This is an application under section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 by Railtrack plc (in administration) for the discharge of various land obligations that burden the subjects belonging to them at the Joint Station in Aberdeen. The discharge is sought principally in order to permit the building, on part of the railway land, of retail shops and associated car parks as part of a re-development of the Joint Station and neighbouring land as a public transport interchange with additional commercial uses. The benefited proprietors are Aberdeen Harbour Board ('the Board') who object to the application.
Separate applications are made by the Graham Group plc and Union Square Developments Limited in respect of subjects at Palmerston Road, Aberdeen as plots of land adjacent to the subjects owned by Railtrack at the Joint Station.
At the hearing the Applicants were represented by Mr Jonathon Mitchell QC who led in evidence David Law Spaven, MA MSc, a rail transportation consultant and a partner of the Spaven McCrossan Partnership, rail transportation and economic development consultants. Affidavits were lodged giving the evidence of Mr Peter John Cockhead, director of planning and strategic development Aberdeen City Council ('the Council'); Mr Peter Anthony Green, major project surveyor for English, Welsh and Scottish Railways ('EWS'); and, Adrian Paul Smith MRTPI, a planning director with consultant town planners, Robert Turley Associates.
Aberdeen Harbour Board were represented by Sir Crispin Agnew QC who led in evidence Robert Barclay Braithwaite BSc CEng FICE general manager of the Board; Lord Berkeley, chairman of the Rail Freight Group; and Dr Alan Gordon Woodburn PhD MSc BSc MCIT, principal transport planner with Colin Buchanan and Partners; Philip John Clarke BA DipEP MRTPI, a partner of the Barten Willmore Partnership, planning consultants; and, Kevin William Martin, BEng CEng MICE a consultant transport engineer and a director of Oscar Faber consulting engineers. Affidavits were lodged giving the evidence of Amanda Harvie, Chief Executive of Aberdeen and Grampian Chamber of Commerce, and, Ian Armstrong, northeast general manager for the Scottish Council for Development and Industry.
The land burdened by the land obligations consists of various contiguous areas of ground lying to the west of Market Street and north of Palmerston Road in the city centre of Aberdeen. The subjects include the rail freight yard known as the Guild Street Yard.
The following are the deeds creating the relevant obligations affecting the yard:-
Disposition by the Aberdeen Harbour Commissioners in favour of The Deeside Railway Company recorded in the Register of Sasines for the Burgh of Aberdeen on 18 September 1860.
Conveyance by the Aberdeen Harbour Commissioners in favour of The Caledonian Railway Company recorded in the said Burgh Register on 14 December 1887.
Disposition by the Aberdeen Harbour Commissioners in favour of The Great North of Scotland Railway Company recorded in the said Burgh Register on 3 June 1889.
Feu Disposition by the Aberdeen Harbour Commissioners in favour of The Trustees for the firm of Adam and Company recorded in the said Burgh Register on 25 September 1895.
Feu Disposition by the Aberdeen Harbour Commissioners in favour of William Malcolm Brechin recorded in the said Burgh Register on 29 May 1895.
Feu Disposition by the Aberdeen Harbour Commissioners in favour of The Caledonian Railway Company recorded in the said Burgh Register on 20 September 1897. [Folio 42]
Feu Disposition by the Aberdeen Harbour Commissioners in favour of The Caledonian Railway Company recorded in the said Burgh Register on 20 September 1897. [Folio 153]
Deed of Declaration by the Aberdeen Harbour Commissioners in favour of The Great North of Scotland Railway recorded in the said Burgh Register on 27 July 1898.
The proprietors benefited by all the obligations in the above deeds were the Aberdeen Harbour Commissioners of whom the Board are the successors.
The 1889 Disposition above is in respect of land fronting on to Market Street at the Guild Street Yard. The obligations required either an enclosing wall not exceeding 10 feet in height or a building with a wall of granite to be built on the Market Street frontage, except for any accesses from that street. Various uses of the land were prohibited.
The 1887 Conveyance was of the greater part of the present Guild Street Yard, referred to later as areas 2E and 2F. In respect of a substantial part of the Yard, extending to 2.125 hectares, an obligation requires that land to be used solely for railway purposes unless the Commissioners gave consent for another use. That part of the land conveyed has a frontage to Market Street and was also subject to the same conditions as found in the 1889 Disposition, and outlined above, in respect of a wall or building being constructed on the frontage. The smaller part of land included in this conveyance and extending to 0.232 hectares is subject to the obligation requiring the use of the land to be solely for railway purposes, unless consent is given.
The 1895 Feu Disposition is in respect of a relatively small area of land at the front of the Yard. There are obligations requiring that a masonry building should be constructed along the Market Street frontage with walls not less than 35 feet in height. Plans of the building, and any subsequent alterations, were to be approved by the Commissioners. If necessary the building was to be rebuilt, and various uses were prohibited.
The first 1897 Feu Disposition referred to above is also in respect of a relatively small part of the Yard, with a frontage to Market Street. The same burdens as those outlined above for the 1895 Feu Disposition were imposed with the exception that the requirement for a building was suspended so long as the subjects were used for railway purposes. If the land was so used a wall had to be constructed along the Market Street frontage, although gates and accesses were permitted. Should the railway use cease then the requirement to erect a building revived.
The second 1897 Feu Disposition referred to above is also in respect of a relatively small area of the Yard with a frontage to Market Street. The relevant obligations contained therein are in the same terms as those outlined in respect of the first 1897 Feu Disposition above.
The 1895 Feu Disposition and the Deed of Declaration of 1898 again refer to a relatively small area of the Yard fronting on to Market Street. The 1895 Feu Disposition imposed the same burdens as apply in the previous 1895 Disposition, requiring the construction of a building after plans had been approved by the Commissioners, and requiring its replacement if destroyed or decayed. Various uses were prohibited. However, the building requirement was suspended by the 1898 Deed of Declaration to the effect that as long as the subjects were used for railway purposes a wall with accesses or gates would be constructed. If railway use ceased the building requirements would revive.
The 1860 Disposition is also in respect of a relatively small area of the yard located on the frontage with Market Street. The burdens include a requirement that houses or warehouses are to be built to a certain height on the line of the frontage. The plans of the buildings were to be approved by the Commissioners. This requirement was subject to a proviso that in the event of the land being occupied, '… for an access from the said Deeside or other Railway to the said Quay …', the conditions in respect of building should be suspended, and further, ' … in the event of the land being used for an access from the Railway to the said Quay the Deeside Railway Company … shall be bound to erect and maintain a substantial stone enclosing wall in the true line of the said Quay …'.
The subjects are part of a larger area of land to the south and east of the passenger railway station. All of this land has been in use for railway purposes. The general layout of the station and its surroundings can be found on any map of the central area of Aberdeen. Sufficient to say that the development site referred to below is bounded on the north by Guild Street and on the east by Market Street, both dual carriageways. A bus terminus to the east of the passenger station, and within this area, has access from Guild Street. Two modern office blocks, St Magnus House and Victoria Tower, at the corner of Guild Street and Market Street, are excluded from the area. On the eastern side of Market Street lies Aberdeen Harbour. To the south is Palmerston Road and to the west the lines into the passenger station. To the west of the railway lines and the passenger station is an office block and a car park facing on to College Street.
The subjects owned by the Graham Group and Union Square Developments Ltd are existing buildings on Palmerston Road. Immediately to the north of them is the area of land owned by Railtrack. This area is the Guild Street Yard. It has railway sidings that curve into it from the main railway line running from Aberdeen to the south. It includes a strip of land fronting on to Market Street. The strip extends further north along the west side of Market Street than the area of railway yard behind. This area is used as a freight terminal for the transhipment of cargo to and from railway wagons. It is tenanted by English Welsh and Scottish Railways, a rail freight operator.
The goods yard currently occupies a site of about 3.743 hectares. The Morrison 'Option A' proposal, to which we refer below, was to reserve a site of 2.711 hectares as a freight yard. However, the area which is specifically burdened by reference to use for railway purposes extends only to 2.125 hectares .
Until 1996 one railway track extended across Market Street to the harbour, but that connection was removed and the dual carriageway has been resurfaced. Although the respondents' pleadings seemed to envisage restoration of this link as an important feature of the harbour-rail connection, it was not founded on as a realisitic option in the proceedings before us. There are railway lines within the harbour area but these are unused.
The main railway line to the north of Aberdeen is single track. There are various arrangements of double tracks and sidings to allow trains to pass each other.
Aberdeen harbour can be described as four 'fingers' running east from Market Street, one on the south side of the River Dee. Between the two central fingers, or peninsulae, the more northerly of which is known as the central peninsula, is the Albert Basin. The Upper, Victoria and Telford Docks separate the northern finger and the central peninsula. Running north from Victoria Dock is the Waterloo Yard. This lies to the north of Waterloo Quay which, as it runs towards Market Street, becomes Regent Quay. This is a privately owned road that carries public traffic. The level of traffic flow along Waterloo Quay and Regent Quay is very much lighter than that on Market Street. Waterloo Yard is a former railway goods yard, with a single track link to the main railway line at Kittybrewster in the north of Aberdeen.
Before dealing with the nature of the development proposed and the planning processes associated with it, it is convenient to set out some detail of the recent history relative to use of the subjects. As a preliminary it is as well to have in mind a distinction between two main methods of using rail for freight, namely methods where some form of container unit is itself capable of being moved from lorry to rail wagon - 'intermodal' arrangements - and 'general goods' methods where goods are loaded into railway wagons. There are differing intermodal rail methods of transferring goods including 'containers', 'piggy back', and 'swapbody'. These methods allow for the transfer of goods to be done relatively quickly and efficiently. Containers are large metal boxes carried on flat bed railway wagons. 'Piggy back' is a term which refers to lorry trailers, such as those used in roll-on roll-off ferry services, being placed on to a specially designed wagon. The 'swapbody' method is a variation of the piggyback method and tends to be used for 2.6 metre wide refrigerated trailers. General cargo can be transported in enclosed wagons. Rail freight traffic comprises trains made up of the same type or limited types of wagon so that 'containerised traffic' will be made up of trains of containers on their specific wagons. 'Break-bulk' traffic is of a different kind, being the reduction of bulk general cargo into appropriate lots for onward distribution. The type of wagon will depend on the type of material. Bulk timber imports will be shipped in one type of wagon, while aviation fuel, or chemicals, will be shipped in another type of wagon. Specialised products such as finished paper will have its dedicated type of wagon and each type of traffic will usually have dedicated sidings and equipment. For present purposes it is sufficient to notice the broad distinction between 'container' and 'general" traffic.
Although Railtrack or an associated company are heritable proprietors of the yard and the rail infrastructure nationally, operation of services on that infrastructure is divided amongst various operators on a nationwide basis. Over recent years rail freight has been in decline nationally. The Guild Street Yard had formerly been operated by Freightliner who progressively ran down their activities from a peak of 250,000 tonnes per annum ('tpa'). Container traffic accounted for 25% of that figure. That volume was handled on a part of the yard extending to about 0.4 hectares.
EWS is now the sole rail freight operator in the north east. They operate primarily as a bulk haulier of raw materials for the paper, construction and off-shore oil industries. EWS move about 85,000 tpa to and from Aberdeen with some 60,000 tpa being cement taken to and from the private sidings of the Blue Circle Cement company at Craiginches. About 25,000 tpa is handled at the Guild Street Yard, of which about 10,000 tpa is coal in containers.
Although not reflected to any extent in use of the rail link, there has been a general upward trend in the volume of freight using the harbour over the last 20 years. From 1999 to 2000 there was a 30% growth in container traffic. There has been a steady increase in container movements nationally. There has been a growth in container and general cargo services leading to an increase from 10 scheduled services per week in 1991 to 27 per week in 2001. These services cover the Northern Isles and European Ports from Norway to Belgium.
The total cargo passing through Aberdeen harbour at present is about 4,000,000 tpa, 'Unitised traffic' accounts for about 12% of that total, or about 480,000 tpa. Roughly 320,000 tpa is roll-on/roll-off traffic and roughly 160,000 tpa is containerised traffic. Current sea-rail movements between Aberdeen harbour and the Guild Street Yard total 17,000 tpa, which represents less than 0.5% of the total harbour throughput. That is made up of around 2,000 tpa of domestic coal, which is shipped through the port from Yorkshire to Orkney. Around 10,000 tpa of drilling oil is moved from Harwich to the harbour (large batches are moved by sea - small batches by road). Around 5,000 tpa of mud oil waste product is moved from Peterhead and Aberdeen harbours to Guild Street and then south by train. These are handled in small shipments of a few wagons at a time.
The Guild Street Yard is straight across the road from the harbour but there is now no direct rail connection. Goods taken between the harbour and the Yard are moved by lorries. Lorries can not go directly back from the Yard to the harbour. Because of a central reservation in Market Street, they have to take a circuitous route including Virginia Street and a one-way system to the north of the harbour. Market Street is highly congested. The existing Yard is not up to the standard of modern rail freight facilities. The hardstanding is a mixture of materials, whereas a modern terminal would have concrete hard standing of adequate load bearing capacity. There are 1090 metres of sidings, but these are curved whereas modern sidings would be straight. There is a 17-year-old gantry crane that is near the end of its working life.
Much of the evidence related to alternative facilities proposed at Craiginches, Raiths Farm and Waterloo Quay. Craiginches is a former goods yard which straddled the main line running south from Aberdeen. It is about two miles by road from the central peninsula of the harbour and the current Guild Street Yard. To the north of the main line are private sidings operated by Blue Circle Cement. Those sidings have a poor road access. The land to the south of the main line, which has at some time been taken out of railway use and now forms part of the East Tullos Industrial Estate, is to be recovered for use as a rail freight terminal. The available site area is 2.125 hectares and it has the capacity to provide 570 metres of purpose designed sidings. It is intended to provide the facility there with one mobile road-rail crane. The capacity for handling freight at this proposed facility was disputed. At best it would be able to handle about 100,000 tpa. The access will be via Greenwell Road through the industrial estate. Roads between the harbour and Craiginches are frequently full of traffic but this tends to flow freely compared with traffic at the north end of Market Street and in the city centre.
Raiths is the name given to a proposed new terminal at Raiths Farm near Dyce, some eight miles north of the existing terminal. The site for the freight terminal extends to 8.256 hectares. As well as allowing for 906 metres of straight purpose-designed sidings it will also be provided with a modern mobile crane and will have space for extensive warehousing. It was not disputed that this facility could be expected to deal with a substantial volume of traffic in the range of 200,000 to 300,000 tpa. Planning permission was granted for the development of this facility in 1998. Both facilities will have concrete hardstanding appropriate to the use and high levels of security can more easily be made available there than at the Guild Street Yard.
While the Board do not dispute that the modern facilities at these locations are in themselves desirable they point out that the capital necessary to realise these facilities could be spent at the Guild Street Yard to bring it up to the same standard, while continuing to make available 1090 metres of existing sidings which could, if so desired, be replaced by straight purpose designed sidings.
Waterloo Yard is situated immediately to the north of the harbour and is easily accessible across a lightly trafficked road known as Waterloo Quay. It is owned by the Board and extends to 1.902 hectares. There are no facilities in place there for handling rail freight but there is an existing railway line which services the adjacent land used by Omya UK Limited for materials used by the paper industry. There will be no difficulty about connecting to the existing railway line to Kittybrewster. Mr Spaven considered that there was room at Waterloo Yard for up to 3 rail sidings together with storage and parking areas. He estimated that it could handle 200,000 tpa of container sea-to-rail traffic. As will be seen, the Board questioned the capacity of this site and, in particular, contended that use for container traffic would preclude use for break bulk traffic and its associated infrastructure. They had intended to develop the yard for that purpose to handle products intended for the paper making industry.
