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CROSSRAIL BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Crossrail Bill as introduced in the House of Commons on 16th November 2006. They have been prepared by the Department for Transport in order to assist the reader of the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The main purpose of this Bill is to secure the powers necessary to build Crossrail. Crossrail will consist of new rail tunnels running west-east through central London connecting directly with existing surface rail routes to Maidenhead and Heathrow in the west and Shenfield and Abbey Wood in the east. By connecting the major London rail terminals of Paddington and Liverpool Street, Crossrail will enable interconnecting mainline train services to cross the centre of London via a number of new purpose-built stations.
HYBRID BILLS
4. The Bill is a Hybrid Bill because it contains provisions which have an impact on the interests of particular individuals, as well as containing provisions of a more general public nature. A Hybrid Bill is a Public Bill promoted by the Government which is treated like a Private Bill for part of its passage through Parliament, in addition to being considered in the same way as any other Public Bill.
5. This means that individuals, groups and organisations opposed to the Bill have an opportunity to oppose it or to seek its amendment before a Select Committee in either or both Houses. Those who are especially and directly affected by the Bill may "petition" against it. The original period for petitioning against the Bill in the House of Commons has now expired (there is a second opportunity to petition in the House of Lords). But whenever it is proposed to amend the Bill in a way which means that someone is especially and directly affected, a new petitioning period in relation to that amendment is triggered. A petitioner may have his arguments heard by the Select Committee in the relevant House.
Bill 2—EN 54/2
6. The House of Commons Information Office Factsheet on Hybrid Bills (L5) can be found at http://www.parliament.uk/documents/upload/l05.pdf.
THE LINK WITH PREVIOUS CROSSRAIL BILLS, "CARRY-OVER" AND PENDING AMENDMENTS
7. The Bill is in the same form as the Crossrail Bill considered by the House of Commons in the Parliamentary session 2005-06 (and in the same form as that originally introduced in the 2004-05 session). Proceedings on the predecessor Bill were suspended at the end of the last Parliamentary session. However, by virtue of a motion passed by the House of Commons on 31st October 2006, the Bill (as introduced in the 2006-07 session) is deemed to have been read a first and second time and, in effect, to have reached the same stage as its predecessor in the process of scrutiny before a Parliamentary Select Committee. This effect is commonly referred to as the "carry-over" of the earlier Bill. Carry-over is a common feature of Hybrid Bills because of the amount of Parliamentary time and scrutiny they require.
8. Although amendments to the Crossrail Bill of the 2005-06 session were put forward by the Secretary of State they were not formally accepted as amendments to that Bill and retain their status as pending amendments, their acceptability being a matter for the Crossrail Select Committee. All amendments to the Crossrail Bill (whether arising from the last Parliamentary session or this) will be formally made to the Bill after the Crossrail Select Committee has completed its consideration of the Bill. This is why those who have followed the progress of the Bill may find that it does not contain amendments which they thought had been secured. As such amendments have not yet been incorporated into the Bill, their terms are not reflected in these Notes.
OVERVIEW OF THE STRUCTURE
9. The Bill comprises fifty-nine clauses and fourteen Schedules. The main provisions of the Bill provide for:
- the authorisation of works necessary to build Crossrail and associated works. These powers are vested in "the nominated undertaker" and the Bill gives the Secretary of State the ability to nominate that undertaker. Although the Department for Transport is currently being assisted in taking the project forward by Cross London Rail Links Limited (CLRL) - a Department for Transport/Transport for London joint venture company - final decisions about project delivery have not yet been taken and so flexibility is required;
- the acquisition of land and interests in land necessary for those works. The powers of compulsory purchase sought in the Bill are vested in the Secretary of State but could also be transferred to the Greater London Authority or Transport for London, again to provide flexibility in implementation. The compulsory purchase powers in the Bill would expire five years after Royal Assent, though they could be extended;
- the establishment of a planning and heritage regime for the works. The former seeks to give local planning authorities and the various statutory bodies an appropriate degree of control over the planning aspects of the project (and will be augmented by other arrangements, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). Heritage issues will also be the subject of separate agreements with English Heritage and the local authorities;
- the application of existing railway and other miscellaneous legislation to Crossrail. Chief amongst these are the provisions which seek to establish the railways regulatory regime which will apply to Crossrail and its interface with the existing network;
- the transfer by transfer scheme of property, rights and liabilities from CLRL or the Secretary of State, or their wholly-owned subsidiaries, or, with their consent, the GLA, TfL, the London Development Agency or any of their subsidiaries, that may be necessary to ensure that the nominated undertaker is capable of delivering the project; and
- the devolution of control of the Crossrail project to the Greater London Authority or Transport for London (or a combination of the two).
