scottish Borders—

Railway between Borthwick Mains Cottages and Cowbraehill—

Railway between Cowbraehill and Stagebank—

In the local government area of Scottish Borders—

Railway between Stagebank and Hazelbank Quarry—

Railway between Hazelbank Quarry and Stow—

Railway between Stow and Bowland Bridge—

Railway between Bowland Bridge and Torwoodlee—

Railway between Torwoodlee and Tweedbank—

SCHEDULE 2

1

Stations, buildings, platforms, junctions and stopping places.

2

Bridges, subways, stairs, lifts, escalators, roundabouts and means of access.

3

Junctions and communications with, and widening of, any road, path or way.

4

Works for the provision of apparatus, plant or machinery and for the accommodation of such works, including mains, sewers, pipes, drains, cables, lights, conduits and culverts.

5

Works for the strengthening, underpinning, protection, alteration or demolition of any building or structure.

6

Works or operations to stabilise the condition of any land or for the purposes of flood prevention.

7

Works to alter the course of, or otherwise interfere with, non-navigable rivers, streams or watercourses.

8

Works to alter the position of any existing apparatus or any existing street furniture, including the alteration of the position of existing works of the sort described in paragraph 4 above.

9

Without prejudice to the generality of paragraph 8 above, works to alter the position of any railway track or other railway apparatus.

10

Landscaping, ecological and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised works.

11

Works for the benefit or protection of premises affected by the authorised works.

12

The removal by the authorised undertaker of any works constructed by it pursuant to this Act which have been constructed as temporary works or which it no longer requires.

13

Such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with, or in consequence of, the construction of the authorised works.

SCHEDULE 3

Part 1 — Continuing private crossings

Part 2 — Private crossings to be stopped up and discontinued

SCHEDULE 4

Part 1 — Roads to be permanently stopped up

Part 2 — Roads to be temporarily stopped up

SCHEDULE 5

1

Safeguarding works may be carried out—

• (a) at any time before or during the construction in the vicinity of the building of any part of the authorised works; or

• (b) after the completion of the construction of that part of the authorised works, at any time up to the end of the period of five years beginning with the day on which that part of the authorised works is first opened for use.

2

For the purpose of determining how the powers of section 12 of this Act are to be exercised, the authorised undertaker may enter and survey any building falling within subsection (1) of that section and any land belonging to it.

3

For the purpose of carrying out safeguarding works to a building under section 12 of this Act, the authorised undertaker may (subject to paragraphs 4 and 5 below)—

• (a) enter the building and any land belonging to it; and

• (b) where the works cannot be carried out reasonably conveniently without entering land adjacent to the building, enter the adjacent land (but not any building erected on it).

4

Before exercising—

• (a) a right under section 12 of this Act above to carry out safeguarding works to a building;

• (b) a right under paragraph 2 above to enter a building;

• (c) a right under paragraph 3(a) above to enter a building or land; or

• (d) a right under paragraph 3(b) above to enter land,

the authorised undertaker shall, except in the case of emergency, serve on the owners and occupiers of the building or land not less than 14 days' notice of its intention to exercise that right; and in a case falling within sub-paragraph (a) or (c) above the notice shall also specify the safeguarding works proposed to be carried out.

5

Where notice is served under paragraph 4(a), (c) or (d) above, the owner or occupier of the building or land concerned may, by serving a counter-notice within the period of 10 days beginning with the day on which the notice was served, require the question whether it is necessary or expedient to carry out the safeguarding works or to enter the building or land to be referred to arbitration under section 34 of this Act.

6

The authorised undertaker shall compensate the owners and occupiers of any building or land in relation to which the powers of this schedule have been exercised for any loss or damage arising to them by reason of the exercise of those powers.

7

Where—

• (a) safeguarding works to a building are carried out under section 12 of this Act; and

• (b) within the period of five years beginning with the day on which the part of the authorised works constructed in the vicinity of the building is first opened for use, it appears that the safeguarding works are inadequate to protect the building against damage caused by the construction or operation of that part of the authorised works,

the authorised undertaker shall compensate the owners and occupiers of the building for any damage sustained by them.

