Examination of Witnesses (Questions 6260
- 6279)
6260. I should also mention in passing the other
documents that we have tabled before the Committee.[14]
These are three letters that we wrote to Crossrail before submitting
our Petition. I do not intend to refer to them specifically, but
the reason we wanted to make them available to you is because
you may have noticed that Crossrail included their letters to
us in Appendix C of their Response Document and we thought it
unhelpful for the Committee only to have one side of that particular
story before them.
6261. Turning to what we see as the key issue,
it is: what rights of redress will we have if the noise threshold
is exceeded? The Environmental Statement sets out that the level
that Crossrail has adopted as the threshold of significance for
groundborne noise in residential properties is 40dBLAmaxS and
it says that this will be adopted as the performance specification
for the railway. The Environmental Statement assessment is based
on a set of assumptions that various mitigation measures will
be taken. We were told at paragraph 9 on page 37 of our Response
Document that the nominated undertaker will be required to design
a permanent track support system so that the level of noise does
not in all reasonably foreseeable circumstances exceed the significance
criterion.[15]
6262. So far, that all sounds good, but what
causes us difficulty is the following: that various Crossrail
papers, including the Promoter's Response Document, make it absolutely
clear that the adoption of mitigation measures is only likely
to result with the criterion for the performance specification
not being breached, and there is no guarantee, and that is found
at paragraph 11 on page 7 of our Response Document.
6263. The question that arises is: what rights
do we have if, once the railway is up and running, it turns out
that the noise level in our properties exceeds 40? It seems to
us that that could happen as a result of one or two things: firstly,
that the noise levels might exceed 40 because the mitigation measures
are not taken or fully complied with; and, secondly, it might
happen even where they are taken, but, once the train operation
commences, they prove to be not enough to bring the noise in the
tunnels down below 40.
6264. In the first situation where mitigation
measures are not taken, Crossrail have told us in a letter of
22 February from Winckworth's that the Secretary of State would
be required to take action to ensure compliance with the mitigation
measures. We understand from a further letter from Winckworth's
of 24 March that the basis of this requirement is the fact that
Information Paper D10 on groundborne noise and vibration, which
sets out the obligation on the nominated undertaker to take mitigation
measures, will be included in the register of commitments and
undertakings, and, with Information Paper D3 on compliance of
undertakings and assurances, we understand that the Secretary
of State will take those steps he considers reasonable and necessary
to ensure compliance with all the relevant undertakings.[16]
6265. It is the nature of this undertaking by
the Secretary of State which causes us concern. We understand
fully why the Secretary of State can only undertake to take steps
that are reasonable rather than all steps, but we also do not
find it hard to imagine a scenario where it could rightly be concluded
by him that it would not be reasonable for action to be required
to be taken by the nominated undertaker to put the mitigation
measures in place further down the time-line of the project. We
can see that if, for example, what was required involved substantial
reconstruction of the tunnel, it could well be that the Secretary
of State would think it unreasonable to require Crossrail to do
that. It may also be reasonable that we would not have a personal
right of enforcement in those circumstances, but what we think
is wholly unfair is that we would not have a claim for compensation
against Crossrail.
6266. The second scenario I mentioned is one
where the mitigation measures are taken, but the noise levels
are still too high, that is, Crossrail has misjudged the effects
of the railway and/or mitigation measures. In that situation,
there appears to be nothing for us to rely on at all. There is
no undertaking by the Secretary of State or anyone else that the
threshold will not be exceeded. We understand we would have no
right of enforcement or to claim compensation against the nominated
undertaker and nor would the Secretary of State even be obliged
to consider doing anything.
6267. We think it is unjust that we will not
have the right to claim compensation and, if you will bear with
me, I will try and explain why. The Committee of course know that
the compensation settlement we will receive on compulsory acquisition
of our subsoil will be governed by the National Compensation Code.
It is with some relief that I say that I have not had an occasion
in my life to become even anything vaguely approaching an expert
on that Code, but we have looked into it to see what effect it
will have on us. We asked Crossrail in our last letter to confirm
that we have understood the position correctly, but Winckworth's
reply of 24 March unfortunately did not cover the point. Therefore,
if I may, I would like briefly to set out what we understand our
position to be.
6268. The compensation settlement will be determined,
and this is the crucial point for us, at the time of compulsory
acquisition. This will of course be a significant amount of time
before the railway is functioning. The compensation we will receive
will consist of two elements. The first is the market value of
the subsoil and, given that we are talking about subsoil, it is
not surprising that we have been told that we can expect the market
value to be nominal. The second element is compensation for severance
and injurious affection caused by the presence or operation of
the railway. We understand, and we get this from ODPM's Compulsory
Purchase and Compensation booklet, that injurious affection includes
loss of amenity due to noise and vibration, et cetera, as a result
of the use of, in this case, the railway.[17]
That is at paragraph 2.36 of that booklet. Therefore, to the extent
that the operation of the railway causes loss of amenity due to
noise, we should be compensated for it.
6269. We asked Crossrail at our meeting how
compensation for noise was assessed and calculated at the time
of compulsory acquisition which is many years before the project
is up and running and so many years before the actual occurrence
of any injurious affection. What we were told was that this would
be done on the basis of the information in the Environmental Statement.
In other words, in calculating the compensation, the same assumptions,
and I stress that they are just assumptions, albeit expert ones,
will be made as were made to determine the mitigation measures
and the resulting noise level predictions. That, we respectfully
submit, is circular. Given that the Environmental Statement predicts
that the noise in our properties will be below the significance
criterion, it will be seen that compensation for injurious affection
will also be nominal.
