Examination of Witnesses (Questions 19980
- 19999)
19980. Could I just ask the Committee to consider
and contrast the position of the Barbican Hall which was settled
yesterday on terms which were explained to you by me and Mr Cameron.
The world famous concert venue, which hosts some of the greatest
musicians in the world on a weekly basis, does not require the
construction traffic to cease when they are carrying out their
recording sessions during the day. We have reached a limited agreement
during concerts in the evening but for the vast majority of their
time when they are rehearsing and recording during the day, a
simple compromise has been reached because of the infrequency
of construction traffic—you have had the evidence on that—which
is good enough for such a venue where noise sensitivity is just
as important and involves artists of the greatest stature in the
world. They are satisfied that the construction traffic can be
satisfactorily accommodated within their schedules without the
sort of protection which GCS demands they be provided with over
and above the position which anybody else in this country enjoys.
They require an insurance policy from the taxpayer, and in my
respectful submission that is not justified on the small level
of risk which they have identified to you and which has been rejected
by Mr Thornely-Taylor in circumstances which Mr Taylor, sitting
to the right of me, has identified.
19981. Our position on the Compensation Code
we have dealt with on many occasions. I simply refer you, for
example, to the transcript for Day 14, paragraphs 4041-4050. That
Compensation Code applies to everyone for all building projects
and infrastructure projects throughout the country on an even
and fair basis. Parliament has chosen for the moment not to change
that Code. We have set out our position in summary in Information
Paper C2. GCS, in the circumstances I have described, said they
should go further. We say the Code is the fair and proper approach,
particularly given the number of circumstances. Firstly, this
is only an issue about risk on the construction railway lasting
for about ten months, it is not an issue about the permanent operation
of Crossrail, that is resolved by the mitigation. Secondly, this
is a position where, as I have indicated, GCS are asking for something
which even the Barbican Hall, with all its sensitivity, does not
consider to be necessary. Thirdly, they are asking for something
which the ordinary businessman in the street would not have to
fork out if he were to develop his property providing he used
reasonable techniques and adopted a reasonable position. Therefore,
we say that the Compensation Code should be maintained in this
case given the substantial mitigation.
19982. You might like to add into your consideration
the fact that these people went into occupation of this property
with the safeguarding in place. I simply say to you, in support
of what Mr Taylor has just said, what reasonable businessman being
told that a railway is safeguarded under a property, knowing the
nature of your business and its sensitivity to noise, would not
even take steps to ask his noise expert and his studio designer
to investigate the matter further. They did not do so. They sought
no assurances other than an alleged telephone call. In my submission,
it is not the act of a reasonable, prudent small businessman.
Mr Binley knows as well as anyone else that businessmen have to
be careful about what they do, they have got to ensure that they
do not expose themselves to risks. Here was a plan showing clearly
Crossrail going underneath and they took it nowhere at all, they
did not even seek advice from their own noise specialist and that,
in my submission, should not be supported by the Committee by
asking the taxpayer to underwrite the small level of risk which
is involved.
19983. To which I add this: there is some entitlement
to compensation under the injurious affection provisions which
I described to you on Day 14 under the Wildtree Hotels
case, section 10 of the Compulsory Purchase Act. It is limited,
as I accepted on that occasion. Temporary loss can give rise to
compensation although it is reflected in issues relating to the
value of the land, but there is an important principle in our
law, which I referred to on that occasion in a case called Andreae
v Selfridge, supported by the House of Lords in the Wildtree
case, which is there has to be give and take in modern society.
What the court said in Andreae v Selfridge I quoted on
that occasion: "When one is dealing with temporary operations,
such as demolition and rebuilding, everyone has to put up with
a certain amount of discomfort because operations of that kind
cannot be carried out at all without a certain amount of noise
and a certain amount of dust, therefore the rule with regard to
interference must be read subject to this qualification and if
they are reasonably carried on and all proper and reasonable steps
are taken to ensure no undue inconvenience is caused to the neighbours,
whether from noise, dust or other means, the neighbours must put
up with it".
