Examination of Witnesses (Questions 21420
- 21439)
21420. These objectives have been forcibly underlined
by some of those petitioning—for example, the cases made
by the Corporation of London and Canary Wharf with regards to
the needs of the business community and by the London Borough
of Greenwich with regard to regeneration needs, particularly in
the Woolwich area.
21421. I turn then to Environmental Minimum
Requirements. I just remind the Committee, of course, that I gave
an undertaking in this respect on Day 1, in paragraph 112 of the
transcript. The EMRs set out controls for the design and construction
of Crossrail relating to environmental and planning issues, and
they include the Construction Code, the Planning and Heritage
Memorandum and the Environmental Memorandum. The first draft of
the EMRs was published in September 2005 and circulated to local
authorities affected by Crossrail and other bodies. A revised
version, following discussion, was published in November 2006
and it remains the subject of ongoing discussions and will be
finalised through the final stage of the Bill's progress through
Parliament.
21422. The Secretary of State will contractually
require the nominated undertaker to comply with the controls set
out in the EMR and take such opportunities as may be reasonably
practicable to reduce significant adverse impacts. These contractual
requirements, with the undertakings and assurances given by the
Secretary of State, will ensure that impacts of the exercise of
the Bill powers which have been assessed in the Crossrail Environmental
Statement will not be exceeded so as to depart from the various
assumptions in the Environmental Statements, unless that situation
results from a change in circumstances which was not likely at
the time of the Environmental Statement, or would not be likely
to have significant environmental effects (meaning significant
adverse effects where the change is a modification to the current
project) or where they would be subject to their own consent process
and to further environmental assessment if required.
21423. Turning then to the third point which
is Environmental Impact Assessments about which you have heard
a number of submissions from time to time and, as I have said,
there are detailed submissions set out in writing in the annex.
Two issues have arisen before the Committee frequently in the
context of environmental assessment and the Petitioners have frequently
made claims concerning either, first, the inadequacy generally
of the environmental assessment process for the Bill and the Environmental
Statements produced for Crossrail and, secondly, the failure to
consider alternatives. You have heard an example of that both
today and last week in the context of Mayfair and Spitalfields.
It has been said by a number of Petitioners that Crossrail simply
has not considered the alternatives. A detailed note on these
topics is set out in the annex, as I have said, and they repeat
to a large extent what was set out in the letter I wrote to you,
sir, on 1 March this year in response to the Woodseer and Hanbury
Residents Association and Spitalfields Small Business Association.
What is in the annex you will have seen to some extent already,
but the points, of course, are of wider application. Putting the
matter in summary form, our response is this: environmental assessment
is intended to assist not hinder the process of decision-making,
in this case, of course, decision-making by Parliament. Secondly,
the adequacy of the Environmental Statement is a matter for the
reasonable judgment of Parliament. The courts have frequently
pointed out that merely because a party making representations
about development proposals does not agree with the approach or
the contents of an Environmental Statement does not mean that
document ceases to be a proper Environmental Statement or one
that is not fit for its purpose. In fact, part of the process
of the environmental assessments involves consulting the public
on the Environmental Statement to enable those who have views
on the project, as analysed in the statement, to express their
own views, so it does not follow that because Petitioners can
identify parts of the Environmental Statement which they disagree
with that it is not a valid Environmental Statement. Thirdly,
what has been produced in the Environmental Statement meets the
legal requirements of providing an outline of the main alternatives
studied by the developer and an indication of the main reasons
for this choice taking into account the environmental effects.
There is no requirement, contrary to the views expressed by some,
to set out full information on alternatives only to present an
outline of the main alternatives to the project as a whole. The
requirements of the Directive, therefore, have been met. The main
alternative study was summarised in chapter six of the main Environmental
Statement deposited in February 2005. Specific issues of alternatives
have also been addressed, for example the alternative depot proposals
as a result of AP3 and the alternative alignments in the Spitalfields
area, which I addressed in my letter to you, sir, on 1 March.
By the appropriate touchstone of reasonableness, the environmental
assessment process adopted for the Bill complies with the environmental
assessments directive and is based upon a thorough Environmental
Statement which has been updated and amended as the Bill has proceeded.
The fact that, in documentation concerning this huge product there
may be some flaws, or some might disagree with elements of it,
does not render it or the process as a whole flawed or non-compliant
with the Directive. The Committee can be satisfied, we say, that
the project should proceed taking account of the information provided
in the Environmental Statements together with that obtained from
the public through the consultation process on the Environmental
Statements which together form the part of information to be taken
into account by Parliament. The Committee is entitled to conclude,
we say, and report to the House of Commons that the Environmental
Impact Assessment process has been conducted in a suitable and
reasonable manner and has met the relevant requirement of the
Directive under European law. That is all dealt with in more detail
in the annex but those are the headline points.
21424. I turn now to the fourth heading, A³rhus
and the public participation directive. The A³rhus Convention
on access to information, public participation in decision-making
and access to justice in environmental matters and the public
participation directive produced by the European Union which resulted
from it seeks to establish greater dissemination of information
and public participation in environmental decision-making. A detailed
note on the topic is also set out in the annex to these submissions.
The public participation directive only has implications for the
Bill process to the extent that it modifies the environmental
assessment directive from 25 June 2005 to improve the requirements
for dissemination of information, publicity and public participation.
Publicity requirements of the Directive are amended and include
the duty now to make available certain information whether by
public notices or other appropriate means, such as electronic
media, where available. This has been done, including the use
of electronic media, as the Committee is well aware. Although
the Promoter considers that the Directive does not apply to the
Bill process simply because the Bill process started some months
before the Directive came into force that does not need to trouble
the Committee since the process that the Bill has followed has
met the requirements in any event, and I simply give you again
the headline points .