8

Nothing in this schedule shall relieve the authorised undertaker from any liability to pay compensation under the Land Clauses Acts.

9

Any compensation payable under paragraph 7 above or under the Lands Clauses Acts shall be determined, in case of dispute, under the 1963 Act.

SCHEDULE 6

Part 1 — Acquisition of land

Part 2 — Acquisition of rights only

SCHEDULE 7

SCHEDULE 8

1

Subject to the provisions of this schedule, sections 224 to 227 of the 1997 Act (power to extinguish rights of statutory undertakers, etc. and power of statutory undertakers, etc. to remove or re-site apparatus) shall apply in relation to any land which has been acquired under this Act, or which is held by the authorised undertaker and is appropriated or used (or about to be used) by it for the purposes of this Act or for purposes connected with this Act.

2

All such other provisions of the 1997 Act as apply for the purposes of the provisions applied by paragraph 1 above (including sections 228 to 231, which contain provisions consequential on the extinguishment of any rights under sections 224 and 225, and sections 232(2) to (4), 233 and 235, which provide for the payment of compensation) shall have effect accordingly.

3

In the provisions of the 1997 Act, as applied by paragraphs 1 and 2 above—

• (a) references to the purpose of carrying out any development with a view to which land was acquired or appropriated are references to the purpose of carrying out the authorised works; and

• (b) references to land acquired or appropriated as mentioned in section 224(1) of the 1997 Act are references to land acquired, appropriated or used as mentioned in paragraph 1 above.

4

Where any apparatus of a utility undertaker or of a public telecommunications operator is removed in pursuance of a notice or order given or made under section 224, 225 or 226 of the 1997 Act, as applied by paragraph 1 above, any person who is the owner or occupier of premises to which a supply was given from that apparatus shall be entitled to recover from the authorised undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of effecting a connection between the premises and any other apparatus from which a supply is given.

5

Paragraph 4 above shall not apply in the case of the removal of a public sewer, but where such a sewer is removed in pursuance of such a notice or order as is mentioned in that paragraph, any person who is—

• (a) the owner or occupier of premises the drains of which communicated with that sewer; or

• (b) the owner of a private sewer which communicated with that sewer,

shall be entitled to recover from the authorised undertaker compensation in respect of expenditure reasonably incurred by that person, in consequence of the removal, for the purpose of making the person's drain or sewer communicate with any other public sewer or with a private sewage disposal plant.

6

The provisions of the 1997 Act mentioned in paragraphs 1 and 2 above, as applied by those paragraphs, shall not have effect in relation to apparatus as respects which Part IV of the 1991 Act applies.

7

In this schedule—

• “gas transporter” has the meaning given by section 7(1) of the Gas Act 1986 (c. 44);

• “public telecommunications operator” means—a person authorised, by a licence to which section 9 of the Telecommunications Act 1984 (c. 12) applies, to run a public telecommunications system; ora person to whom the telecommunications code has been applied pursuant to section 10 of that Act; and

• “utility undertaker” means a person who is—authorised by any enactment to carry on an undertaking for the supply of water;a gas transporter; orthe holder of a licence under section 6 of the Electricity Act 1989 (c. 29),and who is, or is deemed to be, a statutory undertaker within the meaning of section 214 of the 1997 Act.

SCHEDULE 9

1

• (1) Subject to sub-paragraph (2) below, if a listed building was such a building immediately before 21 March 2003 and is specified in columns (1), (2) and (3) of the following table—

• (a) section 6 of the Listed Buildings Act (restriction on works affecting listed buildings) shall not apply to works carried out in relation to the building in exercise of the powers conferred by Part 1 of this Act;

• (b) to the extent that a notice issued in relation to the building under section 34(1) of that Act (enforcement) requires the taking of steps which would be rendered ineffective, or substantially ineffective, by works proposed to be carried out in exercise of the powers conferred by Part 1 of this Act, it shall not have effect or, as the case may be, shall cease to have effect;

• (c) no steps may be taken in relation to the building under section 38(1) of that Act (execution of works specified in notice under section 34(1)) which would be rendered ineffective, or substantially ineffective, by such works as are mentioned in paragraph (b) above; and

• (d) no works may be executed for the preservation of the building under section 49 of that Act (urgent works to preserve unoccupied listed buildings) which would be rendered ineffective, or substantially ineffective, by such works as are mentioned in paragraph (b) above.

