Examination of Witnesses (Questions 4840
- 4859)
4840. Works are going to be going on on the
site adjacent, are they not, in and around 127 for one to three
years possibly?
(Mr Thornley-Taylor) There are various different
variations, yes.
4841. The Committee will know. One to three
years next to my client's sensitive site; no assessment has been
carried out in respect of that construction noise; no evidence
presented either in the Environmental Statement or to this Committee
as to the likely level of noise, and you are saying to the Committee,
as I understand it, "Trust us, we will carry out the noise
assessment later".
(Mr Thornley-Taylor) It is a little bit more
than saying: "Trust us". There is a formal procedure
which I have explained to the Committee when we were hearing previous
Petitions very nearby.
4842. The problem is, Mr Thornley-Taylor, when
the assessment is carried out to find out the noise climate, it
is then one needs to address whether there is sufficient protection.
One can only address whether the protections being offered with
its various caveats is sufficient or not if one knows the level
of noise that is needed to be treated. First you have to make
the assessment and then you have to look at what is needed to
deal with it.
(Mr Thornley-Taylor) No, the critical thing
is to know the use of the building. The present day use of 127
Charing Cross Road is not the same as it would be assessed in
the future after the studio has moved from 12 Goslett Yard.
4843. It is too late then, is it not, so far
as my client is concerned, as to any protection they may be given
in this Committee by terms of an amendment of this Bill, because
the matter will have already been passed and the assessment comes
up afterwards?
(Mr Thornley-Taylor) It is very opportune that
it will be possible in re-siting the studio at 127 Charing Cross
Road to take the measures which I described earlier which will
be proof against construction noise as they will against traffic
noise and other noise intrusion. I do not see it as a major problem.
It is not technically difficult and it is not administratively
difficult, as far as I can see.
4844. You do not see it as a problem but there
is nothing I can say that will change your mind. That is why we
are on different sides of the room. I am going to be suggesting
that this approach is flawed because we have a circumstance in
this case where we know (there is no suggestion otherwise) that
should this go ahead we are relocating to that site (there is
no suggestion otherwise) and it should have been treated in noise
assessment in the same way that you treat and have treated other
existing special cases, and you carry out a noise assessment now.
(Mr Thornley-Taylor) We have not assessed buildings
on the basis of what might happen in the future, which might affect
their sensitivity.
4845. I think we can see the difference between
us on approach on that. I think there is very little difference
between us on the external monitoring of construction works for
a noise level, for example, from the boundary or the facing wall
of 127 Charing Cross can be done. The issue that you take is whether
there should be any internal noise control.
(Mr Thornley-Taylor) I am certainly recommending
against any commitment for control of construction noise by putting
internal noise limits in.
4846. You mentioned in evidence—and I
wondered if you can help clarify for my note and, perhaps, the
Committee—in answer to Mr Taylor's point that you recommended
against it, but you are aware of very special circumstances where
that type of monitoring does take place or has taken place. I
just wonder if you could give us some examples to which you referred.
(Mr Thornley-Taylor) I said that to make sure
I did not say anything untrue, but I cannot actually think of
any examples.
4847. So you said you were aware but you were
not actually. In terms of the noise limits in terms of securing
the recording studio, first of all, if there was an internal noise
level that had to be achieved by the person carrying out the construction
works, if the noise was actually being caused by another source
as you rightly said they would not be held responsible and they
would not be in breach of their undertaking, would they?
(Mr Thornley-Taylor) Correct.
4848. So the point that you raise, that there
is a problem with the internal noise because it may be EMI making
a lot of noise, would not be a problem because it would be attributable
to the EMI person and not the construction person. They had not
caused noise which breached the code.
(Mr Thornley-Taylor) It would be a problem
because the attribution would be impossible to achieve.
4849. It is not impossible to achieve in noise
terms because you can identify particular noise characteristics
and types of noise. So, for example, if it was a noise caused
by someone talking you can attribute that, can you not, by noise
readings or you can put in spikes? You can tell that is a different
noise to construction work.