'The Grampian Rail Freight Study', was undertaken in 1995 by the Spaven McCrossan Partnership for Transrail, the predecessor of EWS. The study identified some 250,000 tonnes of new rail freight potential in the Aberdeen area of which 100,000 tonnes was considered to be of strong potential, mainly from the paper industry. That has an output of some 600,000 tpa of finished product. Of the 250,000 tonnes the study anticipated 70,000 tonnes being handled at Craiginches and Waterloo Yard. The balance of 180,000 tonnes could be handled at Raiths Farm, to the north of Aberdeen, and Craiginches, to the south. The study concluded that this level of traffic could not be handled at the Guild Street Yard either quantitatively or qualitatively.
Apart from harbour traffic potential customers were not likely to be based in the city centre. The paper industry is based to the north and west of the city. Another identified use was for transport of aviation fuel from Grangemouth to Dyce. Over 50,000 tpa of this are currently moved by road.
Spaven McCrossan Partnership was also commissioned in 1996, by the regional local authorities, to undertake a study of 'Rail Freight Opportunities in the East and North of Scotland', with particular reference to 'loading gauge clearance' to enable trailer containers and piggy back road trailers to be moved by rail. The term "loading gauge" refers to the overall height and width of the wagon as loaded. Certain standards of clearance are required relative to fixed structures such as bridges and tunnels.
Subsequently the Spaven McCrossan Partnership was instructed by Railtrack and Stannifer Developments Limited, a partnership contemplating development of the Joint Station, to undertake two further studies entitled 'Aberdeen Harbour Rail Access Study' and 'Aberdeen Guild Street Freight Depot Relocation'. These reports analysed the case for relocation of rail freight facilities from Guild Street Yard to Craiginches and Raiths Farm, including an evaluation of the implications for sea-to-rail traffic.
The rail route from the Coatbridge Freightliner Terminal to the Aberdeen Freightliner terminal, located at the Guild Street Yard was cleared for movement of 8'6' high containers in the early 1980s. The Freightliner Terminal closed in 1987. 8'6' is the maximum container height that can be conveyed on this line on standard 1m high container wagons. Intermodal traffic such as 2.6 m wide swapbodies used for refrigerated traffic, 9'6' high deep sea containers, and, standard lorry trailers for piggy back mode on rail wagons cannot at present use the line between Aberdeen and the south.
It is clear that part of the background to the present applications therefore is one where an alternative strategy for rail freight provision was being developed by Railtrack and EWS which identified Craiginches and Raiths as preferred alternatives to the Guild Street Yard. New sidings and other facilities will require to be provided there if the Guild Street Yard closes. Planning permission was granted for Raiths Farm in 1998. It is assumed that planning permission is not required for the proposed development at Craiginches, presumably on the basis that the land was formerly operational railway land although it is presently in other use.
Quite separately from these changes in planned provision for rail freight there had been long-standing awareness of the need to improve the arrangements for public transport users using the bus and rail stations at Guild Street by improving the stations themselves, facilitating interchange between them and the neighbouring parts of the city centre and by incorporating appropriate leisure and retail uses.
Although we heard no direct evidence of this, we recognise that in addition to these 'public' implications of the development, a principal reason for any commercial development is the perceived opportunity of a sound return on the investment. There was at least a suggestion that Railtrack had allowed a "commercial" approach to take precedence over a proper assessment of the needs of rail users. We have that in mind in our consideration of motive below.
On 7 December 1998 an application for detailed planning permission and listed building consent was submitted to Aberdeen City Council on behalf of Stannifer Developments and Railtrack. The application was supported on 22 July 1999 by a detailed planning statement, a traffic impact assessment and a retail statement.
The site of the planning application extended to some 10.6 hectares with a development site of 7.6 hectares. It can be described as divided into five distinct areas. A group of Category A listed buildings comprising the Joint Railway Station buildings and car parks; the Category A listed former Goods Shed; the Bus Station including external waiting areas and bus stances; the railway freight yard used by EWS; and 7 light industrial units fronting Palmerston Road. The railway station buildings, goods shed and bus station presently occupy the northern part of the site. The burdened subjects lie in the southern part of the site. The development proposals are for a mixed retail and leisure development incorporating a shopping mall, retail warehousing, multiplex cinema, leisure uses, restaurants and public houses, bus and coach station, railway station improvements and car parking.
The Grampian Regional Structure Plan showed retention of a rail freight facility at the Guild Street Yard. It also promoted the development of an integrated public transportation interchange at the Joint Station linked to the commercial centre of Aberdeen. In the Aberdeen City District Wide Local Plan (1991), Policy C3 covered the northern part of the site. This policy stated that major change was expected at the Joint Station and that it might be appropriate to introduce new uses into the area. It noted that a development brief was to be prepared for this northern part of the site. The main principles to be observed in the development brief were: the retention of the area as a major interchange for rail and bus transport; the operation of bus and rail services should not be prejudiced; new uses appropriate to a location next to a major transport interchange and the city centre, including office, retail, leisure and hotel uses should be included. The more specific objectives of the development brief, dating from 1989, were the creation of a larger modern bus station; increased car parking, improved internal traffic circulation system, better provision of taxi ranks, comparable parcel handling facilities, and the observation that 'the railway line to the harbour area may require to be maintained'. (As we have seen, this line was in fact removed in 1996).
Policy C2 of the Local Plan covered the southern half of the site, including the subjects. This stated a presumption in favour of uses related to railway operation but acknowledged that other uses might be acceptable if the land was declared surplus to requirements for railway use. Part of the site fronting on to Palmerston Road lay within an area designated by Policy I.1. This stated that there would be a presumption in favour of retaining industry and business uses there. The Local Plan also referred to the design brief for a new transport interchange with ancillary uses, and it set out policies for retail warehouse proposals on land not allocated in the Plan.
At their meeting on 30 September 1999, the Council's planning committee considered the application and determined that it would be appropriate to hold a development plan departure hearing. A hearing was held on 2 November 1999 and was attended by representatives of the applicants and other interested parties including objectors among whom was the Board. At that hearing the director of planning and strategic development reported that the proposals for the development of the whole site were potentially in conflict with parts of the development plan. The total retail floorspace proposed was 31,300 square metres and he did not regard the retail element as ancillary to the passenger transport interchange and leisure uses. When the planning committee came to consider the application in March 2000 the director had obtained more information and had negotiated some changes to the original proposals. The retail floorspace had reduced to between 26,300 square metres and 28,800 square metres, which brought down the percentage of the site area given over to retailing to 31%. He then reported that there was no conflict between the proposals and the development plan policies relating to the joint station to the north of the site. Regarding the rail freight yard on the southern part of the site he noted that the rail freight operators supported the closure of the yard and that planning permission had been granted for a new freight yard at Raiths Farm. The director's conclusions regarding the use of the Guild Street Yard derived from the findings in the 'Grampian Rail Freight Study' and the 'Rail Freight Opportunities in the East and North of Scotland'. He had also by that time seen the two reports prepared by the Spaven and McCrossan Partnership for the developers which had found the Guild Street Yard to be less economic than alternative new facilities at Raiths Farm and Craiginches, which also had, in combination, greater capacity.
Following these procedures the necessary changes to the Local Plan were approved which would allow the application to proceed. By March 2000 therefore the Finalised Local Plan referred to Raiths Farm as a new railhead and it proposed removing the railway land zoning from the Guild Street Yard. The director of planning in his report also noted that rail to ship access could be maintained at Waterloo Yard. Accordingly, in his opinion, the planning application was in accordance with the relevant policies of the development plan, as well as relevant national policies concerning increases in rail freight and the safeguarding of rail access to ports.
However, in respect of the loss of industrial land at Palmerston Road he took the view that the planning proposal was not in accord with the development plan in respect of Industry and Business Policy I.1 which sought to retain land for industry and business. In considering these and other matters the director concluded that, although the proposals conflicted with development plan policy which sought to retain land for industry, given the scale of the development the loss of industrial land was far outweighed by the proposals being in accordance with all other policies. The director recommended that, based on the statutory development plan and taking into account all other relevant material considerations, the application should be referred to Scottish Ministers with a recommendation for approval. This recommendation was accepted by the Council. The Scottish Ministers did not exercise the right to call in the application for determination. The Council were then free to deal with the application as they saw fit.
The Council granted planning permission and listed building consent for this development, subject to some 26 conditions, on 25 October 2000. The conditions did not relate to the provision of alternative rail freight facilities.
An agreement under section 75 of the Town and Country Planning (Scotland) Act 1997 was entered into between the Council (both as planning authority and as heritable proprietors of part of the development site), with Railtrack, Union Square and the Graham Group in October 2000. This committed the developers to a range of matters relating to road traffic and the local environment. It did not impose any conditions relative to the provision of alternative facilities for rail freight upon the closure of the Guild Street Yard.
By letter dated 16 November 2000 from the Shadow Strategic Rail Authority to Railtrack, it was accepted that, 'in order to facilitate the full regeneration scheme, as submitted, it will be necessary to close and remove the existing Guild Street Freight depot'. It noted that Waterloo Yard was said to be less satisfactory than the Guild Street Yard for harbour operations, but, taking the facts into account and recognising the benefits generated by the proposed redevelopment both for passenger and freight parts of the industry it had decided to withdraw its holding objection to the closure of the Guild Street Yard and the proposed changes to the network. The Authority expressed a desire to work with the Board and others to identify barriers to the use of Waterloo Yard for intermodal harbour business and to remove them, with the aid of Freight Facilities Grant Funding, if appropriate. The letter did not make the closure of the Guild Street Yard conditional upon the implementation of the alternative rail freight strategy and the realisation of the new terminals in particular.
At its meeting on 6 September 2001 the planning committee considered an application for non-material variations to the planning permission originally granted. One of the variations was the deletion of a superstore on the southern part of the site in the retail park, and its substitution with smaller retail units. This was said to be because of the failure of the developers to attract a supermarket operator. The retail element of the scheme was also enlarged from 25060 square metres as originally approved to 30457 square metres, an increase of 21%
It is evident that at each stage in the planning process opportunity for comment was given. The Harbour Board did not comment of the planning application for Raiths Farm beyond saying that as it was independent of the Guild Street Yard they had no interest in it. They did make representations at the development plan departure hearing held on 2 November 1999. The director of planning included a summary of the Board's representations in his report to the planning committee when it considered the Railtrack/Stannifer planning application on 30 March 2000.
The affidavit by Mr Cockhead confirmed the factual planning process through from the pre-existing development plan situation to the present including the history of the granting of planning permission for the proposed development. In his affidavit Mr Smith, who is planning consultant to the developers and who had been involved since 1998, described the making of the application and the procedures which then followed up to the granting of the planning consent with its conditions and later consent for non-material variations to the scheme. No technical or economic information was offered as to why the scheme had been enlarged from the northern part of the site to include the southern part of the site causing the development plan to be altered to allow for its expansion. There was, however, unchallenged indirect evidence that the development of Raiths Farm was to be financed by Railtrack from the proceeds of the sale of the southern part of the site. It was not established that the sale at development value of the freight yard was or was not critical either to the proposed development, or to the development of alternative rail freight facilities, or both.
Although the Harbour Board had objected to the grant of planning permission on a variety of grounds, the dominant issue before us was the perceived need to preserve a rail freight facility close to the harbour for benefit of potential future harbour traffic. The proposed alternatives were much less convenient and it was said that they could not cope with the expected requirements of container transport.
The respondents founded strongly on the evidence that the applicants had asked for proposals from a number of prospective developers before selecting one proposal to take forward. One of the prospective developers, Morrison Developments Limited, had submitted a proposal, Option A, which met the objectives of the development brief using only the north of the site and leaving the southern half of the site free for operation use as a rail freight yard. The respondents contended that this demonstrated that all the planning objectives could be met within a smaller scheme. By this means the transport interchange could have been achieved while at the same time safeguarding the rail freight facility.
It is clear that, all else being equal, any move of the freight railhead from its present location would have disadvantageous consequences for harbour traffic. Increased distance can be taken to mean increased time and cost. It is not disputed that Raiths is too distant and wrongly located for harbour traffic, most of which goes south. The improvements at Craiginches, 2 miles to the south, will not be able to serve the harbour as well as a direct sea/rail freight link. The yard there will be much smaller than the existing Guild Street Yard.
Use of Waterloo Yard as a substitute for the Guild Street Yard would force the Board to change their plans for their beneficial use of the Waterloo Yard. It would reduce the scope for other rail cargo activities to take place there. Compared with the proposed direct link to the Guild Street Yard, Waterloo would involve unnecessary road transport over streets which are already heavily congested. The distance on each leg would be of the order of half a mile. The time taken would, of course, depend upon traffic conditions and, in particular, the flow of traffic through the light controlled junction at Market Street and Trinity Quay.
There are other adverse effects. The proposed use of the subjects as part of a major shopping development will increase traffic congestion in the city centre. This will have an adverse impact on the use of the harbour and for traffic coming to and from the harbour. (It should, however, be noted that there may not be a direct relationship between the sizes of the two potential developments and the vehicular traffic generated by them. It is clear that even a smaller development - such as Option A - would be likely to generate additional traffic in the vicinity of the harbour.) However, as discussed further below, not all of these consequences have a direct impact on the respondents themselves.
There is no doubt that the respondents genuinely consider the loss of the Guild Street railhead to be of importance to the interests of the harbour. The Board point to a history of action taken by them to protect the link with the Guild Street Yard. Becoming aware of proposals for redevelopment of the Joint Station area in 1987 they had sought and obtained assurances from British Rail that Guild Street would be retained, a fact that had been reflected in the local and regional development plans until the current proposed development was brought forward.
Mr Braithwaite emphasised the importance to the Board of retaining the freight terminal at the Guild Street Yard which is in close proximity to the central peninsula where current intermodal traffic is located and where increasing future flows of such traffic are expected. In view of the growth already established in relation to new services such as the roll on/roll off freight services to Amsterdam, and the container service linking with deep-sea lines operating out of Antwerp and Rotterdam, the Board, in 1998, recognised the potential for development of sea-to-rail traffic though the existing rail freight facilities at the Guild Street Yard. This was referred to in their five year strategic plan.
The Board contend that the proposed use is not a reasonable use standing the national policy for harbours and for direct sea/rail freight links. Adverse effects on the development and competitiveness of the harbour may have economic implications for the City of Aberdeen and the North East. The additional traffic will also exacerbate conditions in Market Street, which, because of the poor air quality standard existing there at present, has been declared an Air Quality Management Area.
The Board had general support from a variety of sources. Amanda Harvie gave evidence by affidavit. She is chief executive of Aberdeen and Grampian Chamber of Commerce. Her evidence stressed the views of the Chamber of Commerce in relation to the strategic economic importance to the Aberdeen and Grampian Region of retaining and developing the rail to sea link for freight traffic at Guild Street. She made it clear that the Chamber of Commerce had repeatedly drawn attention to the importance of the matter in their responses to the local authority and to the Scottish Executive. There was a concern that the option of retaining a streamlined facility at Guild Street together with proposed improvements at Craiginches and a new terminal at Raiths had not been fairly evaluated and that the proposed removal of the link at Guild Street was in the face of established policies. These general policy considerations are, of course, entitled to weight in coming from a source which can be recognised to be representative of informed business interests in the community. However we have to recognise that these are all matters which the planning authority has been able to consider. As far as direct detail is concerned, the affidavit made reference to the report by Colin Buchanan and Partners in discussing the potential for future growth in rail sea transfer. In other words it provided no detailed independent evidence assessing the potential for such growth.