19984. Well, GCS are in a better position than
that because we have offered them this package of measures, they
have been spoken to, what they want is to go the second mile,
indeed if not the third mile, and require us for a position only
of risk, only for ten months, in circumstances where they took
no advice knowing Crossrail was safeguarded beneath their property,
they want us to acquire their property under the material detriment
rules, requiring those rules to be extended.
19985. About that I say two things. Firstly,
on material detriment this is a situation where, as I have said,
it is a ten month construction period. The Committee might like
to consider what level of disruption would be caused by them requiring
us to purchase the property and then moving out. If you are setting
up another recording studio, it would take, I suggest, something
of the order to move the property, so one wonders where that goes
even if everything else were accepted. Secondly, the references
they make in the footnotes to their note in relation to the Liverpool
Street Act and the DLR Act, those were cases where issues arose
in regard to permanent works, not just temporary ten months' works,
and those were situations, as in the examples that they refer
to, where the substantial mitigation which is being provided to
Grand Central over and above most other occupiers in this city,
was not available to the petitioners in those cases, so they are
not good examples because they are not being set on a like-for-like
basis. Grand Central, in our respectful submission, have been
offered a very reasonable package and in our submission the taxpayer
should not underwrite the level of risk which did not occur to
them to research properly at the time when they purchased the
premises. Thank you.
19986. Chairman: Mr Newberry, there is
a very short period of time left. Do you think you need more than
the five or six minutes which are left?
19987. Mr Newberry: Probably, Sir, yes.
19988. Chairman: Then we will adjourn
until 2.30.
After a short adjournment
19989. Mr Taylor: Just before Mr Newberry
makes his closing remarks, just to inform the Committee that we
have been having discussions outside with Westminster City Council,
who have an outstanding concern related to Brewers Court, and
I am pleased to announce that we have reached an agreement on
the basis that I am to provide a second House undertaking to examine
the potential for further mitigation to be provided to mitigate
noise effects upon Brewers Court arising from the use of the service
deck, which the Committee has heard about, and to explore the
possibility of developing a code of practice to regulate the use
of the deck. So I just announce that effect to the Committee's
programme this afternoon.
19990. Mr Newberry: Sir, I rely, of course,
on the evidence of my witnesses and my remarks are not a restatement
of their evidence. Can I, firstly, say one or two things about
the company, Grand Central Studios? First of all, as you have
heard, it is a world-class facility established by Carol Humphrey
and Ivor Taylor. That world-class facility produces what has been
described as iconic work, and examples of that have been given
to you: the recent BBC2 logo, Marks & Spencer and trailers
for James Bond. Within the industry in which they practise this
is work of the very highest quality and demands the very highest
standards. The company which has been founded was as a result
of an investment of £4.5 million and the company as such,
therefore, represents not only an outstanding company but an important
facility within the Soho community of sound studios. Ivor Taylor
and Carol Humphrey are people of exceptional talent and ability
and, I add, personal integrity. I add that last expression for
reasons which I will turn to.
19991. There is one aspect of their evidence
which, as far as I recall, has not been challenged during the
entire proceedings before you, and that is that if the conditions
within their studios in which they practise deviate from that
which they currently enjoy their business will close. That single
fact has remained unchallenged. During the course of my learned
friend Mr Elvin's remarks on compensation one or two expressions
were used which have concerned my clients, and I make the following
points. First of all, you will recall, when Carol Humphrey gave
evidence, she indicated that she telephoned Crossrail when she
became aware of the safeguarded line. She gave the name of the
person that she telephoned, namely Mr Ian Rathbone of Crossrail,
and she was told by him that the facility was not going to be
built; she asked if it could be put in writing and that was refused.
My learned friend Mr Taylor was dealing with Ms Humphrey at that
time, and the making of that call was not challenged. There is
no reason to challenge it, but it was not challenged. Mr Elvin
in his closing remarks referred to an "alleged" telephone
call—i.e. inferring that it had not been made—and
we take some exception to that. It probably was not intended but,
nevertheless, that is how it was perceived.
19992. Sir, can I also say that the directors
of the company do not come before you in order to get compensation;
they come before you to avoid being put in that position. They
come before you to guarantee the succession of their business,
in the advent of Crossrail continuing, which is a facility we
do not seek to stop; we recognise the importance of Crossrail
in the public interest. Mr Elvin indicated when dealing with the
Barbican agreement that that was arrived at because of a partnership,
perhaps inferring that there had been a lack of co-operation between
Grand Central Studios and the Promoters. We have done our very
best over the last eighteen months to two years (we are a small
company with limited resources) to try and achieve a set of circumstances
whereby we did not have to appear in front of you.