• (2) In the case of any building specified in columns (1), (2) and (3) of the following table in relation to which any description of works is specified in column (4) of that table, sub-paragraph (1) above shall have effect as if the references to works carried out in exercise of the powers conferred by Part 1 of this Act were, so far as concerns works of demolition or alteration (as opposed to extension), to works so carried out which are of a description specified in relation to it in that column.

• (3) Paragraphs (a) to (d) of sub-paragraph (1) above shall also apply in relation to a listed building which was not such a building immediately before 21 March 2003.

• (4) If a building included in a conservation area and not a listed building—

• (a) was not included in a conservation area immediately before 21 March 2003; or

• (b) was included in such an area immediately before that date and is specified in columns (1), (2) and (3) of the following table,

section 66 of the Listed Buildings Act (control of demolition in conservation areas) shall not apply to the demolition of the building in exercise of the powers conferred by Part 1 of this Act.

• (5) Anything which, by virtue of section 1(4) of the Listed Buildings Act (objects or structures fixed to, or within the curtilage of, a building), is treated as part of a building for the purposes of that Act shall be treated as part of the building for the purposes of this paragraph.

Local government area	Sheet of Parliamentary plans	Buildings authorised to be demolished or altered	Limit of authorised demolition or alteration
(1)	(2)	(3)	(4)
Midlothian	7	Glenesk Viaduct, Dalkeith	Structural repairs to the spandrels and wingwalls.Provision of cantilevered walkway.
Midlothian	8	Former Eskbank and Dalkeith Station platforms	Re-pointing and masonry repairs.
Midlothian	8	Melville Road Bridge, Eskbank (Overbridge 13)	Repairs and re-pointing to masonry and brickwork.Waterproofing works to bridge arch.
Midlothian	8	Lasswade Road Bridge, Eskbank (Overbridge 14)	Re-pointing of bridge arch ring.
Midlothian	8	Bonnyrigg Road, Eskbank (Overbridge 15)	Re-pointing.Replacement of damaged stonework.
Midlothian	11	Dalhousie Mains Bridge, Lothian Bridge (Underbridge 17)	Re-pointing and repairs to abutments and wingwalls.Reconstruction of spandrel wall on east side of bridge.Replacement of handrails.Cleaning and repainting of cantilever supports.
Midlothian	11, 12	Newbattle Viaduct, Lothian Bridge	Re-pointing, repairs and replacement of bricks.
Midlothian	13	Murderdean Road Bridge, Newtongrange (Overbridge 19)	Repairs and re-pointing to masonry.Removal of infill material.
Midlothian	15	Redhaugh Farm Bridge, Redhaugh (Overbridge 21)	Repairs and re-pointing to abutments and wingwalls.Shot blast cleaning and painting bridge girders.Construction of parapets to replace existing handrails.
Midlothian	16	Povert Road Bridge, Redhaugh(Overbridge 22)	Repairs and re-pointing.Waterproofing works to bridge arch.
Midlothian	21	Existing Footbridge, Fushiebridge (Footbridge 28)	Removal of bridge superstructure.
Midlothian	21	Former Fushiebridge Station Bridge, Fushiebridge (Overbridge 29)	Repairs and re-pointing.Waterproofing works to bridge arch.
Midlothian	22	Catcune Farm Bridge, Catcune (Overbridge 30)	Demolition and replacement of bridge.
Midlothian	22	Catcune Farm Accommodation Bridge, Catcune (Underbridge 31)	Re-pointing and repairs.Waterproofing works to bridge arch.Removal and replacement of wrought iron handrail.
Midlothian	24	Castle Road Bridge, Borthwick Mains (Overbridge 32)	Repairs and re-pointing.
Midlothian	24	Borthwick Mains Bridge, Borthwick (Underbridge 33)	Repairs to masonry.Removal and replacement of wrought iron handrail.
Midlothian	25	Halflaw Kiln Bridge, Birky Side (Overbridge 34)	Demolition and replacement of bridge superstructure.Repairs and re-pointing to bridge.
Midlothian	26	Halflaw Bow's, Maggie Bowies Glen (Overbridge 35)	Demolition and replacement of bridge deck and parapets.Repairs to masonry.