An affidavit from Ian Armstrong, the North East Scotland Manager with the Scottish Council for Development and Industry also stressed the importance from a policy point of view of maintaining the link. Closure of Guild Street would be short-sighted and detrimental to the longer term economic prosperity of the area. There was reference to the traffic benefit of the removal of a significant number of lorry journeys from congested roads around the harbour area. Here again, the affidavit did not provide any direct evidence bearing on the likely growth in demand for rail freight from harbour traffic.
Lord Berkeley, chairman of the Freight Rail Group also stressed the value of retaining the Guild Street facility as well as the proposed new railheads at Craiginches and Raiths. He gave powerful evidence of the greatly improved prospects for railfreight following changes in Government policies. He was strongly of the view that the decision to approve closure of Guild Street was a wrong decision.
Parties were in agreement that there was a legitimate expectation of an increase in rail freight traffic in the region. Traffic congestion, increasing fuel taxation and the cessation of new road building were already having an impact on road haulage operations to the benefit of rail freight, particularly over longer distances.
We were referred to government policy in two papers: 'A new Deal for Transport: Better for Everyone' and 'Transport 2010: The Ten Year Plan', both published by the Department of Transport the Environment and Regions. The Department seeks, inter alia, to increase rail freight by 80% by 2010. There are grants available for rail freight projects and rail user charges for freight have been halved recently enabling rail freight to be more competitive. We also heard evidence of proposed restrictions on lorry drivers hours due to come into effect in 2003 which will make road freight more expensive.
The suitability of cargo such as paper, aviation fuel, whisky and manufactured foodstuffs for rail freight was not disputed, as was the appropriateness of the location of the proposed Raiths Farm facility to service that trade from north of Aberdeen. Both Mr Woodburn and Mr Spaven agreed that there were realistic prospects of achieving at least the target of 80% growth. Mr Spaven attributed this specifically to the very long hauls to the majority of key domestic and export markets for the main manufacturers and processors in the north east. This did not involve the harbour. He coupled this with the greater suitability and accessibility of the proposed yards at Craiginches and Raiths compared with Guild Street.
We are satisfied that there are real prospects of significant growth in use of railfreight and are satisfied that there are public benefits from use of rail rather than road for freight. We also accept that the provision of a new rail freight facility at Raiths together with a new facility at Craiginches, and the possibility of development of Waterloo Yard, would provide a good solution for such new and increased rail freight traffic in Aberdeen and its region as can at present be realistically foreseen. These locations are to be preferred to a single location in the centre of the city for the reason that they have better road access and avoid the congestion found in the city centre. Raiths will be better located for the expected users of that facility being the paper industry, the whisky and food processing industries, and aviation fuel supplied to the adjacent airport at Dyce. The previous paper industry trade from Guild Street had been lost because of its congested location. As a large site Raiths would be able to provide for warehouse and distribution facilities.
Craiginches is to be situated on an industrial estate south of the city centre. It will be accessible for goods emanating from the south and west of the city. It will be able to cope with existing harbour trade and with a significant level of growth in the existing general goods trade. It is not clear that it will be able to handle much, if any, container traffic.
The position of the Waterloo Yard is more complex. Mr Spaven saw it as a facility which would be available to accommodate the possible "high growth" scenario envisaged by the Board. He himself thought that scenario unlikely. The Board had plans to develop it for break-bulk traffic. It could be used for both general and container traffic although joint use would impose limitations on each. We return to deal in some more detail with the issues arising from use of this Yard in the 'Discussion' stage below.
Although there were various minor points in issue between the parties as well as differences in emphasis, the substantive issue of fact was the question of the potential for sea-to-rail traffic to be generated at Aberdeen in the future. This also involved the closely related question of where such traffic could be handled.
We heard explained that the position of deep-water berths and the requirements of the harbour's various users had caused the distribution of activities within the harbour and their development to become site specific, although not unalterable over time. To a considerable extent the harbour is dependent on traffic related to oil and gas activity in UK waters. The Board's policy since the 1980s had been one of diversification. This had included investment in facilities to attract a greater proportion of general cargo business. For example, Regent Quay had been reconstructed to attract forest products business. Transit sheds had been built there, and on the central peninsula, for the storage of wood pulp. Telford Dock had been developed in the 1990s for large oil industry diver support vessels. Developments in the central peninsula include the investment in deep water berthing and associated infrastructure to accommodate roll on/roll off freight services to Scandinavia and the Continent. Further investment to provide facilities for container handling was included in the Board's strategic plan for the next five years.
Mr Braithwaite envisaged a direct road access across Market Street for this expected increase in container traffic. The existing signal controlled junction would allow the transfer of goods from the central peninsula directly into the Guild Street Yard using specialised units, "tugmasters". Tugmasters would be licensed for normal road use but because of the limited distances to be driven on public roads would be able to use 'red diesel'. This would be much cheaper because it would not bear normal fuel tax. This would be a significant saving.
Mr Braithwaite placed great stress on the constant need for the harbour to keep competitive by maximising all potential for development and chasing business of every sort. The advantage of an immediate railhead was seen as an important element in this.
The respondents supported their case for expected increases in sea-rail traffic flows by reference to a Colin Buchanan and Partners study for the North East Scotland Rail Freight Development Group, produced in August 2001, and carried out by Mr Woodburn. In that study he had identified potential for transferring 1.1 million tpa of freight away from road to rail in the short term. About 15%, or some 165,000 tpa, was estimated by him to be harbour related traffic. In a more recent study carried out by him for the Board to identify sea-rail transfer potential in Aberdeen, and to which he spoke in evidence, it was established that the volume of freight passing through the harbour had risen by 75% between 1980 and 2000. It also noted that the central peninsula had increased its share of the total harbour traffic from 17% in 1987 to 20% in 2000. That increase was due to an increase in container and roll on/roll off traffic. The central peninsula was the fastest growing section of the harbour.
The study attempted to analyse freight movement in and out of the Grampian Region and the existing and potential sea traffic into and out of the harbour. It made predictions of future sea-to-rail traffic in the context of that analysis, of trends in the containerisation of freighted goods and of changes in Government policy regarding road and rail transport and ports policy.
The conclusion drawn from this analysis was that the harbour was well placed to benefit from further growth in trade between the United Kingdom and Scandinavia, the Baltic and northern Russia. It also had the potential to become a feeder port for a proposed Scapa Flow terminal
We heard evidence of proposals for a container 'Hub' port at Scapa Flow. The proposals were linked to a sister Hub port at Halifax, Nova Scotia. However, the proposal reflects an international trend towards larger ships plying between Hub ports where cargoes are broken down for distribution by smaller ships along 'spokes' to a number of feeder ports.
In the written material studying the potential for this Scapa Flow development, suggested feeder ports were Felixstowe or Rotterdam. Use of smaller ports might also be a possibility. Any feeder port would need appropriate terminal provision for container traffic. By the time that any such Hub system was operating, the international standard for containers would be likely to have been adopted at 9' 6". Handling and transport facilities for these would be required. There would require to be adequate port space for associated container movements. Routing decisions by customers would include assessment of terminal capacity, the frequency of services, the reliability of services and, of course, cost. The location of the main feeder ports in the UK would depend upon identification of the main areas of the source or destination of goods.
Mr Woodburn assumed that vessels with a capacity of 500 TEUs might arrive in Aberdeen once a week. This would represent a total flow of some 15 to 20,000 TEUs per annum in each direction. The term 'TEU' means "twenty foot equivalent unit" and is used to provide a measurement by reference to a standard twenty foot container. Forty foot containers are common.
As a result of this more detailed analysis Mr Woodburn identified a potential for 500,000 tpa of unitised traffic passing through Aberdeen harbour. He referred to the earlier Study but said that his more detailed analysis convinced him that there were good reasons to expect this potential to grow in the next 5 to 10 years. These included the facts that the Board had a growth strategy for the harbour; that the annual growth in the container market was 4-5%; that Aberdeen enjoyed a strategic geographical position for the growing trade between Britain and Scandinavia and the Baltic region; and, the possibility of the harbour acting as a feeder port for the Scapa Flow Hub. Although he had identified this potential for 500,000 tpa of harbour related rail freight, Mr Woodburn said that he had attempted to be realistic and had kept his estimate down to within the range of 100,000 to 200,000 tpa by rail. There was no method in this. He simply wished to be realistic. He considered that by combining harbour flows with domestic traffic there would be a volume sufficient to justify a daily rail container service to and from Aberdeen. This would be a viable operation.
There can be no real doubt that the best location for sea-to-rail container traffic is the existing main rail freight terminal at Guild Street. We accept Mr Woodburn's evidence that there would be adequate space and sidings of sufficient length within the burdened land. The existing infrastructure would have to be improved upon. It could cope with expanding trade. It offered direct access to and from the main railway line to the south of Aberdeen, without the need for reversal or passage through the congested station area. Goods could be moved straight across Market Street at a traffic light controlled junction with minimal impact on other road users. Because the movement would effectively be internal to the harbour area it would be the most economic option. The more difficult question is whether the alternatives proposed at Craiginches and Waterloo Yard could cope. This depends on the volume anticipated.
Mr Woodburn agreed that Waterloo Yard could cope with the lower end of container trade expected in the short term but not if trade expanded as he expected. We accept that if the yard had to be used for both break bulk and containerised traffic the level of container traffic which could be accommodated would be limited to the lower end of Mr Woodburn's expected figures since each used different, dedicated sidings and associated facilities and there was not room for both types of operation to develop fully there. There would be added time and congestion penalties to which we return below.
Mr Woodburn considered Craiginches to be an unacceptable alternative location for traffic displaced from the Guild Street Yard. It is smaller than the Guild Street Yard. He estimated that it had a capacity to deal with 75,000 tpa which was barely sufficient to justify a container operation. That would require a dedicated operation and in his opinion it was unlikely that containers could be handled at Craiginches. It was even more unlikely that facilities for both break bulk and container traffic could be provided there. In fact he did not consider Craiginches to be a realistic proposition. It had not been mentioned as a possible alternative location at any of the meetings regarding rail freight in the north-east that he had attended. Prior to the hearing, he had not understood it to be part of Railtrack's current plans.
He thought that Raiths was not an acceptable alternative for harbour traffic. This was not disputed by the applicants and we need not elaborate the reasons. It would require a significant road stage through the city in the wrong direction.
For the applicants Mr Spaven gave a different view of the prospects for harbour related rail freight traffic. He considered that Mr Woodburn's figures were not based on examination of evidence which should have been available. There had been no attempt to identify the needs of specific customers. Assessment based on assumed proportions of overall freight was guess work. Although he recognised the aspirations of the Board to increase the catchment area of the harbour, the pattern of regional ports along Britain's eastern seaboard was to serve their regional hinterlands. Ports such as Rosyth, Leith and Grangemouth were much better placed to attract business. There was little scope for growth in harbour traffic of the type currently using rail freight. This traffic was mainly coal, drilling oil and waste mud oil. In relation to the latter he understood the customer to welcome the proposed new facilities at Craiginches as being likely to provide cheaper handling. The debate, of course, did not relate to growth in these types of traffic. The real issue was the projected growth in container traffic from Baltic and Scandanavian sources. This was, in his view, entirely speculative. There was no evidence of the nature and destination of the cargoes being handled and no evidence as to whether the nature and volume would justify long haul rail freight. It was likely that most of the trade was local, serving the regional hinterland. In any event the current gauge clearance was a major restriction. The road trailers involved in roll-on/roll-off traffic could not be presently transferred by rail because of the tunnel and overbridge heights on the line to the south. Load gauge enhancement would first have to be carried out. He agreed that there was a possibility of a Scapa Flow Hub being realised, but doubted whether Aberdeen would be a feeder harbour. There would be strong competition from ports on the Forth and Clyde. In any event the emerging standard container for the world market was 9'6' in height. Such traffic could not be transferred to rail at Aberdeen without gauge enhancement. In short, he did not see any scope for major increases in sea-rail freight arising from the harbour. The other potential users of rail freight offered a greater potential.
Craiginches to the south would be well placed to take traffic from the city, primarily coal and bulk traffic from the oil industry. He considered that it would be close enough to the harbour for all existing and projected traffic to be diverted from Guild Street Yard without cost or time penalty. He pointed out that the road access to Guild Street currently involved a detour via Virginia Street. He was of the opinion that Craiginches was capable of handling in excess of 100,000 tpa, or over four times the volume presently handled at Guild Street Yard. In any event the actual volume of traffic to be generated at the harbour would be relatively small and the type of traffic would always be limited to 8'6' containers because of the limited gauge capacity of the main line south.
Other harbour traffic, including container traffic, could be handled at Waterloo Yard. The Yard was well placed for dealing with the more modest rail freight traffic he expected to be sourced from the harbour. It was in the Board's ownership, it was accessed by a road more lightly trafficked than Market Street. It could provide an intermodal railhead for a substantial amount of traffic. Given the likely environmental benefit of shifting traffic from road to rail there would be a very high level of government grant available to develop such a facility there.
We return below to assessment of the implications of these conflicting opinions. It can be said at this point that although we heard submissions by both parties commenting adversely on the quality of the other's witnesses we have not found anything to turn on this. We were satisfied that all the witnesses were giving evidence honestly and to the best of their ability. In particular it can be said that we did not accept the criticism of Mr Woodburn as partisan and unsatisfactory. We consider that he was careful in the evidence he gave. He acknowledged the limitations of data available to him. Both he and Mr Spaven were essentially dependent on data used by them for evidence of future prospects. Although the precise reasons for the instruction of Mr Spaven were not spoken to by the applicants, we think it clear that his approach was one which considered matters from the viewpoint of rail use. Inevitably, Mr Woodburn's approach tended to view matters from the viewpoint of harbour traffic. Where there was a direct conflict we have tended to prefer that of Mr Spaven because he was able to give reasons for all his views albeit the reasons were not necessarily of great weight in themselves. However, Mr Woodburn made no attempt to hide the approach he had taken and the need for an element of speculation. We accept that commercial judgments on future business prospects may often have to be taken on such evidence.
We found Mr Braithwaite an impressive witness with a wide range of relevant expertise and have no doubt about the soundness of his assessments in their own context.
Both counsel dealt in some detail with evidence bearing on issues of fact. This included, for example, intensive scrutiny of the evidence bearing on the planning process, the significance of the documentary material bearing on planning policy, and the opportunities available to the respondents to put their case to the planners. We found both submissions very helpful in identifying the salient points of the substantial amount of evidence put before us. We have, of course, had regard to these submissions in our assessment of the whole evidence. We do not attempt to repeat this detail except insofar as necessary to allow substantive submissions to be understood.
Mr Mitchell submitted that the case had been made out on all three grounds set out in section 1(3) of the Act but expressed the view that if the Tribunal was not satisfied under (c) it would be difficult to establish grounds (a) or (b). Accordingly he proposed to deal with matters simply under head (c).