19993. You will bear in mind that when this
course first started the Promoters were insisting on 30dB LAmax.
That has now been converted through negotiation to NC20-3 dB third
band octave. They are very, very different positions and it has
taken a long time to persuade the Promoters to depart from the
dB standard and use the NC standard in the way in which you now
know.
19994. Sir, the Barbican agreement is important
in at least one or two ways: first, we say that Mr Thornely-Taylor
is right to equate Grand Central Studios with another world-class
facility. So if that proposition required underlining, we have
had from Mr Thornely-Taylor himself that he regards the two as
world-class facilities. However, there are important differences
in the context of the agreement that has been reached. First of
all, the Barbican is at the end of the tunnel; it does not face
a ten-month period, which no doubt was material in the representative
of the Barbican making the agreement they did.
19995. Secondly, the recordings that take place
in the Barbican have the luxury of having two aspects: one is
that the recordings may take place during the afternoon and the
other is the recordings which take place during the public performance
in the evening. If during the afternoon the rumble of trains is
heard, what happens in the real world is that those two recordings
can be cut and pasted so that one can exclude any problems that
may arise from trains that get on to the sound. That is very different
from the situation of Grand Central Studios where that luxury
just cannot take place, and we have heard the reasons why, and
that particular aspect of the evidence, again, is unchallenged.
The need for the atmosphere at Grand Central Studios does not
permit the cut-and-paste mentality. You know, and you have heard,
and it is common-ground between the parties, the environment that
is required cannot be altered and there is no possibility of cut-and-pasting
or blocking out of sound. That is why the Barbican situation is
slightly different from our own.
19996. Can I pass to the issue shortly of compensation?
As I have already indicated we are appearing before you is not
with the objective of achieving compensation as such. What we
say, basically, reduces itself to a couple of points. I do not
step outside the typewritten undertaking which you have got and
that is what we say we need, but putting the point simply, if
standards are not met that we need either temporarily or on a
permanent basis, we seek redress for the profits we have lost—for
example, if the interference is temporary or if it is not a temporary
interference and, therefore, permanent—and compensation
for the extinguishment of our business.
19997. There are two examples of Committees
in the House putting similar provisions as we seek in Bills. One
of them is the London Transport (Liverpool Street) Act 1983, section
16, and the second is the London Docklands Railway Act 1984, section
21. I am happy to read those two short sections into the transcript
if that would help you. Dealing first with the London Transport
(Liverpool Street) Act 1983, section 16(1): "The Executive
shall make compensation to K Shoe Shops Limited, Vinross Catering
Limited ... " I pause to say apparently we have copies of
it. It may take away the need to read it.
19998. Chairman: A225, if that can be
listed.
19999. Mr Newberry: If I can just take
you to the script, you will see section 16 of the London Transport
(Liverpool Street) Act 1983 deals "with loss or damage (including
but without prejudice to the generality of the foregoing, loss
of profits and damage due to tenant's fixtures and fittings and
stock in trade)."[3]
Then if I can take you on, please, to the London Docklands Railway
1984, section 21, that deals with the protection of Peak Litho
Limited.[4]
They were a printing company. The background to the clause was
that they had very finely balanced equipment where the contention
was that the DLR would adversely affect that equipment. You will
see there that provision was made for transferring the business
and equipment, as set out, and the payment of compensation in
sub-paragraph 2 referred to in sub-paragraph 4. So there is ample
precedent for the Committee to arrange for compensation in a way
similar to that, and although Mr Elvin has recited the general
law, which I do not seek to resile from, it is quite plain that
where you have very special cases such as a sensitive noise studio
or a printing works then the House has recognised regularly those
special cases can be entitled to compensation.
3 Committee Ref: A225, Section 16(1), London Transport
(Liverpool Street) Act 1983 (SCN-20070221-003). Back
4
Committee Ref: A225, Section 21, London Docklands Railway 1984
(SCN-20070221-004). Back
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