Part 5 - Protection of British Waterways Board

346.     Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker (or the Secretary of State, in relation to those provisions concerning the Secretary of State's powers under the Bill to acquire land) and the British Waterways Board ("the Board") agree to vary them. The Board is a public corporation established under the Transport Act 1962 which owns and manages a network of waterways, comprising canal and river navigations, reservoirs and docks. A number of its waterways may be affected by the powers of the Bill, including in particular, the river Lea, the Grand Union and Regents Canals and the West India Dock. These arrangements apply to "canals" which means any canal or inland navigation owned or managed by the Board, including land held or used for the canal (such as towing paths). The nominated undertaker's works to which the provisions apply are any "specified works" defined as works in, across, under or within 15 metres of, or which may affect, any canal.

347.     Paragraph 2 makes clear that in relation to land of the Board, the compulsory powers of the Secretary of State to acquire land will be limited to "what is reasonably necessary for, or in connection with, the construction, maintenance or operation of the works" authorised by the Bill.

348.     Paragraph 3 provides for the Board to approve plans of the specified works and in approving plans to be able to make reasonable requirements in relation to its canals. Such approval is not to be unreasonably withheld.

349.     Paragraph 4 deals with the construction of the specified works (and any protective works). It provides in particular for these to be constructed to the Board's reasonable satisfaction and with minimum disruption to traffic on the canals, for the Board to have advance notice of commencement of construction and the right to inspect the construction work.

350.     Paragraphs 5 and 6 deal with deposits of materials on, in or over canals and discharge of water into canals. These operations will require the Board's consent (which is not to be unreasonably withheld). The exercise of the powers of paragraph 8 of Schedule 2 to the Bill to discharge water into watercourses is made subject, in relation to canals, to the terms of any consent given under these provisions.

351.     Paragraph 7 provides protection for access to or along towing paths. If this is temporarily obstructed and there is no alternative means of access, the nominated undertaker is required (so far as is reasonably practicable) to provide a substitute. These requirements are in addition to the obligation in paragraph 5(2) and (5) of Schedule 3 to ensure reasonable pedestrian access to premises adjoining a highway which has been temporarily stopped up and to obtain the consent of the highway authority for such closures.

352.     Paragraph 8 contains a general indemnity for the Board in respect of claims against it arising from damage to canals covered by the works and for the costs of making good such damage.

353.     Paragraph 10 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the appropriate Ministers who must have regard to any matters specified by the appropriate Ministers on making the appointment. The appropriate Ministers for this purpose are the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs acting jointly. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the appropriate Ministers to be involved in the resolution of such disputes.

Part 6 - Protection of Port of London Authority

354.     Paragraph 1 provides that the arrangements set out in this Part of the Schedule are to apply unless the nominated undertaker and the Port of London Authority ("the PLA") agree to vary them. The PLA is the statutory harbour authority for the Port of London under the Port of London Act 1968. The nominated undertaker's works to which the provisions apply are any "specified works" defined as works on, in, under or over the surface of land below the river (defined as the level of mean high water springs forming part of waters within the PLA's jurisdiction) or any land owned, occupied or used by the PLA for operational purposes.

355.     Paragraph 2 provides for the PLA to approve plans of the specified works, and in approving the plans to be able to make reasonable requirements in relation to the protection of the river or the use of its operational land for the purpose of performing its statutory functions. PLA's approval is not to be unreasonably withheld, and the paragraph also makes clear that the requirement for approval of plans does not reintroduce the controls under Part 5 of the Port of London Act 1968 (relating to works and dredging in the Thames) which are disapplied by Schedule 12 to the Bill.

356.     Paragraph 3 deals with the construction of the specified works. It provides in particular for these to be constructed with all reasonable dispatch and to the PLA's reasonable satisfaction and with minimum interference to river traffic and the PLA's statutory functions. The PLA is entitled, on notice to the nominated undertaker, to inspect the construction of the specified works.

357.     Paragraph 4 deals with the deposit of gravel, soil or other material into the river, including allowing any such material to fall, or be washed into the river. Any such deposit will require the PLA's consent (which is not to be unreasonably withheld). The exercise of the powers of paragraph 8 of Schedule 2 to the Bill to discharge water into watercourses is made subject, in relation to the river, to the terms of any consent given under these provisions. This paragraph also spells out that it is not to be taken as authorising anything which would be an offence under the legislation dealing with the pollution of water.