He stressed that the statutory reference was to "some" reasonable use and not "any". The proposed use was plainly reasonable and the Tribunal should therefore grant the discharge. The remedy expected by the Act would be compensation. This was provided by section 1(4). The Tribunal should only refuse to grant a discharge if monetary compensation was inadequate. The statutory provisions made clear that it could not be said that a use was not reasonable for the purposes of (c) just because it would lead to loss or disadvantage to a benefited proprietor. Something more was required by way of objection. He accepted, however, that in considering whether a use was reasonable it was not enough to point to the profit derived from it allowing some beneficial use of other land.
The applications by Union Square Developments Limited and Graham Group plc and the application by Railtrack except insofar as relating to areas described as 2E and 2F were unopposed and should be granted as they did impede the proposed use for retail shopping. In relation to the two critical areas it was essential to recognise that the land obligation was simply "use as railway purposes". This was undefined and unrestricted. There was no obligation to maintain the current use of the land as a railway freight depot or as a railhead. It could be used, for example, as a staff car park - or no doubt as a passenger car park - or for general storage. It was the fundamental fallacy in the respondents' case that the land obligation was treated as in itself preserving a freight depot.
The applicants' case was that the proposed development was a use which was reasonable. The site as a whole had to be looked at, not the parts. It was obvious common sense that the issue was the development as a whole. In relation to that development, the planning process had been detailed and careful. It was well established that a grant of planning permission was not determinative of matters before the Tribunal but was persuasive of public aspects. This was a case where public aspects dominated. The development was, according to Mr Mitchell, of enormous strategic significance to Aberdeen. He told us that it could not be broken into components. The democratic process was of particular importance in such a case. The local planning authority was best placed to decide on the exercise of balancing important public aspects. He contended that the planning authority was unusually well placed to deal with the question of whether, if they turned down the application, they would ever get a better one.
He stressed that it was clear that the respondents had had a substantive input to that process. Their objections had been considered. In the circumstances the planning consent provided a very solid basis for the assertion that the development was a reasonable use of the land. All relevant interests of the Harbour Board had been taken into account. The planning process and the evidence of Mr Cockhead were sufficient to demonstrate that it was a reasonable use which was impeded by the land obligation. The relevance of, and weight to be given to, the planning permission was well established. Mr Mitchell referred to dicta in Miller Group Ltd v Gardner's Exrs., 1992 SLT (Lands Tr) 62 at 67 and 68 and to articles by Cusine in Scottish Law and Practice Quarterly 2000 at page 315; and Young in 1988 Journal of the Law Society of Scotland, page 434. These articles summarised various cases which had been before the Tribunal and in which the position of planning permission had been discussed. What was clear was that the extent to which planning permission might be determinative would depend on the facts of the particular case. Although logically it could never be absolutely determinative because the Tribunal always required to consider the matter, there were some cases in which the grant of planning permission came close to being determinative. At one end of the scale there were cases which had no general planning significance. The Tribunal would be concerned about the private rights of benefited proprietors. The present case was, however, at the other end of the spectrum. The Tribunal could not act as a court of appeal reviewing the planning process.
Mr Mitchell stressed that his main submission was essentially that the issues of fact bearing on reasonableness were public issues. The local planning authority was best placed to reach a view on these issues. The other submissions were subsidiary. He stressed, however, that the position of the Harbour Board had been considered as part of the balancing of the planning process and did not require separate assessment. In any event, his secondary case was that the respondents' contentions were based on several fallacies. There was, he submitted, no proper evidence that the Harbour Board would ever have a need for a railhead at Guild Street. At its highest, as matter of evidence, all that could be said was that there might be a such need in the long term future. Further, the Harbour Board had no truly private interest. They operated as a Trust and their interest was essentially a public one. There had been no attempt to identify any particular body of interest such as that of shippers or cargo handlers which might be harmed by loss of the railhead. It was presented as a matter of general public interest. This was precisely the type of issue weighed by the planning authority. It was not for the Tribunal to attempt to say that the planning authority had not properly weighed the public interest. It would require a very strong case for a benefited proprietor to show that the public type of interest which they purported to represent was strong enough to rebut the presumption that all public interest had been properly balanced.
If the respondents' case was being presented as protection of a private interest, there was simply no evidence to support it. The only relevant private interest would be financial. As a corporate body, he submitted that it could have no other type of interest. There was no evidence of the nature of the respondents' own financial interest and certainly no evidence that it was of any significance.
He submitted that it would be necessary for the respondents to prove that there would be a positive requirement for the harbour to have the existing railhead. He examined the evidence on this and submitted that it was mere speculation. In any event, even if the railhead stayed open it had not been established that it would provide a relevant rail freight service. This depended upon whether either Freightline or EWS Limited would provide such a service. This had not been proved. After some discussion, Mr Mitchell accepted that it would be a relevant factor if the respondents had established a long term requirement even if it were one which would not arise for several years. However this had to be based on some positive evidence. Here it was mere speculation and should be ignored on the evidence.
A third level of speculation for the respondents was that the relevant railhead would be preferable to the one to be established at Craiginches. Plainly the existing one had the obvious advantage of proximity. There was, however, no evidence of the overall implications of this. The harbour might be the only freight user at that railhead. The overall economics had not been explored. Good handling facilities or sharing of costs might well outweigh the question of proximity. The difference might be marginal at best.
Standing back, Mr Mitchell suggested that it could be seen not only that the whole case for the respondents was based on speculation but that it was speculation on matters upon which evidence could have been available. He went on to clarify the point that closure of the existing railhead was linked to the availability of Craiginches because it was growth in the central peninsula which was the focus of the Harbour Board's case. Plainly Waterloo Yard would be better for the northern quays. Together, these two facilities would be ample for any foreseeable need of the Harbour Board. (We understood Mr Mitchell to say that the planning permission made closure of the existing railhead conditional upon the opening of a railhead at Craiginches with suitable facilities. It certainly appeared that this was an integral part of his submission. As noted below it was later accepted that there was no such specific condition).
In response to Sir Crispin's submissions, Mr Mitchell elaborated certain of his legal propositions. He submitted that the decision in McArthur v Mahoney 1975 SLT (Lands Tr) 2 was unsatisfactory. He pointed to the fact that in Keith v Texaco Ltd, 1977 SLT (Lands Tr) 16 Lord Elliott, sitting with Mr Brayne who had presided over the former case, had referred to that case as being "very exceptional". In his submission section 1(3) plainly did not leave scope for any residual discretion after the Tribunal had decided in "all the circumstances" that "some reasonable use" was impeded. If all the circumstances were looked at to establish ground (c) there was no statutory basis for saying that the Tribunal could look at these circumstances again for a different purpose. Further, such construction was inconsistent with the provisions of section 1(4). In his submission that provision applied to the whole of subsection (3), but even on a narrow view, it clearly applied to (c). Subsection (4) provided a hurdle to be overcome before giving the Tribunal power to refuse in circumstances where ground (c) had been established. It was quite inconsistent with that express power to say that the Tribunal had, in any event, a general unfettered discretion. The language was clear. "May refuse" conferred an express power. By implication there was no such power if the Tribunal was not of the opinion specified. He accepted that, in theory there might be circumstances which could have different weight for the purpose of establishing reasonable use and in relation to a general discretion. That fact did not itself establish that there was such a general discretion.
McArthur v Mahoney in any event proceeded on a fallacy. It was incorrect to say that the underlying purpose had disappeared. However, that was a case which was dealt with under ground (a). There was no discussion in the case of the possible effect of reading subsections (3) and (4) together. The proper construction was that, since a specific limited discretion was given in respect of ground (c), there was no discretion in relation to grounds (a) and (b). There was no reason in principle why there should be a broad discretion for these subsections and only a precisely defined discretion in relation to (c). In his submission the decision in McArthur v Mahoney was wrong in relation to the discretion but he did not require to go so far because the present case turned on (c).
The applicants had accepted that if they did not succeed on (c) they were unlikely to succeed on the other grounds although they maintained their position on each. In relation to (c), subsection (4) required "exceptional circumstances". There was no genus and Mr Mitchell accepted that these circumstances were not tied in any way to questions of amenity. What was put forward, indirectly, in this case as a relevant exceptional circumstance was the proposition that there was no quantifiable loss in money terms. The loss referred to by the Harbour Board was a loss to the general public interest. That however went to the very heart of the respondents' case. They could not say that the loss was to the public because that was the very area on which the public planning process should be preferred.
He referred to Henderson v Mansell LTS/LO/1992/41. That was a case where no ground had been established. Where the Tribunal reached a conclusion that one of the grounds of section 1(3) had been established, that, in his submission was an end. There was no further decision to be taken - except where appropriate in relation to subsection (4). The decision in that case could be tested, in his submission, by looking at it from the other side. If the benefited proprietor was seeking to enforce an obligation not to plant a tree in order to maintain a site line for the benefit of a third party that, in his submission, would have to be considered as an aspect of reasonableness; a first stage argument. It would be an unnecessarily awkward approach to hold that planting the tree was a reasonable use and then refuse a discharge by reference to section 1(4).
Mr Mitchell later returned to make further comment on Henderson v Mansell. He submitted that it had no bearing on the present where the reasonable use in question was use of the land itself. In any event, it was not a decision to follow. One obvious example of use which might not directly benefit the actual applicant, was use of land as a road. The main benefit would usually, if not inevitably be to third parties. He submitted that it was plain that such an application could fall under ground (c). It would be for the Tribunal to determine reasonableness.
It was clear that in considering each ground the Tribunal had to consider all the circumstances. In relation to (a) it was clear, without express evidence, that circumstances had changed enormously since 1887. The requirements of transport had changed dramatically since the days of the horse and cart. For example, of four million tonnes per annum of harbour traffic, less than 0.5 per cent was currently being sent from the railhead.
Although (c) was seen as the strongest ground, it was possible that the Tribunal would wish to proceed under (a) at least in respect of certain matters. For example, the peripheral requirements related to buildings specification. The reason for them was not clear. It might be related to amenity. It might well be possible for development to comply with these requirements. In other words they would not impede reasonable use of the ground and could not readily be discharged under (c). There was, however, no issue of amenity in the present case. There was no amenity to be protected in Market Street. These aspects could, accordingly, be dealt with under (a).
An important part of the whole circumstances was the way the obligation was created. There was nothing in the Caledonian Railway Act 1887 to support the view that there had been a compulsory purchase. The question had been one of vires. What was clear from the terms of the Act and Schedule was that the arrangement was wholly for the benefit of the railway. There was no reference to freight. There was no obligation to allow access to the Harbour Board, indeed there was an obligation to maintain a wall on Market Street subject to permission to allow access. The parliamentary history had no bearing on the weight to be given to the obligation.
Mr Mitchell accepted that there was nothing to tie the grant of planning permission to the development of Raiths or Craiginches. In response to a question as to whether it would be possible for the Tribunal to grant a discharge subject to any condition relative to these other sites, he submitted that the Tribunal should either grant or refuse. He submitted that the position was shown with sufficient clarity in the letter of 15 October 2001 from the Office of the Rail Regulator. However, if that matter was seen as a sticking point, the Tribunal could put the case out By Order to discuss what kind of guarantee would be acceptable from the Rail Regulator or the Strategic Rail Authority.
He went on to deal in detail with criticisms made of the planning process. He stressed that the respondents had been given opportunity to present their case. If they had not done so adequately that was their own responsibility. The Tribunal should not review the grant of planning permission. The decision in Lothian Regional Council v George Wimpey & Co Ltd 1995 SLT (Lands Tr) 2 could be distinguished. In that case no planning permission had been required. The Tribunal accordingly were free to look at the planning policy. In the present case the democratic planning authority was better placed to make assessments of policy. Similarly he made the point that the Strategic Rail Authority had had adequate opportunity to consider the application. That was a factor entitled to considerable weight.
Finally he submitted that any doubt which currently existed as to the position of Railtrack was irrelevant to the issues before the Tribunal. The aim of administration was to preserve the business as a going concern: section 59(2) of the Railway Act 1993. If the development did not, in fact, go ahead, the Harbour Board would be no worse off than they are at present. The fact of uncertainty did not advance their position.
Sir Crispin submitted that no grounds had been established for discharge. The applicants' case could be seen to rest entirely on the proposition that as planning permission had been granted the respondents' proprietary interest could be ignored. He further submitted that the real issue related to the use of the railway land and, accordingly, if we were minded to refuse the application so based, we should not grant the other applications. It was well established that the Tribunal would look only at specific proposals. Accordingly the applications taken together should be granted or refused as a whole.
Sir Crispin then analysed the nature of the evidence given. We need not repeat all of this analysis. He founded heavily on the absence of any evidence of viability of the proposals or part proposals. There was no evidence as to why the relevant railhead land was needed for development. There had been some vague second-hand evidence that it was needed to maximise profits from the overall development. There was no evidence of how this related to the development prospects for Raiths Farm. There was no specific detail of the proposals for Craiginches. He made various criticisms of the affidavit evidence and the weight to be given to it. He pointed out that the evidence on behalf of EWS Limited was by a property manager and not an operations or marketing expert. He made detailed submissions as to the weight to be given to the evidence for the Harbour Board compared with that of the applicants.
Turning to substantive issues, Sir Crispin stressed that the onus was on the applicants to establish one of the grounds. He submitted that it was then for the Tribunal to exercise its discretion in all the circumstances. He cited Re Ghey and Galton's application  2 QB 650; Main v Lord Doune 1972 SLT (Lands Tr) 14 at 19; Murrayfield Ice Rink v SRU 1973 SC 21 at 26; Lothian Regional Council v George Wimpey & Co at page 3.
Counsel next submitted that there was a strong line of authority for the proposition that a burden imposed for one purpose could still be used to achieve another purpose if that purpose was reasonable and appropriate. That was so even if the original purpose had disappeared entirely. Driscoll v Church of England Commissioners  1 QB 330 at 341; McArthur v Mahoney 1975 SLT (Lands Tr) 2; Merchant Company Education Board v Bailey (LTS/LO/1994/51).
Turning to the specific grounds of section 1(3) he submitted that in the present case there was no basis for (a). There was no evidence that there had been any change in the character of the land or of the land value: he cited Bolton v Aberdeen Corporation 1992 SLT (Lands Tr) 26 and Biggerstaff v SSBCA (LTS/LO/1990/17). If there had been any change due to the negligent failure of the owner this was irrelevant: Re Davis 1971 P & CR 115. It was accordingly irrelevant that little use was being made of the railhead at present.
There was no relevant change in the neighbourhood. The Tribunal had heard no evidence of the circumstances in 1888. There were no other circumstances which might be deemed material. There was still a working rail yard. There was nothing to suggest that it could not continue to be used as such. At its highest all that was established was that a better facility could be provided at Raiths Farm and that this would be funded from sale of the relevant subject.
In relation to (b) it was clear that there was a significant benefit to the Harbour Board. He cited Lothian Regional Council v George Wimpey & Co in support of the proposition that for a case to succeed on head (b) the benefit must be relatively pointless. That could not be said here. It was not relevant to say that it prevented the burdened proprietor from realising a maximum profit Bolton, supra, page 26 at 29.
Sir Crispin accepted that the application should stand or fall on head (c). That was a question to be determined in light of all the circumstances: Re Ghey, supra; and Bolton, supra. Although he submitted that the Tribunal had an overriding discretion to be exercised even if a particular ground was held to be established, he accepted that, in practice, the Tribunal normally used its discretion to determine whether or not the ground was established. There was no clear example of the Tribunal having found (c) established and then going on to refuse under a broad discretion. However that course was open.