6270. The point was also made by Crossrail when
we met with them that the compensation settlement is full and
final, so there is no opportunity if their assumptions turn out
to be incorrect to revisit it, say, 10 years down the line or
whatever it will be once the railway opens.
6271. Therefore, it seems to us that there is
a gap in the provision made by the Bill. To our minds, the Compensation
Code recognises the principle that those subject to compulsory
acquisition should have a right to be compensated for injurious
affection arising out of the relevant project, but, because of
the nature of this project and the fact that the compensation
settlement is determined at a time when the real, rather than
projected, extent of injurious affection cannot yet be known,
we will not have the benefit of that right. That seems manifestly
unfair to us.
6272. It is for this reason that we have asked
Crossrail to give us an undertaking that the noise caused in our
properties by the operation of the project will not exceed the
significance criterion. Without such an undertaking, we do not
seem to have a right of compensation and that is a right which
we think the Compensation Code recognises. I think I am correct
in saying, in fact I think I heard this earlier this morning,
that the Promoter of the Bill has been keen in these proceedings
to impress upon the Committee that the principles in the Compensation
Code should not be put up for debate on this project, but we respectfully
submit to you that that is not what we are doing in making this
case.
6273. To put it in a slightly different way,
without an undertaking of this sort from Crossrail, we are in
effect being required to take the risk that the experts acting
for Crossrail, who have formulated the predictions and determined
the mitigation measures required to meet them, have done their
calculations correctly and we think that is unjust and that that
risk should be properly borne by the Promoter.
6274. We think it is also worth pointing out
that we do not really see the difference in principle between
what we are asking for on noise and what Crossrail are already
offering in relation to settlement. The position on settlement,
simply put, is that, if there is physical damage to our properties
during the construction phase, Crossrail will make it right and
compensate us. That is not based on the predicted levels of settlement
included in the Environmental Statement today, but on actual damage
resulting from construction then, and we are unsure why noise
is not receiving the same treatment.
6275. There is another point which we would
like to ask you to have in your minds when you consider whether
what we are asking for is reasonable. I am sure that, if you have
not already, the Committee will at some stage be hearing complaints
about the depreciation in value of properties along the proposed
route as a result of the fear and uncertainty about the project
and the effect it will have, and property values will remain that
way at least until construction is complete and the trains are
running. I am not sure we have actually put them to the test on
it, but I doubt that Crossrail would disagree that our houses
are worth less today than they would be if no one had ever thought
of Crossrail or had put it somewhere else, and they will stay
that way for some time until the real effects of the project are
known. Mr Lurot, who is a fellow Petitioner, is also the Chairman
of Lurot Brand Estate Agents which specialises in mews houses
in central London. He has 35 years' experience in this area and
tells us that buyers are already being put off by the Crossrail
project and the unknowns it brings with it. Buyers are harder
to come by and are expecting large discounts, and will continue
to do so in the long run-up to Crossrail becoming a reality.
6276. At the point that the construction of
the railway is completed or, in any event, soon afterwards, the
real effect of the trains running beneath the properties will
be known and so will be quantifiable and we can expect the value
of the properties to adjust accordingly, but should any of us
want to sell our properties during the very long run-up from today
until completion, we will be adversely impacted by the downwards
effect on property values caused by the fear factor.
6277. There is obviously no provision for any
compensation for that depreciation in the value of our homes and
we understand the reasons for that and have thought better than
to ask the Committee for compensation for the current loss in
value, but we respectfully suggest, when considering whether what
we are asking for in relation to noise is reasonable or not, that
the Committee might like to take into account not only the effect
on our daily life if the noise threshold is exceeded should we
be living in the Mews when construction is completed, but also
the financial disadvantage we will be in should we want, or need,
to sell before completion. An undertaking on noise either in the
Bill or on a contractual basis would, we believe, help us to combat
the fear factor that buyers have in the run-up to the railway's
operation, should we decide to sell in that period.
6278. Crossrail keep telling us that we do not
need to worry and that the railway will be built in accordance
with the Environmental Statement and that the noise levels will
be below the threshold, or at least are likely to be. On that
assertion, we do not see why giving such an undertaking should
trouble them. In fact their reluctance even to discuss it with
us would give a cynical man cause for concern about the levels
of confidence that they have in their calculations and predictions
on noise. They are clearly more confident that they have got it
right on settlement.
6279. There is only one other point on noise
which we would like to raise, but you can breathe a sigh of relief
because I shall be very brief. The noise threshold for residential
properties is currently set at 40dBLAmaxS. We have spoken to Graham
King at Westminster City Council who, I think, has already appeared
before you, and we gather that not only Westminster but other
local authorities have raised, or intended to raise, the issue
with the Committee as to whether that is the appropriate level.
We strongly support the local authorities in their assertions
that 40 is too high, and we mention it so that our support for
the authorities' position is on the record.
14 Committee Ref: A73, Correspondence from Ingrid
Meldal-Johnsen, Alison Human & Antoine Lurot-Petitioner No
14 to CLRL. Back
15
Crossrail Ref: P73, Promoter's Response Document to Ingrid Meldal-Johnsen,
Alison Human & Antoine Lurot-Petitioner No 14. Back
16
Crossrail Information Paper D10 Groundborne Noise and Vibration
and D3 Excavated Material and Waste Management Strategy, http://billdocuments.crossrail.co.uk Back
17
Compulsory Purchase and Compensation booklets http://www.communities.gov.uk/ Back
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