358.     Paragraphs 5, 6 and 7 contain miscellaneous protection in relation to construction of the specified works including requirements for removing obstructions to navigation which are exposed in the course of the works, provision for reimbursement of costs incurred by the PLA in addressing impacts on existing moorings and a requirement to provide lights or buoys or take other steps as may be required by the PLA for the prevention of danger to navigation.

359.     Paragraph 8 is intended to secure navigational safety in a case where a specified work is abandoned or falls into disrepair. The PLA is entitled to require the nominated undertaker to remove the work, or repair it, and restore the site to its former condition.

360.     Paragraph 9 applies the prohibition in paragraph 8(4) of Schedule 2 against the damage of the bed or banks of watercourses forming parts of a main river to any discharge of any water in connection with a specified work and affecting part of the river that is not a main river.

361.     Paragraph 10 addresses disputes arising under this Part. Matters affecting the amount of compensation payable are referred to arbitration (which would then be governed by the provisions of clause 56 of the Bill). In any other case, unless the parties agree to arbitration, the dispute is determined by a person appointed by the Secretary of State who must have regard to any matters specified by the Secretary of State on making the appointment. The reason for this distinction is that it is considered that disputes as to compensation will not relate to matters of policy and there is no need for the Secretary of State to be involved in the resolution of such disputes.

PUBLIC SECTOR FINANCIAL COST AND PUBLIC SECTOR MANPOWER IMPLICATIONS

362.     The Government has made it clear that the funding package for Crossrail will include an element of Government funding, but it is not possible to quantify now the precise level of support likely to be required. Crossrail is a scheme of importance to London, and its contribution to the national economy will be reflected in Government support. But the Government has also made it clear that the Exchequer cannot be the only funder. The principal beneficiary of Crossrail will be London and the funding package will also need to include a substantial London contribution, including from the London business community.

363.      Sir Michael Lyons is currently reviewing the local government finance system and is due to report to Ministers before Christmas 2006. The Government's 2007 spending review, and its ultimate decisions on the appropriate balance of funding for Crossrail as between national and London taxpayers, will be taken in the light of Sir Michael's conclusions.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

364.     The section above (public sector financial cost and public sector manpower implications) details the effects of the Bill on the public sector.

365.     The Regulatory Impact Assessment demonstrates that the costs to business and the regulatory impact of the Bill will be low. Where impacts are expected to occur, they will be mitigated by appropriate measures and compensation.

366.     The full RIA can be obtained from Danny Jowers, Zone 2/08, Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR, or from daniel.jowers@dft.gsi.gov.uk.

EUROPEAN CONVENTION ON HUMAN RIGHTS

367.     The Secretary of State has made a statement that in his view the Crossrail Bill is compatible with the Convention Rights. The following rights are considered to be particularly engaged in relation to the Bill, although careful consideration has been given to all aspects of human rights in relation to these proposals.

368.     As a Hybrid Bill, the Bill necessarily involves interference with the property rights and, potentially, the home and other rights of individuals. The potential for such effects particularly engages Article 1 of Protocol 1 (the right to peaceful enjoyment of possessions), article 8 (the right to respect for private and family life) and, to the extent that any places of assembly or used for religious purposes are affected, article 9 (the right to freedom of thought, conscience and religion). Mitigation of the impact of such interference is provided by the compensation arrangements provided both under the Bill and also by a range of policies that the Secretary of State is adopting in relation to the scheme, including policies relating to hardship, land acquisition, business relocation and to noise and vibration impacts of the scheme. Taking into account the public and other benefits that will arise from the Crossrail development and the mitigation provided by the arrangements that have been provided, the Secretary of State is of the view that a fair balance has been struck and that any remaining impact on property and other rights is proportionate and can be and, in all the circumstances, is justified in this case.

369.     The Bill contains provisions that provide for the determination of disputes by arbitration and, in some cases, permitting the Secretary of State to give directions in relation to matters under consideration. In the light of the applicability of standard procedures for arbitration and the availability of judicial review in relation to any decisions of the Secretary of State (or the Greater London Authority or Transport for London, should control of the project be devolved) the Secretary of State is of the view that the Bill is compliant with the requirements of Article 6 (the right to a fair trial).

TERRITORIAL EXTENT

370.     The Bill, like the 1996 Act (and other Hybrid Bills), does not expressly limit the Bill's territorial extent. The land and works provisions are by nature local. The provisions under the heading "Railway matters", on the other hand, relate to matters which are the subject of a common regime under the law of England and Wales and Scotland and will extend accordingly.

COMMENCEMENT

371.     The provisions of the Bill will come into force on Royal Assent.

Department for Transport

November 2006