In any event, examination of the whole circumstances should lead to the conclusion that the proposed use was not reasonable in the context of the land obligation. It should be noted that although, in form, the obligation was one appearing in the usual way as part of the burdened title, it had the support of an Act of Parliament. It was authorised by the Caledonian Railway Act 1887. Although he departed from a suggestion that the procedures at that time were similar to compulsory purchase he submitted that the fact that the agreement had statutory approval was a relevant factor adding to the weight to be given to the obligation. The fact that the particular form of obligation had been supported by Act of Parliament procedures at that time were, he suggested, similar to compulsory purchase. This was a relevant factor. Another relevant factor was that the Harbour Board had been consistent throughout in seeking to protect the freight facility. Railtrack had recently given an undertaking to keep the railhead. The Board could not enforce that undertaking, as such, but it was a strong factor showing recent emphasis. That should be regarded by the Tribunal as important: Anderson v Trotter 1998 SC 925; Crombie v Heriot's Trustees 1972 SLT (Lands Tr) 40.
He stressed that planners were not concerned with private rights. The Tribunal, on the other hand, should be slow to vary a mutual contract particularly when this would be the first departure. He contended that when the Board had the benefit of a contractual obligation which allowed use of an existing railhead, it was not appropriate that they be compelled to use their own land at Waterloo Yard in substitution. That land was already earmarked for a different use. They should be free to use it as they thought best.
The other proposed alternative was at Craiginches. He pointed out that it seemed that the planning permission had not, in fact, been tied in any way to the provision of alternative facilities at Craiginches. He referred to various authorities on the implications of a grant of planning consent. It was not determinative. The Tribunal could look at the circumstances in which it was given. They could have regard in this case to the fact that the local planning authority was, itself, a part owner of the development subjects. The Tribunal could take into account the history of planning policies relative to the land and relative to rail links generally. An important fact was that some assumptions made in course of the granting of planning permission could be shown to be wrong. He referred to Solway Cedar Limited v Henry 1972 SLT (Lands Tr) 42; Noble v Viscount Reidhaven (LTS/LO/12989/98 at page 10 and 11); Cunninghame DC v Fforde (LTS/LO/1992/8 at page 17); Lothian Regional Council v Wimpey, supra; and Re Lloyd's application 1993 66 P & CR.
In relation to the weight to be given to apparent consents, he also referred to the fact that the Scottish Executive had not "called in" the application. This was said to be based on the fact that they would only call in applications which raised national issues. It should be noted that rail transport was not a devolved issue; Scotland Act, Schedule 5E(2). It was, perhaps, unsurprising that the Scottish Executive had no particular interest in national freight issues. The Strategic Rail Authority eventually withdrew their objections. On the evidence he suggested that they were only a shadow authority and were not fully up to speed at the time of making their decision. They had effectively been presented with a fait accompli.
Sir Crispin moved to deal with the issue of motive as part of the overall assessment of reasonableness. On the evidence the only motive spoken to was to maximise the profit of the development. There was some evidence that the development as a whole required to go ahead to safeguard the needs of BP but there was no sufficient evidence to allow the Tribunal to deal with these issues. Even if development at Raiths Farm was relevant there was no evidence as to whether it could be funded adequately by the smaller scale development at Guild Street. There was clear authority that the financial circumstances of an applicant or his desire to maximise his profit from the land were not relevant matters. Reference could be made to Main v Lord Doune and Bolton, supra. On the evidence, the underlying theme was a desire to use the land for the benefit of Raiths Farm and the people using it. It was not for the intrinsic good of the burdened subjects.
He further submitted that the use to be made of other land was irrelevant. He based this on dicta in Henderson v Mansell, supra at 26 and 27. In response to comment from the Tribunal he said that even if some of the dicta in that case might go too far it could be taken as authority for a strong presumption against the reasonableness of use if the use was not in any sensible way related to the burdened land itself. In this case there was not even evidence that the money was required for a local development, such as Raiths Farm might be. Railtrack might well seek to maximise the surplus in order to develop other parts of the network. It was clear from the plans produced by Morrison that the original development brief was for the smaller site and that Morrison thought such a development viable. It was important to note that preservation of the rail yard would not stop the main development.
Counsel submitted that an applicant could not benefit from his own changes: Anderson v Trotter, supra, Nicolson v Campbell's Trustees 1981 SLT (Lands Tr) 10; Solway Cedar Limited, supra. This applied in a case like the present where the rail freight facility had become run down through lack of proper investment. That was the fault of Railtrack or its predecessor British Rail. Whether it was described as fault or simply something attributable to the actings of these parties, the fact was that it was within their control. Even if that was not a positive factor to be taken against the applicants, it provided a full explanation as to why there was not much freight from the harbour going through the railhead at present. Matters might have been quite different had there been any active promotion of the subjects as a railhead for use by harbour freight.
Sir Crispin next dealt with the uncertainty created by the fact that the applicants were currently in administration in terms of the Railways Act 1993. If Railtrack proved unable to pay its debts the whole financial arrangements proposed could be in disarray. Even if the development proceeded surplus funds might not be applied to replace local facilities. The underlying thrust of the applicants' case and the material from the Rail Regulator was to the effect that the existing railhead would not be given up until a new yard was developed. It was not clear what might happen. Although Union Street were said to be the developers their shares were held 50% by Stanifer and 50% by Railtrack. There was uncertainty over other rail infrastructure. He submitted that under ground (c) the Tribunal should only authorise a specific proposed use. That had to be a use which would probably go ahead. At present the application could be regarded as premature: Jackson v Bell (LTS/LO/1996/12 and 13) and United Auctions (Scotland) Ltd v BRB 1991 SLT (Lands Tr) 71.
Finally, Sir Crispin dealt with the implications of section 1(4). The Harbour Board had no interest in compensation. Their concern was with the loss of an infrastructure. They had access over land which they used to own. They would wish to buy it back if they could do so at a reasonable valuation as railway land. The circumstances were indeed exceptional. Further he pointed out that the Board had always been interested to discuss a compromise. Preservation of two lines would meet their need. This could be accommodated if the Tribunal was minded to refuse. It would be appropriate to put matters out for discussion to consider whether a restricted grant could go ahead. The Harbour Board was anxious to co-operate with the development.
In response to Mr Mitchell's subsequent submissions on fact and law which we have, already summarised, Sir Crispin provided further helpful analysis of the evidence. On the issue of statutory interpretation he submitted that on a proper construction of section 1(3) the decision in McArthur v Mahoney was correct. Section 1(3) provides that the Tribunal may discharge a land obligation on being satisfied that in all the circumstances either (a), (b) or (c) applied. The initial stage is to get over the hurdle of establishing that in all the circumstances one of these grounds applies. Once over that hurdle the Tribunal then has a discretion. It is trite law that a discretion is to be exercised having regard to all the circumstances. A distinction might be drawn between circumstances relevant to the grounds (a), (b) or (c) and other circumstances which might be relevant to exercise of a general discretion. It was, however, difficult to identify specific examples. There could well be circumstances relevant to that discretion which were not relevant to the issue of reasonable use.
We found Sir Crispin's submission in relation to subsection (4) to lack the clarity of his earlier submissions. He contended that the subsection was not a relevant consideration in relation to (a) and (b). Essentially, section 1(4) was saying that it was not a relevant circumstance to refuse a discharge on ground (a) or (b) if compensation was not adequate. In other words that compensation was not a relevant circumstance in relation to the exercise of the discretion. Parliament had said that the amount of compensation was not a relevant circumstance in deciding whether to grant under (a), (b) or (c). Compensation was not a relevant circumstance to be considered in the general discretion as far as (a) and (b) were concerned but was a particular factor that may be taken to account in relation to (c). This was a recognition that the circumstances relevant to deciding that the grounds apply could be different from the circumstances which might apply to the exercise of the discretion. The distinction could be drawn on a theoretical level but it was difficult to find an example of circumstances relevant to the discretion which were not relevant in deciding whether the grounds apply.
An example of the difference to be given to factors bearing on discretion might be that a grant of planning permission could be accepted as highly persuasive in relation to reasonableness of use under (c) but the Tribunal would be able to look at the bases of challenge to that planning process in exercise of its discretion. He did not accept the suggestion that circumstances in which such a distinction could be drawn would truly require to be identified as exceptional. In his submission that expression was limited by the statutory provision to the application of section 1(4). In effect, Compensation was not relevant in relation to the establishment of ground (c) but if the Tribunal found that ground established it would then require to have regard under section 1(4), to the question of whether compensation was adequate, if there were exceptional circumstances.
In short, in his submission, the first leg was that the Tribunal may discharge if satisfied in all the circumstances that something was reasonable. The weight to be given to all the circumstances in deciding whether something was reasonable might be different to the weight that was given to those same circumstances in deciding whether or not to exercise the discretion.
In the present case although the respondents had reserved the right to claim compensation it could fairly be taken from the evidence of Mr Braithwaite that money could not be a real compensation for loss of the access route. It would be impossible to quantify. The case related to loss of a fundamental part of the infrastructure and plainly was an exceptional case within the meaning of section 1(4). This was not on the basis that there was no monetary value but because it was more fundamental than could be assessed in monetary terms. Essentially the role of the respondents was to attract business to the harbour. Vessels paid harbour dues. The more attractive the infrastructure the more the business of the harbour would grow.
In relation to conditional grant of permission for the development Sir Crispin submitted that there was no authority for the proposition that control of the use of the freight terminal was within the power of the Rail Regulator. There was no evidence that any binding conditions had been imposed by the Rail Regulator. On the face of the material before the Tribunal the permissions were strictly unconditional.
For completeness we note that Sir Crispin confirmed that he did not challenge the way matters were put in Stevens v Smith (unreported, 16 May 1997 LTS/LO/1996/16). Both counsel expressed the view that there was nothing in the case relevant to the present.
Although the formal application refers to all three of the grounds set out in section 1(3), the applicants accept on a realistic basis that the matter falls to be determined under ground (c) and under reference to the critical land obligation restricting use of parts of the land to use "for railway purposes". The obligation prevents the proposed use as part of a travel, retail and leisure complex. In terms of the Act we have to be satisfied having regard to "all the circumstances" that this is a "reasonable use" within the meaning of (c). Counsel were agreed that if the applicants were successful on this issue, the other land obligations referred to in the applications could also be discharged.
The circumstances bearing on 'reasonable use' include three principal elements. Reasonableness from a general or public viewpoint, sometimes referred to as prima facie reasonableness; assessment of the adverse impact on the benefited proprietor; and identification of the original purpose of the obligation. Most circumstances requiring consideration will fall to be considered in relation to these elements although as in this case there may well be other relevant circumstances. We shall look at the implications of each of those three elements in turn and then at the other circumstances. Finally, we have to consider the question of 'over-riding discretion'.
We were assisted by the reference to the articles by Eric Young and Prof. D.J Cusine, now Sheriff Cusine as providing a convenient summary of the cases bearing on evidence of planning permission in the context of applications under ground (c). A grant of planning permission is not conclusive as to reasonable use for the purposes of ground (c), but it may be persuasive unless there is something to put against it: see, for example, Biggerstaff. It is, of course, important to read dicta according to their context. References to planning permission as being strongly persuasive tend to be restricted to the context of objections made in relation to issues such as amenity or traffic matters which are thought to be primarily public in nature. Properly understood, reference to planning consent as persuasive is usually equivalent to saying that the use proposed can be accepted as reasonable from the point of view of the general public. In other words, a use which has received necessary public consents, such as planning permission, can be treated as prima facie reasonable.
It was contended that the weight to be given to planning permission in the present case was very strong, if not compelling, because it was a decision taken by a body well placed - as the Tribunal is not - to take that decision and because, unusually, most, if not all, the relevant interests in the case are essentially public.
We consider that a grant of planning permission cannot be assumed to do more than establish that the proposed use is not contrary to the public interest. More will be required before that planning permission can be given any significant weight in the balance. In Re Davie's application (at page 135) it was observed: "In effect what a planning permission is saying is that it is not contrary to the public interest that a particular form of development for which application has been made, should be permitted; but that is not the same as saying (as is specifically required under section 84(1A)(b) of the Act), that it is "is contrary to the public interest" if that particular form of development is not permitted". We are not concerned with the requirements of section 84 and we also accept that modern planning law may put more emphasis on policy guidance than was recognised in 1971. The observation is a reminder of the limits to the inferences which can be drawn from a grant of planning permission.
The development which has planning permission includes important public transportation elements as well as leisure and retail facilities. We are satisfied that a development of the passenger railway station and bus station would provide a significant public benefit and might be thought to be of considerable weight in favour of the application. However, it is clear that the new bus station and the renovated railway station are not to be on, nor critically close to, the relevant burdened land. A similar but smaller development would be possible on an adjacent site. We heard no evidence that such a development would fully meet public needs but, because of the geographical layout, there is no doubt that it would be adequate for the important public purpose of redevelopment of the existing transportation services. It would provide a range of retail shopping facilities easily accessible to public transport users. Mr Mitchell in his submissions stressed the unusual public importance of the development. But we had heard no direct evidence of this and the submission was, we think, patently based on the improved transportation facilities. The only evidence explaining why the larger development was preferred, was the suggestion that it was required in order to release the maximum return from the site. This would allow sufficient funds to develop new railheads at places remote from the burdened site. It would be possible, on the evidence, for us to conclude that the burdened land had been added simply with a view to maximising the applicants' return from the land. It was not suggested that it was in any sense a necessary part of the new passenger facilities.
We accept that it is proper for us to look at use of the burdened land as part of the larger development and that there is no fundamental requirement to look at the use proposed of the burdened land in isolation. However, it is use of the burdened land which has to be justified as reasonable. Our primary focus is on that. Evidence relating to the use to be made of adjacent land is, at best, a secondary consideration. However, the applicants would be entitled to peril their case on the proposition that use of the land as part of a shopping or leisure centre development - without reference to the transport facilities - is a reasonable use of the land. This could be supported by reference to the enjoyment of that use by the general public. The public can be expected to make use of the shopping and leisure facilities and that can be seen to confer a benefit. In addition, although we have reservations about Sir Crispin's concept of development of land "for its own intrinsic good" it is fair to say that use as a shopping centre is a use which adds value to the land itself and can be seen as reasonable from that point of view.
While a public need for an improved transportation complex would be a relevant factor in support of reasonableness, we are satisfied that there is no obligation on an applicant to establish a positive public need for the proposed use. In Main v Lord Doune, at page 18 the tribunal did refer to absence of proof of need as 'a powerful attack on reasonableness' but we think it clear that this observation requires to be read in context as an aspect of the alleged 'unnecessary detraction from residential character' of the neighbourhood said to be involved in that case. There may well be circumstances in which a perceived public need for the proposed use is an important consideration but there is no justification for treating it as a necessary component.