(Mr Thornley-Taylor) Of the many types of noise
sources occurring in all rooms I cannot confirm that it is not
possible beyond doubt to attribute events to external construction
activities and be absolutely sure they are not from internal activities.
A lot of time will be spent in tribunals of one kind or another
trying to prove something did or did not exist instead of following
the normal and very successful procedure of controlling construction
noise by outside measures.
4850. In terms of the obligations that are being
offered, first of all let us deal with the free-standing obligation
"as far as reasonably practicable" to limit noise. Again,
that obligation does not have a target, does it? You are familiar
with CoPA, the Control of Pollution Act?
(Mr Thornley-Taylor) I participated in the
drafting of the Control of Pollution Act.
4851. That sets out a series of consents which
very often sets noise limits. Does it not?
(Mr Thornley-Taylor) Yes.
4852. Then the concept of, for example, best
practicable means or doing everything reasonably practicable is
effectively a defence to any breach of a consent. Is it not? That
is how the system operates.
(Mr Thornley-Taylor) No, it is not. The way
the system operates is that the contractor makes an application
for a consent and if the consent is refused or conditions are
applied against which the contractor wishes to appeal, then clearly
set out grounds of appeal is the best practicable means being
used. If the contractor, having received a consent, with or without
conditions, breaches it he is guilty of an offence and it is not
a defence then to say: "I may have breached this notice but
I used the best practicable means". That opportunity has
passed.
4853. The opportunity comes earlier in the consent
procedure, but best practicable means, that is not exceeding excessive
costs, is it not? There is a costs consideration that is taken
into account.
(Mr Thornley-Taylor) It is set out in Section
72 of the Control of Pollution Act. Costs is one consideration—
4854. There are a number of factors that are
taken into account that qualify that obligation. What other factors
are taken into account?
(Mr Thornley-Taylor) The engineering considerations
are one of them. It is a balance between what is achievable and
what is reasonable and at a reasonable cost. If it is helpful
we can provide the full wording of Section 72.
4855. There is a difference, is there not, between
an obligation to do best practicable means or "reasonably
practicable" and an obligation to use your best endeavours
rather than "reasonably practicable" as defined under
the Act with its qualifications.
(Mr Thornley-Taylor) I will answer the question,
sir, but I think it is really one for a lawyer. I do know that
if you delete the word "reasonable" then certainly you
would be requiring people to do things which might be at unreasonable
cost.
4856. The question, therefore, arises, at the
end, does it not, Mr Thornley-Taylor, if we look at the construction
noise level, whatever noise level comes about, we do not know
what that is going to be at present in terms of 127 Charing Cross
Road but, in any event, how easy do you think it will be, for
example, for EMI when construction noise is taking place to be
able to form a view? EMI will not be able to take any action,
will they, if they consider that the undertaker is not acting
reasonably and practicably in carrying out his works? There is
nothing EMI can do about it.
(Mr Thornley-Taylor) The duty to enforce a
breach of a Section 61 consent would lie with the local authority.
If they failed to carry out their statutory duty (which we assume
they will not because this is a responsible local authority) then
EMI could take action through the courts to force them to do so.
4857. I do not want to get you into the law,
but is it your understanding that there would be a duty to prosecute
rather than a discretion?
(Mr Thornley-Taylor) If breach of a Section
61 consent takes place an offence has been committed, and the
contractor—
4858. It is a discretion for the local authority,
is it not? It is not a duty to prosecute.
(Mr Thornley-Taylor) When an offence has been
committed there is no discretion.
4859. It is a matter of law and I will make
submissions on that. That happens to be a misunderstanding on
your part, Mr Thornley-Taylor, but that is your understanding
and I will make submissions on it. Can we then turn to the question
of what noise limit would be acceptable? Have you formed any view,
having heard the evidence today—and I know it has been considered
before—as to what noise level of construction works this
Committee should consider is acceptable to be experienced, even
measured externally, at 127 Charing Cross Road when it is operated
as a recording studio? Have you formed a view as to what that
level should be?
(Mr Thornley-Taylor) We cannot
form that view because we do not have the design for the new studio.
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