10. The provisions of the Bill and the legislative framework that it seeks to establish are similar to those in the Channel Tunnel Rail Link Act 1996 ("the 1996 Act"), the last Hybrid Bill for a railway project. This is because the 1996 Act has been put to the test and by and large has worked well (although some changes from the 1996 Act framework have been made, either as a result of the particular requirements of Crossrail or following experience in implementing the 1996 Act).
11. A copy of the 1996 Act can be found at http://www.hmso.gov.uk/acts/acts1996/1996061.htm.
COMMENTARY ON CLAUSES AND SCHEDULES
Works
Clause 1: Construction and maintenance of scheduled works
12. Clause 1(1) authorises the nominated undertaker to construct and maintain the works necessary for Crossrail. The principal works necessary - the so called "scheduled works" - are listed in Schedule 1 and are also shown on the plans and sections deposited with the Bill.
13. Clause 1(2) requires, subject to clause 1(3), the scheduled works to be constructed in the lines or situations, and on the levels, shown on the deposited plans and sections. The plans and sections therefore give an indication of where the works will be constructed. Also, if, in the case of a station, depot or shaft, the deposited sections show an upper limit, the relevant works must be constructed within that limit.
14. Clause 1(3) allows the nominated undertaker to construct or maintain a scheduled work in a different lateral position from that shown on the plans, as long as it is within the area shown for the work on the plans (the "limit of deviation" for the work). The nominated undertaker may also construct or maintain the scheduled works at a different vertical level from that shown on the sections, as long as it is no more than three metres higher than the level shown on the sections. This flexibility is customary in Bills for railway projects and reflects the fact that some movement may be necessary, for example to avoid hidden obstacles that are only discovered once construction is underway.
15. Clause 1(4) provides that where an upper limit for a station, depot or shaft is shown on the deposited sections, the power to deviate is subject to that upper limit.
Clause 2: Works: further and supplementary provisions
16. Clause 2 brings into effect Schedule 2, which contains additional provisions about the works which may be carried out, primarily to facilitate the main effort of construction of the scheduled works.
Clause 3: Highways
17. Clause 3 brings into effect Schedule 3, which contains provisions dealing with the highway works necessary for Crossrail.
Clause 4: Overhead lines
18. Clause 4(1) disapplies the normal consents regime established under the Electricity Act 1989 ("the 1989 Act") for the installation of overhead electric lines on land that is within the limits of deviation for the scheduled works or the land required for Crossrail (the "limit of land to be acquired or used"). The limits of deviation and the limit of land to be acquired or used taken together are referred to in these Explanatory Notes as "the Bill limits".
19. Clause 4(2) brings into effect Schedule 4, which establishes a replacement consents regime for such lines.
20. Clause 4(3) provides that once the consent granted under Schedule 4 is revoked or expires, the line to which it relates will revert to being subject to the 1989 Act.
21. Clause 4(4) provides that any consent granted under Schedule 4 by the Secretary of State for Transport and the Secretary of State for Trade and Industry, acting jointly, may include the grant of deemed planning permission, with or without conditions.
Land
Clause 5: Temporary possession and use
22. Clause 5 brings into effect Schedule 5, which contains provisions dealing with the temporary possession and use of land required for Crossrail.
Clause 6: Acquisition of land within limits shown on deposited plans
23. Clause 6(1) authorises the Secretary of State, rather than the nominated undertaker, to acquire compulsorily the land required for Crossrail within the Bill limits.
24. Clause 6(2) provides that, without prejudice to the general power granted by clause 6(1), the land identified in columns (1) and (2) of the table in Part 1 of Schedule 6 may be acquired or used for the purpose set out in column (3) of the table. This table therefore gives an indication of the purposes for which certain parcels of land may be acquired or used (for example, for utility diversions, means of access, or for a worksite).
25. Clause 6(3) brings into effect Parts 2 and 3 of Schedule 6, which deal with the application of legislation relating to compulsory purchase and supplementary provisions.
26. Clause 6(4) provides that the power granted by subsection (1) shall not apply to land if the surface of the land is comprised in a highway and the land is specified in the table in paragraph 15(2) of Schedule 3.
27. Clause 6(5) provides that the power granted by subsection (1) shall not apply to any land shown as being required temporarily, unless the land is also specified in the table in paragraph 11(1) of Schedule 6. In that case the power does extend to the acquisition of subsoil at a depth greater than 9 metres from the surface of such land.
28. Clause 6(6) provides that the compulsory purchase power granted by subsection (1) shall expire 5 years after the Bill secures Royal Assent.
29. Clause 6(7) allows the Secretary of State, by order, to extend the time limit in subsection (6). Any such order is subject to special parliamentary procedure.