In short, we are satisfied that the absence of evidence of why the larger development is proposed instead of the smaller one, is not a fatal omission. It does present a difficulty for the applicants in respect that the grant of planning consent for the development as a whole was strongly relied on. This consent may well have been influenced by the perceived benefit of improved passenger transportation facilities. When assessing the weight to be given to planning consent as an element in the balancing exercise we must keep in mind that it has not been established that development of the burdened land is in any way required for that particular purpose. However, it can also be accepted that planning permission would not have been granted had the authority not been satisfied that there was no need for a freight yard to be retained at Guild Street. In this context, it may be said that we consider it unlikely that the planning authority could have failed to recognise the need to give this aspect careful consideration. The prima facie importance of the rail connection would be apparent and we note, for example, the evidence of Amanda Howie on behalf of the local Chamber of Commerce. The Chamber repeatedly stressed to the local authority the importance they attached to it. It cannot be thought that the Committee simply ignored their concerns.
Although we shall have to return to the question of whether there is any justification for the view that the grant of consent is entitled to some greater weight in the particular circumstances of this case, we are satisfied that it is persuasive that the development proposed is a reasonable use of the land from the viewpoint of the interests of the public at large.
We next have to consider the probable adverse impact of that use and to determine what weight should be given to that in the assessment. Identification of the purpose of any land obligation is plainly an important element in that determination. Where it can be seen that the intention of the original parties was to give the benefited proprietor an identifiable benefit or to protect him from an identifiable harm and where the effect of the use proposed would lead to loss of the very benefit or protection contemplated, this will add significantly to the weight to be given to that adverse effect: see discussion in Stevens v Smith, page 20-21; Millar Group v Gardner's Exs., and Merchant Company Education Board v Bailey and Others, page 15 (referred to further, below). At the other end of the scale are land obligations where the original purpose can be shown to have had nothing whatever to do with protection from the type of use now proposed. In that situation, a use which is for the benefit of the burdened proprietor and consistent with the public interest is likely to be accepted as a "reasonable use" unless the adverse effect is so clamant in its impact that it manifestly changes the character of an otherwise reasonable use.
Although identification of purpose has always been recognised by the tribunal to be an important element in the overall assessment, it must not be forgotten that prior to the 1970 Act, a land obligation gave the benefited proprietor complete control. It was accordingly unnecessary for parties to give formal expression to questions of purpose. Identification of purpose, while important, is not a conclusive element in our determination under section 1(3). McArthur & Mahoney is an important case supporting the proposition that a land obligation can be enforced for a purpose which was not intended by the initial parties. An unfortunate feature was that the argument proceeded in terms of the 'substratum' of the obligation having gone. The tribunal expressly said that they were dealing with the argument relative to discretion on that assumption. There was no explicit examination of purpose and it is appropriate, in the context of assessing the weight to be given to such an obligation, to look more closely at the circumstances of that case. It seems likely that the decision entirely reflected the actual purpose of the land obligation. The tribunal in the Merchant Schools case, at page 15, commented on McArthur v Mahoney in the following terms; "The underlying purpose of an obligation is a relevant circumstance which the Tribunal should take into account. And in the ordinary run of cases it seems to us that it would weigh against the upholding of an obligation if it were to be shown that that would mean that a benefited or affected proprietor would derive or continue to enjoy a fortuitous benefit, clearly not intended when the obligation was created. By that measure it might be thought that McArthur was indeed an exceptional case. However the continuing benefit in that instance was, although fortuitous, a direct effect of the intended original configuration of the buildings in question; and the change which had occurred was not a physical change in the subjects in question or in the neighbourhood thereof".
The obligation proceeded on a narrative that the subjects were disponed for the purposes only of 'a pier and necessary stores and buildings' and provided, in short, that the buildings were not to be greater than one storey. At the time of the application the pier had ceased to be used. The substratum had gone in the sense that the original reason for having any buildings had disappeared. It is not clear how this had a bearing on the purposes of the burden and this was not discussed in the judgement. There is nothing in the report - nor in the title itself - to suggest that the height restriction was taken for the benefit of the pier. It was apparent on inspection that the height restriction was of importance to the preservation of the amenity of existing buildings. It preserved a magnificent view. The tribunal recognised the value of the obligation for that purpose. It is not clear what other purpose there might have been.
However, although it is not clear precisely what was intended by use of the word 'substratum', it was certainly used in a sense which embraced the concept of the initial purpose of the obligation having disappeared. We are satisfied that it is not sufficient for an applicant simply to show that the purpose of an obligation is not relevant to the use now proposed. But in our view that is a vital element in assessment of the weight to be given to the impact of the proposed use on the benefited proprietor. We agree with the view expressed in Keith v Texaco that McArthur v Mahoney was a very exceptional case. Where no weight can be given to the purpose of the obligation, we consider that in practice it will be necessary to find clear evidence of a substantial adverse effect to outweigh an otherwise reasonable use.
In the present case, we are satisfied that the obligation was not intended to ensure that the Commissioners had a rail freight facility on their doorstep. We do not accept the respondents' submission that the provisions of the Caledonian Railway Act 1887 add any weight to the obligation. On the contrary, we consider that the history of the parliamentary involvement in the matter tends to show that the land obligation was in fact taken to meet the needs of the burdened proprietors. The need for an Act of Parliament to authorise the agreement appears clearly to relate to issues of vires. The terms of the sale agreement are set out as a schedule to the Act. Clause 14 shows that the agreement was conditional on parliamentary approval. The Act authorised the Company to enter upon, take and use the lands specified in the Minute of Agreement as to be sold to the Company. There is force in the submission that, unusually, the very existence of the land obligation appears, in this case, to have been for the purposes of the burdened proprietor rather than the "benefited" proprietor. Of greater significance, however, is the fact that the terms of the obligation point away from an intention to protect any interests of the Board. As Mr Mitchell submitted, 'railway purposes' is entirely unspecific and shows no positive benefit to the Board. Further, there are provisions about access which make no attempt to secure access for the Board. In the events which occurred the burdened proprietors were obliged to erect and maintain either a ten foot wall of specified description or buildings with walls of similar description along the frontage with Market Street , 'except in so far as the frontage shall be used as an access from that street.'. It is plain that this was entirely in the option of the burdened proprietor. The Board and their predecessors had no right to use the railway and certainly no right to direct access.
It is of no weight but is of interest and consistent with the above that in relation to one of the plots covered by the application (through which ran one of the former lines to Jamieson's Quay), the Deeside Railway Company were, in 1860, taken bound by the Harbour Commissioners to build and maintain houses, buildings or warehouses, unless the ground was occupied 'for an access from the said Deeside or other Railway to the Quay'. The railway use was an alternative, in the option of the disponee.
The present title plainly reflects the expectation that a railhead would be provided. A railway company establishing a railhead would be expected to maximise use and to do so by ensuring that all convenient access was afforded to potential users. The detail of layout and access can be seen as incidental. Although Mr Martin's evidence was that there had been no relevant changes in relation to the obligation, we accept as obvious that the harbour itself and the traffic conditions were wholly different from the present. If there was a railhead the harbour users would be welcomed as users if they wished to avail themselves of the facility. The parties no doubt proceeded on that understanding. Although carriage by rail might initially have been perceived mainly as a competitor to carriage by sea, we can accept that the Harbour Commissioners would have seen the benefit of easy rail access at that time.
We accept that the land obligation is one which can be used to protect the Board interests in the railhead. But, its nature gives it no special status. It is clear that there was no railhead on the burdened land at the relevant time. (Indeed, the title expressly envisaged use for other purposes for the first seven years.) The obligation cannot be seen as intended to protect the Board from loss of a rail freight service, still less from loss of a service capable of taking container traffic.
An issue which has a bearing on identification of purpose, is the question of whether compliance with the land obligation would achieve protection of the benefited proprietor's interest. This also has a bearing on the nature of the loss to the benefited proprietor. In the present case it is clear that the obligation could be complied with in a way which would be of no benefit to the respondents. Although it is likely that, if the obligation was not discharged, the use as railhead would continue and that use would benefit the respondents in the sense of providing facilities for harbour traffic, this is not ensured by the terms of the land obligation. Use "for railway purposes" would have to be interpreted in a way consistent with the presumption of freedom. It could, no doubt, include use as a station car park or use for offices connected with the operations of the railway. Although in practice there is no question of this, the applicants would be free to rearrange the layout of the proposed development to use the burdened land for the purposes of the passenger station. Even if used as a freight railhead there would be no obligation to provide a container service or handling facilities for containers.
We are satisfied that, having regard to the purpose and direct effect of the land obligation, little weight should be given to it in the balancing of circumstances bearing on "reasonable use".
We turn to consider the evidence of the effect on the Harbour Board of discharge of the obligation on the assumption that this can be taken as having the effect of depriving them of a facility which they would otherwise have. It should be noted that there was no evidence that the respondents themselves would make use of the railhead. It could best be viewed as a an alternative means of access and egress for their customers.
We are satisfied that the transfer of the railhead from the existing site to a new facility at Craiginches would be of no adverse significance to the current operations of the Board. At present, harbour traffic makes no use of rail freight for containers. Further, lorries which use the current railhead require to travel via Virginia Street and the extra journey time which would be involved in travel to and from Craiginches has not been established to be of any practical adverse importance. The current use of rail is by less than 0.5% of total harbour traffic and, even if it was to cease altogether there is nothing to suggest that this would be likely to have a detectable impact on the interests of the respondents.
The main disputed issue of fact related to the possible future demand for rail facilities for harbour traffic. We accept that it makes sense from the viewpoint of the Board to seek to maintain a railhead as close to the central peninsula in the harbour as possible. There are good reasons for this. However, we consider that there is no persuasive evidence that the loss of the freight facility at Guild Street would be likely to have a significant adverse impact on the respondents, at least if the current intention to establish a suitable railhead at Craiginches can be relied on.
We have had considerable difficulty over the question of Craiginches. On the evidence before us, we are satisfied that the site could be developed to cope with current harbour related traffic. Current traffic is not container based and is, in any event, of no significant volume. However, there is nothing in the material before us to show that the applicants are bound to develop the railhead at Craiginches. It was not made a condition of planning permission. The terms of the letter of 15 October 2001 from the Office of the Rail Regulator are misleading in part and unsatisfactory as a whole. Having regard to the heading and the first paragraph it is clear that the letter is a response to questions about the freight yard. The letter spells out that the "Rail Regulator is not required to approve Network Changes'. It is not clear what was meant by "Network Changes" but it is likely that this was a reference to use rather than infra-structure. With regard to the land itself, the letter refers to the sale of the freight yard as involving relocation of facilities currently being used by English, Welsh & Scottish Railway and a minor closure being granted under section 41 of the Railways Act. The minor closure determination is said to have been subject to conditions concerning the provision of alternative facilities. In fact, section 41 relates to passenger facilities and it has become clear that the provision of alternative facilities referred to in the minor closure determination had no bearing on the freight yard. The letter does say that "notification of a network change for improvements to Craiginches and the development of Raiths Farm has been received by this office". Having regard to the previous parts of the letter it is not clear what the Office expected to do with the notification. Mr Mitchell recognised that this might be our view and suggested that an opportunity be given for further documentary evidence to be obtained.
Although the respondents' witnesses expressed doubt as to whether Craiginches could cope with containers, no attempt was made to lead specific evidence in support of this doubt. However, the matter arose at site inspection. The applicants had arranged for us to meet Mr Elrick, the manager of the EWS operations at Guild Street. A Mr Whitty of the Estates Department was also expected to be in attendance. In the event, Mr Whitty was delayed and Mr Elrick accompanied our inspection as the only representative of the applicants. A number of representatives of the respondents also attended.
Although the proposal at Craiginches had been described - by the Shadow Strategic Rail Authority, for example, - in terms of an "upgrade at Craiginches Depot", it became clear that the proposal was in fact to develop an entirely new facility on the south side of the main line. The sidings on the north are used by Blue Circle Cement. When showing us where the site lay, Mr Elrick observed, spontaneously and as one pointing out the obvious, that it would not be able to handle containers. The available site was very narrow. He pointed out that part of the site was too close to the main line to be permitted to be used for loading containers.
As we have said Mr Elrick's comments emerged spontaneously as part of his description of the site. The site itself is currently occupied by a number of users working from temporary buildings. He advised us that they were on short term leases and could swiftly be removed. On our return to the Yard, we met Mr Whitty who was armed with plans of the proposed development at Craiginches. No such plans had been lodged. In the presence of Mr Scott, the respondents' solicitor, we pointed out our reluctance to have evidence introduced informally when both parties had been represented by counsel at a formal hearing. However, we invited Mr Whitty to lodge his plan of Craiginches and to point out the site on it. He pointed to the provision of separate access and egress facilities so that there would be no requirement for lorries to turn and expressed his understanding that this 'resolved the problem of container handling". This did not appear to us to address the supposed problem of the narrow site but we considered it inappropriate to examine either Mr Elrick or Mr Whitty ourselves.
The only formal evidence we had heard on this subject was the evidence of Mr Spaven. He was put forward as an expert on rail freight and the respondents' witnesses recognised his weight. He had referred to the new facility at Craiginches and we had understood him to be satisfied that it could take 100,000 tonnes per annum. He could not have reached any figure without some consideration of the detail of the proposals although this was not discussed in his evidence. His evidence was that the precise configuration of the new facility at Craiginches would be a matter for EWS to determine to meet the needs of their customers. It was expected that the facility there would be used for harbour traffic. One minor aspect of his evidence may give cause for doubt on this specific point. When asked by the tribunal to explain his criticism of the existing curved tracks at Guild Street he said that he relied on what he had been told by the EWS Terminal Supervisor. He understood that the curve was regarded as a major limiting factor. This suggests that he was not, in fact, holding himself out as an expert on container handling techniques.
The fact that Mr Woodburn had understood that Craiginches was not seriously being put forward as a substitute site adds to our unease. As we have seen, only Mr Spaven was led in evidence for the applicants. No detail of the proposals was lodged and there was no positive evidence of any commitment to Craiginches. We return below to this matter. For present purposes we proceed on the assumption that a facility will be established there capable of dealing with 100,000 tpa and capable of coping with containers.
It is clear that the substantial growth in container and general traffic passing through the harbour from 1991 to 2001 has not been in any way dependent on availability of an adjacent rail link. The analysis by Mr Woodburn did not identify any specific harbour user or class of harbour user likely to wish to use rail. The bulk of material being moved through the harbour was probably comparatively local in origin or destination. There was no evidence of the proportion of harbour traffic destined for places sufficiently distant to justify rail use. There was no evidence that it would arise with such regularity or frequency as to justify a designated railhead. There was no evidence that any class of user would be deterred from use of the harbour by inability to transfer goods to rail in Guild Street. In effect Mr Woodburn's evidence was that there was a prospective market for rail use by harbour traffic. If Guild Street was not available that market might not be realised. If Craiginches did attract users it would not be able to cope with more than 100,000 tonnes per annum. There was a prospective market for more than that. The site at Waterloo Yard could cope with double that volume of container traffic but that would severely restrict its capacity for other traffic. In any event it was not nearly as convenient as Guild Street.
This is not essentially different from the conclusion expressed by Mr Spaven that the new railhead at Craiginches would be able to serve as an effective railhead for any short to medium-term growth in sea-to-rail traffic. In the event of major long-term growth of such traffic, the Board could develop its own convenient and cost-effective new railhead at Waterloo Quay Yard.