2

Section 53 of the Listed Buildings Act (acts causing or likely to result in damage to listed buildings) shall not apply to anything done in exercise of the powers conferred by Part 1 of this Act with respect to works.

3

In this schedule—

• “the Listed Buildings Act” means the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (c. 9); and

• “building” and “listed building” have the same meanings as in the Listed Buildings Act.

SCHEDULE 10

1

Before commencing construction of the authorised works located in the area of a local planning authority the authorised undertaker shall secure that there is submitted to that local planning authority for its written approval—

• (a) the code of construction practice; and

• (b) one or more draft local construction codes relating to so much of the authorised works as is situated in the area of the local planning authority concerned.

2

The local planning authority shall send a copy of every code submitted pursuant to paragraph 1, and any amendment or replacement proposed by the authorised undertaker pursuant to paragraph 3, to SNH and SEPA and shall take account of any representations made to the local planning authority by either of those bodies.

3

The authorised undertaker may with the approval of the local planning authority (and shall if so required by the local planning authority) amend or replace the code of construction practice or any local construction code.

4

The provisions of the code of construction practice and any local construction code, as from time to time amended or replaced shall have effect as conditions to which section 48 applies.

SCHEDULE 11

Part 1 — Works requiring special measures

1

This Part of this schedule applies to the sites specified in the table.

2

The authorised undertaker shall not undertake any works for the protection of river banks at sites ID8, ID9, ID11, ID22, ID24, ID27, ID28, ID29, or ID37.

3

The location of any work for the protection of river banks to be undertaken by the authorised undertaker at sites ID4, ID18, ID35, ID36, ID38, ID41, ID42 and ID43 shall be approved by SNH.

4

Before commencing the construction of any works, or carrying out any operations, at any of the sites to which this schedule applies, the authorised undertaker shall consult SNH regarding—

• (a) detailed engineering design;

• (b) construction methods;

• (c) pollution control;

• (d) timing of works and operations;

• (e) conservation of specific habitats or of habitats of specific species,

and shall implement such detailed mitigation measures regarding such matters as SNH may require.

5

The authorised undertaker shall secure that the code of construction practice is amended from time to time as appropriate so as to procure the carrying out of measures required pursuant to paragraph 4.

6

Where and to the extent that any measure required by paragraph 4 cannot be dealt with in the code of construction practice (as from time to time amended or replaced), it shall be specified in an agreement to which the local planning authority and the authorised undertaker are party.

7

Any provision amending the code of construction practice pursuant to paragraph 5, and the provisions of any agreement entered into pursuant to paragraph 6, shall have effect as a condition to which section 48 applies.

Part 2 — Works not requiring special measures

SCHEDULE 12

Authority to construct works

Authority to acquire land

Purchase of specific new rights over land

Power to fell, etc. trees or shrubs

Incorporation of enactments

Short title

In the local government areas of Midlothian and Scottish Borders a railway from the Millerhill Marshalling Yard in Midlothian to Tweedbank in Scottish Borders substantially following the route of the former Waverley railway, including stations at Shawfair, Eskbank, Newtongrange, Gorebridge, Stow, Galashiels and Tweedbank, and comprising—

Editorial notes

[^key-b026b80216f254607d78afd2db11d75d]: S. 27(1) modified (1.3.2011) by The Waverley Railway (Scotland) Act 2006 (Extension of Time for Land Acquisition) Order 2011 (S.S.I. 2011/14), arts. 1, 2