Clause 7: Acquisition of land not subject to the power under section 6(1)
30. Clause 7(1) allows the Secretary of State to acquire compulsorily land outside the Bill limits, if it is needed in connection with Crossrail.
31. Clause 7(2) and (3) enable the Secretary of State to acquire land within the Bill limits, if it is needed in connection with Crossrail, but restrict the power so that it only applies where the power under clause 6(1) does not. The difference between the two powers is that the former requires the making of a compulsory purchase order, whereas the latter does not (see paragraph 2 of Schedule 6).
32. Clause 7(4) makes it clear that land may be acquired under these provisions for certain purposes, such as for the relocation of drainage or utility undertakers' apparatus, which can sometimes be needed some distance from the line of the railway itself, or for land statutorily required to be provided in exchange for land taken.
33. Clause 7(5) allows the Secretary of State to acquire an easement or other new right over the land in question, as opposed to acquiring the land itself.
34. Clause 7(6) provides that any acquisition under the clause would be subject to normal compulsory purchase procedures under the Acquisition of Land Act 1981.
35. Clause 7(7) provides that the same modifications of the compulsory purchase legislation apply in relation to the acquisition of easements under subsection (5) as apply in relation to the acquisition of easements under clause 6(1).
Clause 8: Extinguishment of private rights of way
36. Clause 8(1) and (2) provide for any private rights of way over land within the Bill limits held by the Secretary of State for the purposes of the Crossrail works to be extinguished.
37. Clause 8(3) sets out certain rights of way that are not to be extinguished.
38. Clause 8(4) enables the Secretary of State to direct that any other particular right of way is to be excepted from extinguishment under the clause.
39. Clause 8(5) and (6) provide for the private rights of way to be extinguished at the time of acquisition, in respect of some land, and at the time of entry onto the land, in the case of other land.
40. Clause 8(7) and (8) provide that compensation may be payable to anyone who suffers loss as a result of any such extinguishment, with any disputes about such compensation to be determined under the Land Compensation Act 1961 ("the 1961 Act").
Clause 9: Extinguishment of rights of statutory undertakers etc.
41. Clause 9(1) provides for the rights of statutory undertakers over land held by the Secretary of State for the purposes of the Crossrail works to be extinguished as if it had been acquired under Part 9 of the Town and Country Planning Act 1990 ("the 1990 Act").
42. Clause 9(2) to (5) amend the application of the 1990 Act. This is primarily necessary because the compulsory purchase powers in the Bill are vested in the Secretary of State, not the nominated undertaker, and so the nominated undertaker will not have been the acquiring authority.
Planning
Clause 10: Planning: general
43. Clause 10(1) provides for deemed planning permission under Part 3 of the Town and Country Planning Act 1990, to be granted for the development authorised by the Bill, subject to subsection (2).
44. Clause 10(2), (3) and (8) provides that the deemed planning permission only applies to development comprising a specified work listed in Schedule 1 to the Bill (a "scheduled work") or, in the case of other ancillary development not comprising a scheduled work which is likely to have a significant effect on the environment or otherwise requires environmental assessment, if the ancillary development has been environmentally assessed in the environmental statement deposited with the Bill.
45. Clause 10(4) provides that where an application for planning permission is made to the local planning authority in respect of development excluded from the deemed planning permission conferred by clause 10(1) by virtue of clause (2), (3) and (8), the requirements for environmental assessment are to apply to the application even if the area of the development does not exceed the thresholds provided for in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
46. Clause 10(5) brings into effect Schedule 7. Schedule 7 establishes a planning regime that seeks to give local planning authorities an appropriate degree of control over the detailed planning aspects of Crossrail (and will be augmented by other arrangements outside the Bill, such as a Planning Memorandum and a Construction Code of Practice, designed to sit alongside the legislative provisions). These provisions, and the accompanying documents, are based on the framework established for the Channel Tunnel Rail Link.
Clause 11: Permitted development: time limit
47. Clause 11(1) provides that, for scheduled works, the deemed planning permission granted by clause 11 applies only to works begun within ten years of Royal Assent.
48. Clause 11(2) allows the Secretary of State to extend this time limit by means of an order.
49. Clause 11(3) provides for such an order to be subject to the negative resolution procedure.
50. Clause 11(4) disapplies section 91 of the Town and Country Planning Act 1990, which sets out the duration of normal planning permission, in respect of the planning permission granted by subsection (1).
Clause 12: Fees for planning applications
51. Clause 12(1) allows the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to issue regulations about the fees to be charged by local planning authorities for the requests for approval of details under Schedule 7 of the Bill to be submitted for Crossrail.