It may be said that evidence of the potential Scapa Flow Hub service pointed to a class of user which might be deterred by lack of an immediately accessible railhead at the harbour. It can be accepted that the idea of a Scapa Flow Hub was realistic and it was a proposal likely to be examined more closely. If it came to fruition there would be competition for feeder links. The idea behind such a development was that smaller vessels could be used for the domestic stages than could be used for transatlantic transport. Goods could, accordingly, be taken by sea from the Hub to appropriate ports and not simply to ports with capacity to handle very large vessels. It was contended that Aberdeen would be in the market as an appropriate port. We readily accept that it might have that role in relation to material intended for north east Scotland. If it was marketed as an appropriate port for transfer of goods to the south it would require good transport facilities. The more obvious route would be to take goods further south by sea. We heard evidence that a rail link would be quicker than continuing by sea. However, it seems clear that the logic of the Hub system is to maximise use of sea transport. Although Mr Braithwaite said that the absence of reference to Aberdeen in the preliminary discussion documents relating to the Hub could be explained simply on the basis that they were indeed preliminary discussions, it may also reflect a view of the developers of the Hub that Aberdeen was not likely to be an appropriate port.
It was not disputed that the international trend is towards 9' 6' containers. The rail link from Aberdeen to the south cannot cope with that size at present. Witnesses were at one in hoping that the line would, at some time, be upgraded for this purpose. There was no suggestion that it was likely to happen in the immediately foreseeable future. There was nothing to indicate that the exercise would be economically justified from the point of view of Railtrack. Mr Spaven said that a preliminary study had identified 93 structures which would require alteration between Aberdeen and Mossend.
There would be an apparent attraction in encouraging use of the Hub to allow sea freight to go direct to the Forth where it would be convenient for the Scottish central belt and would justify improved rail facilities south. However, the Hub is still in the early stages and the prospect of Aberdeen realistically competing for it cannot be excluded. It would require suitable facilities in the harbour and substantial reorganisation of current facilities to accommodate it. In practice it would require the commitment of Waterloo Yard if Guild Street was not available. That would create organisational problems for the harbour but we are not persuaded that the difference between a railhead at Waterloo Yard and one at Guild Street would likely be of significance in relation to the overall exercise of attracting a Hub feeder service. Prospective customers would have no reason to make a direct comparison. The emphasis on Guild Street in this context has a clear justification in the desire of the Board to be free to maximise their advantages but we do not consider that to be of significant weight in the present context.
Apart from the speculation about the Hub there was no evidence of any likely adverse effect of loss of the facility at Guild Street on the respondents as such. Although there was some evidence in very general terms that absence of an adjacent railhead might make the harbour less competitive, there was no specific or persuasive evidence of this. There was no detail of competition and no evidence that any particular class of user would be likely to go elsewhere. There was, accordingly, no evidence that the respondents would sustain any significant degree of loss if the land obligation was discharged. Such loss would need to come from a finding that the harbour would become less attractive and would either lose out to competitors or fail to stimulate a growth of movement of goods Neither was established.
Although we are not limited to the effect on the respondents themselves when considering the harmful impact of a proposed use, it is that effect which can be expected to be of greatest weight. Even if it could be accepted that travel to Craiginches would involve extra costs, the extra costs would not be borne by the Board and, in any event, might well be wholly negated by better handling facilities leading to shorter loading times. There was no evidence of the specific relative impact of such costs on any relevant party. We cannot say that the loss to any other members of the public has been established to be of any major significance.
It may be noted that we understand the views of Mr Braithwaite, that in seeking to ensure the prosperity of the harbour every potential plus factor should be maximised. That is a sensible approach. Indeed, the evidence of Mr Spaven as to the comparative disadvantages of the geographical situation of Aberdeen simply underlines the need to make the most of every resource. We can have regard to risk of loss from the Harbour becoming less competitive and the perception of the respondents to that effect but do not accept that as entitled to significant weight. If the purpose of the land obligation had been to protect the interests of the harbour in this regard, the decision in this case would have been one of greater difficulty.
In the context of Board's desire to maintain the greatest flexibility, it is appropriate to deal with the evidence bearing on the availability of Waterloo Yard. This is, at present, an asset which the Board are free to use as they wish for their own harbour purposes. They have current plans for use as a facility for break-bulk. Their plans do not include use for containers. If there was a significant demand for rail transportation of containers they might, in absence of Guild Street, require to use the yard for that purpose. This would, of course, limit the use they could otherwise make of it. It would not be as convenient for central peninsula traffic. It is obvious that it cannot be presented as an improvement on the facilities available at Guild Street. However, we are satisfied that the site is big enough to accommodate all foreseeable container traffic if developed for that purpose. This might make it impossible for the Board to go ahead with their own break-bulk proposals. However the facility at Craiginches could probably handle all foreseeable break-bulk if it was not to be used for any harbour linked container traffic.
The actual journey times involved in moving containers from the central peninsula to Waterloo Yard would not be significantly greater than the move to Guild Street. If other harbour activities permitted, the containers could be moved by tugmaster vehicles within the harbour itself. However, on the present configuration of the harbour this would not often be possible because of handling operations at the Northern Quays. We accept that the matter requires to be assessed on the basis of the need for a road link. However it may be noted that the outward and return legs of the road link would, for all practical purposes, be over the same route as is currently required for the single leg of the trip from Guild Street to the central peninsula. It can be assumed that this is currently an acceptable element in terms of time and cost. (We heard no evidence of any attempts having been made, to date, to develop the direct crossing which Mr Braithwaite envisaged for the future).
The main difficulty about use of Waterloo Yard for containers appears to be due to the configuration of the railway to the north of Guild Street. All container traffic would be destined south. The first movement from Waterloo would be to travel about a mile and a half north to join the main line at Kittybrewster. This would require to be arranged to fit the timing of passenger trains between Aberdeen and the north. The train would then require to travel on the single main line back south to pass through the passenger station at Guild Street. In the context of long rail journeys, the additional three miles and the northern component are not of significance. However the problems in relation to the main line manoeuvres would detract from the speed of the rail link and, perhaps, from the reliability of the service. This might have an adverse impact on the attraction of the service to potential customers. There was no real dispute about this although it may, perhaps, be an illustration of over-close focussing on the particular. In reality, we would expect potential customers to be concerned only with the overall timing of the rail leg of the journey and, critically, with the convenience of the destination terminal for their own purposes. Overall reliability of the rail stage will depend upon conditions all the way down the line. We heard no evidence of this. We did hear of the importance attached to speed, reliability and cost. Taking the rail stage as a whole, it seems unlikely that the Kittybrewster element would have a significant adverse impact.
We conclude that, in the context of this application, the availability of Waterloo Yard can properly be viewed as significantly lessening any potential impact on harbour business of the loss of the Guild Street yard.
A very minor point in relation to the weight to be given to the impact on the Board through loss of an adjacent rail freight facility, is that although the role of rail freight, as essentially complementary to the sea borne freight, appeared to be accepted in the course of evidence and submissions, and is to some extent reflected in current national policy, this may not always be the position. Mr Woodburn referred to a growing policy emphasis on use of rail or sea as an alternative to road. There may be situations where rail and sea are in direct competition. It cannot be assumed against the applicants that they would be bound to supply a competitor and it might, for example, suit the rail haulage companies to service some other harbour.
In summary, we accept that the Board's wish to maintain the railhead is an entirely reasonable and sensible attitude. However, there is no persuasive evidence that there will be a positive need for a railhead at the burdened site and the evidence of adverse impact on the respondents suggests that the effect will be slight.
As we have indicated, we consider that the principal factors to be considered are the reasonableness of use from a public interest viewpoint; the purpose of the land obligation; and the adverse impact on the benefited proprietor. However, there are other important factors in the present case.
In this case much of the material relied on by the respondents did appear to be presented in the public interest. That ranged from the national interest as represented in the National Planning Policy Guidelines to the interest of the local community in relation to use of the harbour. Where a particular public interest has been assessed by a relevant authority and a decision reached taking that public interest as a whole, the Tribunal cannot sensibly attempt to repeat that exercise. We are entitled, at least in absence of persuasive evidence to the contrary, to accept relevant permissions as persuasive. We did not find the criticisms of aspects of the planning process to detract from that in this case. Errors of fact in material presented to the local planning committee were not shown to be of major importance. Further, it is not known specifically what the committee made of such material and to what extent it was modified by their own knowledge. One might hazard a guess that the suggestion that bus lanes would prevent growth in use of private cars would not be treated as a guaranteed assertion of fact. However, we do not know and proceed on the view that this has not been shown to be of importance in the overall context. We are also satisfied that nothing turns on the fact that the local authority had an interest as owners of a small part of the northern section of the development site.
We heard a good deal of detail about national planning policies. These are public matters and are not of major significance in our assessment of private rights. The planning system and, in the case of railways, the controls exercised by the Strategic Rail Authority and the Rail Regulator are the appropriate means of giving effect to public policy. It is, in any event necessary to look closely at local circumstances when considering the application of national policy.
Although the applicants did not in fact lead direct evidence that the development of Raiths was conditional on the closing of Guild Street, we find on balance of probabilities that that is the case. Sir Crispin, in his submissions, recognised that as the underlying theme of the applicants' case. It emerges from the planning material and was spoken to by by Mr Spaven and Mr Woodburn as representing their understanding of the matter. It was the respondents' understanding as set out in their pleadings. Although we heard a good deal of evidence about the availability of grants for improvement of rail freight facilities it was not suggested that these would extend to provision of such a large scale development.
We consider that the strategy of taking the existing main freight terminal out of the city centre and establishing a new modern facility at Raiths is, on the face of it, a justifiable move in the public interest. It will meet the needs of major customers and free the city streets of heavy vehicle movements by such customers. We have no doubt that these are factors in support of the proposed use of the land. The national policies must be viewed against that background. The replacement at Raiths has the potential to incorporate 110,000 square feet of warehousing in addition to the ability to handle containerised and traditional traffic. Even without the new facility at Craiginches, this new site would offer a greater overall capacity than that offered by Guild Street. Insofar as it is national policy to increase use of rail freight, this additional facility must be accepted as a positive public benefit.
Mr Woodburn's analysis in October 2001 identified about a million tonnes of traffic with potential for transfer to rail; of that, approximately 15% was estimated to be harbour traffic. The figures were, of course, subject to challenge and for present purposes we use them simply by reference to the ratio they show. Maintenance of a railhead in the city centre for the benefit of harbour traffic is likely to be less attractive for other users and on these figures the balance is very clearly in favour of the new railhead at Raiths Farm. This was recognised, for example, by Lord Berkeley. He described the proposed new facilities at Raiths and Craiginches as providing "good facilities for traffic from Dyce Airport and from most industry located both in Aberdeen and the surrounding area". He recognised that the one exception was the port itself. In his written evidence it was clear that Lord Berkeley, in speaking to the benefit of retention of Guild Street, was seeing it as a facility to be retained in addition to Raiths Farm and no attempt at comparison of benefits was required. This also appeared from his oral evidence. If money was unlimited it would be preferable for Railtrack to keep Guild Street as well as provide the two new facilities.
There is no doubt that maintenance of rail links as an alternative to roads is, all else being equal, a reasonable aim. Policies which emphasise the need to maximise rail freight are likely to be met by provision of a new more accessible railhead even if its location is such that it does not suit all potential users. A policy which exchanges one piece of land for another is not inconsistent with a policy which stresses the importance of retention of existing rail land. Whether such an exchange is a good or bad thing will require assessment of the detail of the local circumstances. We do not consider that the national policy of retention of rail land is in itself relevant in the context of a proposal to change from a city centre railhead to a larger one on the outskirts.
Other policy documents supported maintenance of rail links to ports. Again, the detail requires assessment of local circumstances. On the evidence it appears that rail links only become relevant for long journeys. There was no consensus as to what would constitute a long journey but we are persuaded that in this context it is normally something of the order of 200 miles. Lord Berkeley thought that journeys under that distance might well be suitable for rail but there was no evidence that this would lead to any significant advantage for users. Except in relation to dedicated works terminals, there will invariably be some road movement. There will inevitably be some delay at the stage of loading trains from lorries. A road journey of a hundred miles might well be accomplished before a full train load had been assembled. Even for longer journeys, it is not self-evident that national policy would place a high priority on maintenance of a depot one street's width away as opposed to a mile and a half away. That is essentially a matter of local circumstances for local assessment.
When considering the applicability of national policy in relation to the maintaining of a direct rail link to harbours, the availability of a rail connection at Waterloo Yard must be borne in mind. In the broad terms appropriate to national policy, it can be said that the harbour has a direct rail connection at that yard. The facility at Guild Street, while very close is less accessible from the harbour taken as a unit and is not directly connected to harbour land.
It must also be recognised that the reasons behind the encouragement of rail use may not necessarily be reasons which support the proposition that there will be a harmful effect on any current road user who is unable to make use of rail. A scheme which takes others off the roads may be of equal benefit.
We do not think that anything emerges from consideration of these policies which detracts from the weight to be given to the grant of planning permission as evidence that, from the viewpoint of the public interest, the proposed use of the site as part of the major development described above is reasonable.
For the applicants, reliance was also placed on the approval by the Shadow Strategic Rail Authority. The remit of that authority was not established to our satisfaction. It appeared, however, to be accepted that it was a body well placed to determine the best interests of the railway system having regard to the interests of potential customers. We can accordingly accept that approval by the Strategic Rail Authority is a factor which tends to support the reasonableness of the proposed use by reference to an assessment of benefit to the public as actual or potential users of the railway system as a whole. It is plain that a main purpose of their meeting on 12 October 2000 was to give specific but, apparently, belated consideration to the impact on the Harbour Board. Their consideration proceeded against what they identified as the public benefits of the redevelopment scheme including the fact that "revenues from the scheme" would be used to provide a new depot at Raiths Farm and "upgrade of Craiginches Depot". We accept that the discussion in relation to the Harbour Board may not have been entirely satisfactory. There was reference to the rail link between the central peninsula and the depot as being put forward as an integral part of any future growth of inter-modal traffic. The approval also seems to have proceeded on the basis that there would be a potential for a dock to rail link at Waterloo Quay although this was recognised as a less satisfactory option that the Guild Street link.
While it appears that the Shadow Strategic Rail Authority had, ultimately, given consideration to the needs of the harbour traffic as against the needs of other traffic, they might well have been strongly influenced by the perceived positive benefit to current or committed customers such as the paper mills or BP. The decision might also have been influenced by the prospect of gains on the passenger side. As we have observed, there is no evidence before us that such gains were dependent on loss of the freight facility at Guild Street. We are, accordingly, inclined to attach little positive weight to the approval, but to treat it as tending to neutralise some of the wider policy concerns expressed by the respondents.
We place no weight on the apparent approval of the Rail Regulator. We are not clear as to his jurisdiction and cannot easily identify the particular public interest represented. We have commented above on the terms of the letter of 15 October 2001.
We consider that quite apart from the evidence of the approval by the Shadow Strategic Rail Authority and the planning approval, the proposal to move the freight depot out of the centre of the city can be accepted as positively beneficial in the public interest. The probability is that the use of these railheads will result in a significant overall decrease in heavy vehicle usage within the city itself. In addition, the availability of Raiths is likely to lead to the removal of over 50,000 tpa of aviation fuel loads from road freight. These are important public benefits. On the evidence before us we are satisfied that although a railhead close to the harbour would, of course, minimise the impact of harbour traffic, that benefit is likely to be significantly less than the net road traffic gain from the facility at Raiths.
