Examination of Witnesses (Questions 4900
- 4913)
4900. Mr Binley: Can I just ask, on a
slightly separate issue, whether you know whether Liberty Asset
Management Limited or City Parochial Foundation Trustees will
be appearing today?
4901. Mr Elvin: Our best information
is that they will not be appearing. We have not heard from Liberty
one way or the other, I gather from Mr Walker. They are in receipt
of a draft and we were told that they were favourably considering
it, but we have not received any confirmation either of acceptance
or withdrawal of the Petition, or indeed if they will turn up.
4902. Mr Binley: Mr Jones, before I call
you to make your final submission, can I ask how long you intend
to take?
4903. Mr Jones: Sir, I hope to be between
five and ten minutes.
4904. Mr Binley: Let me converse with
the Committee. The Committee will be happy to extend the time
beyond one o'clock in order to complete that task, and we will
then have to proceed with the other matters as we see fit at that
time.
4905. Mr Jones: I am very grateful, sir.
Can I deal with compensation first? It is really a simple issue;
it is whether this Committee, exercising its powers in respect
of what I will be submitting is fairness and commonsense, in the
special circumstances of this case, will recommend an exception
to the normal procedure that would operate under the statutory
Compensation Code. The question really comes down to, who fairly
in this particular case should bear the burden? Should it be the
Promoter bearing the burden of risk or should it be EMI? That
is really the question. Mr Elvin says, unfortunate as it is, terribly
sorry, but EMI must bear the burden of taking the risks on any
relocation. We say that that is unfair, and that this is an unusual
case.
4906. In terms of the money that we have already
expended, that is something that was not our fault, and I do have
to suggest, with all respect to my learned friend's forensic cross-examination
of my witness, that it is simply unreasonable for Crossrail to
suggest that our client should somehow have ferreted out, at a
time when even those instructing my learned friend did not know
what land was going to be required for the Crossrail, anything
more. You may feel—and I will be suggesting to you—that
EMI, through Mr Tilley, took extraordinary steps to keep abreast
of the position, and was actually was told that he could not,
until he received that letter, know whether any and which of the
properties might be CPO'd. In that case—and it is an exceptional
case—the burden, in my respectful submission, should fall
on the Promoters, otherwise it would lead to the situation where
those instructing me would actually be encouraged to go ahead
with the scheme which in any sense should not really proceed when
there is a threat of a CPO.
4907. The next question of where the burden
should fall is on relocation. Sir, I do ask you and your colleagues
to note the heavy reliance that is now placed by Crossrail, through
Mr Taylor and also through Mr Elvin, about the steps that my client
should take in reconfiguring 127 Charing Cross. That has been
put forward as a panacea to all the holes in the assessment procedure
that we have found in terms of noise. This is an exceptional case,
for this reason: 127 is to be a sensitive location. Ordinarily
the Promoters will have assessed it and given it special treatment,
if it was existing. The reason it has not had that treatment is
because it is said to be a future occupation. Given that there
is no doubt about its future occupation and no doubt has been
raised by the Promoters about it, this is an exceptional case
where the Promoters could be expected to agree, first of all,
the reasonable costs in relocation before the service of the CPO
notice, and undertake to pay them, or at the very least to agree
to what are the reasonable relocation costs. Mr Elvin, beguiling
as he may be, is saying, "I am sure this will all work out."
I suggest that you only have to see Mr Elvin's cross-examination
of my witness on the forensic level of detail as to what notice
he should have read or should not have read, will see that there
is a recipe for disaster if the particular relocation of this
sensitive site is not agreed beforehand. There is nothing to stop
the Promoters giving an undertaking that they will use their best
endeavours to agree the type of relocation that is acceptable
that we can claim. We do not want to have the risk of going ahead
with something only to find that we are told we have gone beyond
what is reasonable and we have "gold plated" it, to
use Mr Elvin's words. So we say that we should get compensation
upfront but if we are not to get that we should at least have
the comfort of knowing what is going to be compensated for.
4908. The last thing I would say is this: that
becomes even more pressing if the Promoters are not prepared to
give more than three months' undertaking. We see no clear, cogent
case as to why they cannot give a 12-month or an 18-month notice
to us. It has just been referred to that things are all floating
in the air, at the moment. Or terms to that effect. A longer notice
period would at least give an opportunity for the burden to be
shifted away from my clients.
4909. Finally, I would say it is simply unfair
to expect (this is on compensation) them to bear a burden of financial
costs in order to secure their recording position within the centre
of London, and that they have to take the risk because not enough
notice is going to be given to them. Finally, on noise, I just
say this: I have already hinted that the big problem—and
I repeat what I set out in my opening note without repeating it,
you will be pleased to know—is that the Environmental Statement
is inadequate. It is supposed to be looking forward, it is the
likely significant environmental impact. We have a noise-sensitive
location that was not assessed because a mistake was made only
to assess existing locations. So that is a flaw and that makes
this procedure unlawful.
4910. However, it is more important than that.
This Committee does not have the necessary evidence as to what
the noise level and noise climate will be. When we look at the
Environmental Statement that was taken in re-examination by my
learned friend (it is 8.7.147)[21]
it is dealing with those buildings that were assessed. 127 Charing
Cross Road is not included within it and I draw your attention
to the last words, the caveat: "It is likely that noise insulation
will be sufficient to mitigate the noise impact of surface construction
in most cases but not all." Even in those that they have
assessed, not all of them will be mitigated sufficiently, and
our one has not even been assessed. We do ask that best endeavours
must be an overall requirement rather than best practicable means—it
is not asking for something that is unreasonable; it is something
that it is in contractual terms up and down the country. If the
courts thought it was unreasonable I would be struck out as an
unreasonable term. We ask for special treatment but we do consider
we are special—humbly. I have nothing further to add, unless
there is anything?
4911. Mr Binley: Thank you, Mr Jones.
Are there any questions for Mr Jones? Thank you very much. Can
I say that I assume that we still have Liberty Asset Management
Limited and City Parochial Foundation Trustee?
4912. Mr Elvin: We think City Parochial
have withdrawn, in fact.
4913. Mr Binley: We are told that they
might be in the process of resolving, and it seems to me that
we cannot therefore continue. I shall therefore make the point
that the Committee will stand adjourned until Thursday 23 March
at 10.00 am.
21 Crossrail Environmental Statement Volume 2; page
171; section 8.7.147 (LINEWD-ES10-147). Back
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