52. Clause 12(2) and (3) set out what those regulations may cover.
53. Clause 12(4) provides for the regulations to be issued in the form of a statutory instrument subject to negative resolution procedure.
54. Clause 12(5) disapplies any regulations issued under section 303 of the Town and Country Planning Act 1990, which set out the fees normally charged for planning applications, in respect of any planning application submitted pursuant to clause 10(1). This is necessary because the regulations issued under subsection (1) will cover requests for approval of details under Schedule 7 of the Bill.
Clause 13: Power to disapply section 10(1)
55. Clause 13(1) allows the Secretary of State, by means of an order, to disapply the deemed planning permission granted by clause 10(1) in respect of development consisting of operations for the maintenance or alteration of the Crossrail works, from the date specified in the order. In essence, this provision allows the Secretary of State to switch off the deemed planning permission granted by the Bill in respect of future Crossrail works, should he decide to do so (this is most likely to be used in the case of the electrification and signalling work done on sections of the existing railway network, and would ensure that a single planning regime covered works in relation to existing track after the Crossrail construction phase has been completed).
56. Clause 13(2) provides that, in the event of such a disapplication, any such development would be subject to the normal provisions of the Town and Country Planning (General Permitted Development) Order 1995 applying to development authorised by a local Act.
57. Clause 13(3), (4) and (5) provide for the order to make different provisions in different cases, and for it to be issued by means of a statutory instrument.
Clause 14: EIA regulations: replacement development
58. Clause 14(1), (2) and (3) provide that where a building is demolished or substantially demolished for the purposes of the Crossrail works, any later planning application for its replacement (for example, for building over a Crossrail station) must be accompanied by an environmental assessment if the building demolished or substantially demolished is listed in the table in the clause or it is not so listed but the provision of the replacement would be likely to have significant effects on the environment. This provision is intended to ensure that all the direct and indirect environmental effects of the development authorised by the Bill are properly assessed at the appropriate stage.
Heritage
Clause 15: Disapplication and modification of controls
59. Clause 15 brings into effect Schedule 8, which contains provisions dealing with the heritage aspects of Crossrail.
Clause 16: Rights of entry
60. Clause 16 brings into effect Schedule 9, which contains provisions dealing with the rights of entry granted to the Historic Buildings and Monuments Commission for England, or English Heritage as it is more commonly known.
Trees
Clause 17: Power to deal with trees on neighbouring land
61. Clause 17(1) allows the nominated undertaker, by notice, to require the occupier of land on which a tree is situated which overhangs the Crossrail works to remove, top or lop that tree where is it necessary to allow the Crossrail works to be maintained, or for the safe operation of Crossrail.
62. Clause 17(2) and (3) allow the occupier of the land to serve a counter-notice objecting within 28 days, in which case the matter is referred to the County Court to determine whether the notice should be confirmed.
63. Clause 17(4), (5) and (6) allow the nominated undertaker, in default of a notice being complied with, to do himself the things required to be done by the notice, subject to doing any topping or lopping work in a husband-like manner and in such a way as to cause the minimum of damage to the tree.
64. Clause 17(7) allows the occupier of the land on which the tree concerned is growing to apply to the County Court for compensation for loss or damage suffered, or for any expenses in complying with the notice.
Clause 18: Disapplication of controls
65. Clause 18(1) and (2) disapply tree preservation orders made under section 198(1) of the Town and Country Planning Act 1990 and the provisions of section 211 of the Act, dealing with trees in conservation areas, from any tree works that are carried out under clause 17, or as a consequence of the construction or maintenance of Crossrail works, or to enable the safe operation of Crossrail.
Noise
Clause 19: Control of construction sites: appeals
66. Clause 19(1), (2) and (3) modify the operation of sections 60 and 61 of the Control of Pollution Act 1974, so that appeals under those provisions are determined by the Secretary of State or if the parties' agree by arbitration, rather than by a magistrates' court.
67. Clause 19(4) enables the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to make regulations about procedure in relation to such arbitrations. Such regulations would be made by statutory instrument.
Clause 20: Proceedings in respect of statutory nuisance: defence
68. Clause 20 provides that an order under section 82(2) of the Environmental Protection Act 1990 may not be made by a magistrates' court in connection with noise emitted from premises, or from a vehicle, machinery and equipment in a street, where the nominated undertaker can show that they are used for Crossrail purposes and the Crossrail works concerned are being carried out in accordance with a notice or consent issued by the local authority under section 60, 61 or 65 of the Control of Pollution Act 1974. These provisions of the 1974 Act address control of noise on construction sites (section 60), consent for work on construction sites (section 61) and consent to exceed noise limits (section 65).
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