Sir Crispin asked us to consider motive as part of our assessment of reasonableness. He submitted that there was evidence that the purpose of the larger development was to produce the maximum financial return with a view to facilitating development of a new railhead at Raiths. We have accepted that that is so. He contended that although a positive personal reason for a particular development would not normally be accepted by the Tribunal as a relevant factor in support of an application relating to heritable rights, the decision in Henderson v Mansell, supported the view that where the motive for an application was essentially to allow use of the land by others for the benefit of development on a different site, that was a strong factor against reasonableness.
In Henderson the applicant wished to be free to deal with his land in a way which was assumed to be prevented by the land obligation. The burdened land would be opened up to provide suitable sight lines at a road junction. The justification for this related to development on another site. It is clear that examination of the reasons behind the proposal would have been relevant in assessing reasonableness and, indeed, the decision in the case was pronounced in such terms. (Sir Crispin did not attempt to found on the proposition that such an application was incompetent and we simply note that a future tribunal might wish to reconsider that aspect of the decision.)
When we look at the substance of the matter, the issue of motive is not straightforward. It was not explored with any witnesses. Sir Crispin drew attention to the failure of the applicants to provide suitable witnesses for cross examination. No attempt was made by the respondents to cite such witnesses. Even if the proposed new use can be seen to be related to the development of a new facility at Raiths, the motivation can be described in a variety of ways. It can be said in simple terms that the applicants wished to make a better use of land in the city centre than using it for a railhead when the site is not conveniently located for the majority of existing or immediately foreseeable customers. In aiming for a better use they opt to maximise the value to be derived from the land. It is not clear by what criteria this could be said to be an unreasonable attitude and we do not consider that it in itself justifies any adverse conclusion as to the reasonableness of the use proposed.
However, the matter does not end there. We would consider it a positive factor supporting the reasonableness of the proposed use from the public viewpoint that it allowed a more beneficial overall use of railway assets to be made. We do not think that the decision in Henderson is authority for the proposition that where the main motive for a proposed use of land is to permit the beneficial use of other land, that is necessarily irrelevant. We certainly do not accept that it is necessarily a factor pointing against reasonableness and now consider that if the decision in that case supports such a contention it goes too far. There is no doubt that the prime focus of our attention must be the nature of the use made of the land itself. The impact of that use on the public at large is plainly a circumstance to be considered.
We have no doubt that the benefits of the new terminal at Raiths are factors in support of the proposed use of the land. We see no sound basis for excluding these factors from the circumstances we should consider. If the development of Raiths is conditional on the closure of Guild Street, it would follow that development on the smaller site - as discussed in Option A - would leave the restricted 6.7 acre site at Guild Street as the only freight yard serving the Aberdeen area. There was certainly nothing in the evidence to support any idea that the new developments at Raiths or Craiginches would have any prospect of going ahead in addition to retention of the railhead at Guild Street. The material bearing on the current status of Railtrack gave no encouragement to any view that funds would become available for the purpose.
It was contended that the application was premature. In the pleadings this contention appeared as a preliminary plea based on averments that the Rail Regulator had still to make a decision. That was not repeated in the submissions before us. The letter of 15 October 2001, while unsatisfactory for the reasons discussed above, could, no doubt, be taken to represent a decision. The argument was based on the proposition that an application under ground (c) must relate to a specific use and, accordingly that the tribunal must be satisfied that the use proposed is likely to go ahead. This proposition appeared to be presented in the context of factors to be considered in relation to the assessment of the establishment of ground (c). The factual basis for submission rested on the present status of Railtrack as being in administration under the provisions of the Railways Act 1993. This was addressed at some length in the course of the hearing of a motion for discharge, or caution, on 16 October 2001 and we need not repeat the detail. Reference was also made to the failure of the developers to find a tenant for the superstore in the proposed development as an indication of its speculative nature. In response it was the applicants' position that the development was reasonably likely to proceed and that, in any event, there would be no prejudice to the respondents if it did not.
There are dicta which suggest that prematurity may be taken as a preliminary plea in the context of section 1(3)(c). That approach was taken in Jackson v Bell and reference can be made to dicta in Murrayfield Ice Rink; Cameron v Stirling 1988 SLT (Lands Tr) 18 and United Auctions (Scotland) Ltd. There may well be circumstances in which that course is appropriate and, for the present, it may simply be noted that we are not persuaded that the provisions of section 1(3)(c) make it necessary for applicants to demonstrate positively that the land obligation is the only factor impeding a particular use. There is no doubt that the existence of other obstacles may be relevant to our overall assessment under ground (c).
It is clear that the Tribunal has to be satisfied that a specified use is reasonably likely to take place. Where an application seeks variation to allow a particular development to proceed, the respondents will probably be adequately protected by the terms of the variation. However, where a complete discharge is sought there is no machinery to restrict future use to that founded on in the application. In some circumstances that will be an important factor in the overall assessment.
In the present case, the future administration of Railtrack is in some doubt. However, we were not persuaded that this casts any real doubt over the probability that the development proposed will go ahead. Railtrack is a major nationwide operation. Although there may be policy changes as a result of changes in the management, we think it reasonable to assume that established local plans will proceed in absence of specific indication to the contrary. It is abundantly plain that the application is not frivolous. We are satisfied that it is the current intention of the applicants to proceed. This is supported by the terms of a letter of 12 October 2001 from John O'Brien described as a director of Railtrack, Property. Having regard to the said motion of October, he wrote to the Clerk to the Tribunal on 12 October narrating that he was duly authorised on behalf of the 'Railtrack PLC, In Railway Administration' and confirming that Railtrack remained committed to the Union Square development. Although the letter was sparse in its detail, we accept that its intention was tolerably plain. It supports the view we have formed that there is no real reason to doubt that the development will proceed broadly on the lines now proposed.
Mr Mitchell's submission that the respondents will not be harmed if the development does not go ahead is plainly too simplistic. A future proposal might be very different. If the land obligation had been discharged, the Board would be wholly dependent on the need for the various consents referred to above. However, as we are satisfied that the land obligation was not intended to provide the Board with a power to compel provision of a railhead at Guild Street we consider that the need for these consents is an acceptable protection for the Board against the risk that some radically new development might be substituted for the one we have been considering.
The detail of the development as such has not been a critical factor in this case. Although part of the Board's opposition was based on the nature of the impact of development and the consequent addition to traffic congestion and air pollution, we have not been able to regard these factors as of any real weight in the context of the land obligation. The substantive objection related to the availability of a rail freight facility. Although we have had regard to the public benefits of Raiths, that will not be a benefit to the Board. Accordingly, in the context of the argument on prematurity we do not consider the risk of a development going ahead without Raiths to be one which is of much weight. Such a development is, in any event, unlikely to get the necessary consents. We do accept that there would be a risk to the Board if a development was to proceed without the substitution of a railhead at Craiginches and we return to that below.
On our assessment of the whole relevant circumstances, we are satisfied that the use proposed is a reasonable one and that the applicants have established the case under ground (c) of section 1(3). It was accepted that such a decision made it unnecessary to deal with the other grounds or to deal specifically with the various different titles and land obligations covered by the three applications.
The respondents contended that the tribunal had an over-riding discretion to refuse even if ground (c) was established. However, in holding ourselves satisfied that the ground is established in all the circumstances, we are exercising a discretion. We doubt whether we have a further discretion. It was recognised that, in practice, there would seldom be a role for such an over-riding discretion but it was argued that it might apply in this case.
In the course of submission it appeared that the existence of such a discretion was supported in part by reference to the obligation to have regard to "all the circumstances". But it is clear that this provision relates to our assessment of whether any of the grounds have been established. The broad power under section 1(3) is expressed simply by the word 'may'. We heard no submission that that word, on its own, was sufficient to confer a discretion. We are aware of statutory contexts in which it can have that effect but this is not universal: Lord Advocate v Glasgow Corporation 1973 S.C. (HL) 1 at 12.
Assessment of reasonableness requires a context or set of criteria, express or implied. We entirely accept that the weight to be given to particular circumstances in the context of assessment of reasonable use would not necessarily be the same as the weight to be attached to these circumstances in the context of the discharge of an obligation. It is, however, well established that ground (c) brings the two together by setting use in the context of the land obligation. That being so it is questionable whether there is any basis for a contention that Parliament intended two different discretionary assessments.
The matter can, perhaps, best be tested by looking at the section as a whole. For example, in relation to ground (a) the tribunal has a statutory obligation to have regard to all the circumstances before reaching a conclusion that an obligation is unreasonable or inappropriate. This in effect gives a tribunal a discretion to decide whether an obligation is unreasonable. It seems to us that we would require to find some clear basis before we could find that parliament intended us to have an over-riding discretion to decide that although satisfied that the obligation was in all the circumstances unreasonable, it should not be discharged. The same can be said of the other grounds. The purpose of the exercise is to deal with land obligations. If we have balanced all the circumstances and reached a conclusion that we are satisfied that the existence of the obligation impedes a use which is reasonable having regard to the nature and purpose of the land obligation, it is not clear what justification there could be for an implied power to have a further look at the matter.
Although we understood Sir Crispin to refer to McArthur v Mahoney as supporting the view that the tribunal has an over-riding discretion even when satisfied that one of the grounds has been established, the decision in that case supports the view that the stage for exercise of discretion is when the tribunal has to consider whether any ground is established. In that case the tribunal exercised their discretion by finding that the applicants had not established that it was unreasonable or inappropriate under (a) nor that the proposed use was reasonable in all the circumstances. There was no use of any 'over-riding' discretion.
It follows that the result reached by the tribunal in McArthur v Mahoney did not require consideration of the implications of section 1(4) in relation to the question of an over-riding discretion to be exercised after, and in spite of, being satisfied that one of the grounds in section 1(3) had been established. It is sufficient to say that we found Mr Mitchell's submissions persuasive on this point. As we observe above, it would in our view be necessary, having regard to the scheme of the section to have some clear indication of an intention to give an over-riding discretion. The provisions of section 1(4) point against such intention. If there was a general discretion, it would have been unnecessary to provide an explicit one. We did not understand Sir Crispin to rely on section 1(4) as a basis for exercise of discretion in this case.
Our conclusions are based on the terms of the Scottish legislation. As the relevant English provisions of the Law of Property Act 1925 are quite different in terms and layout from the provisions of section 1, we consider that decisions on the proper approach to the English Act are an uncertain guide. As we have seen, the Scottish legislation makes express provision for consideration of "all the circumstances" as part of the assessment of whether the grounds have been established. That is an important provision in the identification of a discretion. Section 84 of the 1925 Act makes no explicit reference to a need to consider all the circumstances. It is not doubted that the section provides a discretion and there is, perhaps, no reason to define closely the stage at which the discretion is to be applied.
We are not aware of any Scottish decisions in which an over-riding discretion has been used. There are, of course, cases in which the existence of such discretion has been accepted. In the Merchant Company case at page 13 the tribunal said: "In any event none of the cases cited on the applicants' behalf support the basic proposition for which they contended, namely that once it is shown that section 1(3)(a) applies the Tribunal have no discretion and so are obliged to discharge the obligation". The Tribunal went on to quote references in McArthur v Mahoney dealing with the essential discretion of the Tribunal in its approach to section 1. As we have discussed, however, these dicta can be seen to refer to the exercise of a discretion at the stage of assessing of the grounds. Although there is little doubt that the Tribunal in the Merchant Company case had in mind an over-riding discretion, the decision itself did not proceed on that basis. The tribunal in North East Fife District Council v Lees 1989 SLT (Lands Tr) 30 clearly assumed that it had an over-riding discretion but the discharge sought in that case was granted.
In Anderson v Trotter, the Inner House, under reference to a "thin end of the wedge" argument, said: "We do not understand the Tribunal as restricting their consideration of that point to the question whether in the circumstances the feuing condition impeded some reasonable use of the land. They were entitled to take it into account in connection with the question of whether they should exercise their discretion in favour of the application". The observation was expressed as a "comment" and was plainly obiter. It is, nevertheless, entitled to weight as explicit acceptance of an over-riding discretion and in the circumstances we have given further consideration to the question of discharge on the assumption that we do have such discretion.
As we have had regard to all the circumstances in reaching a decision on the reasonableness of the proposal, we consider that exercise of a further discretion by refusing to discharge would require very special features: North East Fife District Council v Lees, at 33H. Although we have accepted that there is evidence which would justify the Board's perception of the railhead as a useful asset for the harbour and we did not find the assessment of 'reasonable use' to be a straightforward task in this case, we are satisfied that the evidence on their behalf was not of the overwhelmingly persuasive nature which would, in our view, be required for exercise of any "long-stop" discretion to refuse.
For completeness we should mention the specific argument that the various deficiencies in the planning process, while not sufficient to allow us to disregard the planning consent in an assessment of reasonableness, should nevertheless be used as part of our overall discretion. This is not persuasive. We have considered the detail of the planning process and planning policies in deciding whether the proposed use is reasonable in all the circumstances.
We return to the difficulties over Craiginches. The case was presented on the basis that the development there would be provided as a replacement for the freight facilities at Guild Street and it is not appropriate for us to attempt any assessment based on the absence of facilities at Craiginches. We were not invited to do so. Indeed, Mr Mitchell invited us to continue the matter and deal with it 'by order', if necessary for assurance on this point.
We accept that there is considerable uncertainty over the future of Railtrack. As discussed above we do not consider that it is fatal to the application as a whole. However before discharging the obligation we wish to be satisfied that Railtrack are in some reasonable sense bound to provide a suitable facility at Craiginches before the Guild Street facility is lost. We consider that in the first instance the parties are best placed to consider what mechanism can most suitably be adopted to identify that commitment.
Our concern is with the physical establishment of a suitable facility on the lines discussed in evidence; in other words a facility capable of taking at least 100,000 tpa. We do not consider it necessary that Railtrack be committed to maintain such a facility in perpetuity.
We assume that, in practice, Railtrack will have to make arrangements which ensure that the facility at Craiginches is in place before the existing yard is closed down. However, there may be certain difficulties in ensuring this through the procedures available to us. It may be that this is adequately controlled by the powers available to the Rail Regulator or Strategic Rail Authority. If not, a degree of flexibility might be achieved through the grant of some sort of waiver by the respondents. We do not know what technical difficulties there may be in effecting a changeover.
If this matter cannot be resolved by agreement we shall have to proceed by further hearing. Mr Mitchell suggested the matter might be disposed off on written evidence. Parties should aim for this but it will, of course, depend on the nature of the issues which prevent agreement. If Mr Mitchell seeks to rely on a suitable letter from the Rail Regulator, it would be necessary, at the very least, to ensure that such letter adequately narrated the nature of the Rail Regulator's jurisdiction and authority and set out adequate detail of the facility to be provided at Craiginches.
The various other land obligations covered by the three applications were familiar types of building restrictions together with some, equally familiar, lists of forbidden activities. There was no opposition to discharge of these burdens on grounds of amenity or nuisance and we are satisfied that as they prevent the use we have found to be reasonable in respect of the railway burden, this is sufficient to satisfy us that they too should be discharged by reference to ground (c). In the circumstances, however, this must await clarification of the position in relation to Craiginches.
Sir Crispin expressly reserved the respondents' position in relation to compensation. Although we consider it inappropriate at this stage to make any formal order, the respondents should now determine whether, if the discharge is granted, any claim is to be presented. If so they should advise the Clerk to the Tribunal and the applicants of the basis of such claim on or before 25 January 2002. Any necessary formal orders will then be made in relation to the procedure to be adopted.
Note issued: 17 December 2001
LTS/LO/2001/13, 14 to 21 & 28 to 31