21425. Sir, I set out in my opening in paragraphs
32 to 40 an overview of the consultation process on the project
as a whole. The Committee will recall those extensive pre-Bill
consultations on the proposals for the public awareness campaign
in 2003 and the establishment of information centres, the second
awareness campaign in 2004 followed by a second round of public
information centres. There were 103 days of information centres
at 55 locations across the Crossrail route attracting over 15,000
visitors. The consultation responses were evaluated and considered
in the design of the project and mitigation measures associated
with it. In 2005, before the Bill was deposited, an information
round was implemented in information centres explaining the proposals
for which powers are now sought in the Bill and an aggregated
consultation report in September 2005 is available which summarises
the consultation process. Secondly, additional notice of the likely
proposals was given in the CLRL business case in July 2003 and
in the Montague Report in July 2004. The Bill and the Environmental
Statement give ample information on the proposals together with
other information available from CLRL and DfT, both in electronic
and paper format. Sir, you will note behind the Environmental
Statement there sit a number of very detailed technical reports
which have been brought out from time to time. They are all available
on the Crossrail website along with the Environmental Statement.
21426. Fourthly, subsequent information, of
course, through the APs and SESs and by other means have been
made widely available as APs have come forward and as the committee
process has continued.
21427. Fifthly, the right to petition Parliament
in respect of which we said at the outset we would not generally
take locus points has allowed those wishing to raise issues with
regard to the Bill to raise them before this Committee, to call
evidence and to question witnesses for the Promoter, and the Committee
has been able to request amendments and other steps to be taken
via undertakings and assurances. Deliberations and decisions made
by Parliament with regard to Crossrail are made publicly available
through a number of media, including Hansard, the internet and
the Committee's own website. Committee proceedings are published
on the website and can be listened to via the weblink or for a
period of months as part of the internet archive of recordings.
There is ample opportunity to hear and understand what is happening.
The provision of information on the Bill has been extensive and
widespread. In addition to depositing documents in public libraries
and with local authorities and by responding to individual requests
for additional information generally under the Freedom of Information
Act provisions significant amounts of information have been made
available electronically via the internet by, for example, both
the CLRL and DfT website.
21428. Therefore, in conclusion on this, there
is no proper basis for saying the procedure related to bringing
forward, deliberating on and justifying the Bill proposals has
not accorded with the substance of the Convention or the requirements
of the public participation directive on access to environmental
decision-making. We say the process has been more than ample to
cater for those requirements.
21429. We turn then to another issue which we
raised on a number of occasions, human rights. The issues which
have arisen in committee hearings largely concern three particular
convention provisions, Article 8, the right to respect for the
home, private and family life; Article 1 of the First Protocol,
the right to the undisturbed enjoyment of possessions which includes,
of course, property rights to be acquired under the Bill; and
Article 6, the right to a fair trial. As far as Article 8 and
Article 1 of the First Protocol are concerned and any other substantive
rights, you will recall the Minister has certified compliance
with the Human Rights Act in the Bill and in any event those rights
are not absolute and can be displaced if, for legitimate reasons,
the homes or the properties and activities of those affected are
to be disturbed in the public interest. In the language of Strasbourg,
sir, the interference must be necessary in a democratic society,
in other words proportionate or strike a fair balance between
the private rights being affected and the public interest which
justifies the interference. What it all means simply is the public
interest in proceeding with Crossrail outweighs the impact on
individual lives and properties having regard to the powers sought
and the effects which they are likely to have. It is plain that
the public interest in proceeding with Crossrail is, we say, sufficiently
important to outweigh the individual rights of those likely to
be affected by the Bill proposals and that the petitioning and
the select committee process here allows the claims of Petitioners
to be considered in detail by your Committee, sir. In a number
of cases your Committee has required the balance between the project
and the parties concerned to be adjusted, thus adjusting the balance
of proportionality, as it has seemed appropriate to your Committee
in the light of evidence and representations you have received.
There is, therefore, built into the hybrid bill process a means
of adjusting proportionality in individual cases where your Committee,
sir, has thought it necessary. So far as Article 6, that is concerned
with the fair trial rights of persons, where there is a determination
of civil rights and obligations. Article 6, in our view, sir,
does not apply to hybrid bills or to any other parliamentary procedures
other than the judicial functions exercised by the House of Lords.
This is because section 6 of the Human Rights Act, which subjects
public authorities, including the courts, to a general duty not
to act incompatibly with convention rights, specifically does
not apply to either House of Parliament or a person exercising
functions in connection to proceedings in Parliament. Sir, the
proceedings in Parliament are specifically excluded from the duties
under section 6 of the Human Rights Act. Apart from section 6
of the Human Rights Act Article 6 would not have applied here
in any event to your committee procedures since you are not concerned
with the content of the law with Article 6, only its procedural
protection. Secondly, there must be a genuine dispute over a civil
right or an obligation which can be said fairly to be recognised
under UK law and the Bill process and you, in particular, sir,
are not determining a dispute over the civil rights which exist
under the law but what the Bill should be if the Bill is passed
by Parliament. In any event the procedure adopted for the committee
proceedings embodies a fair procedure. It allows Petitioners a
reasonable opportunity to present their cases, call evidence and
cross-examine the witnesses called for the Promoter. The case
the Petitioners have to meet is known to them, it is set out in
the various Bill documents and supporting documents and in the
petition response documents which have been sent out explaining
the Promoter's response to individual petitions in the vast majority
of cases. Sir, I would observe that the Committee has been very
fair, indeed, giving Petitioners considerable leeway to present
the cases they have wanted to present to the Committee and the
Committee has allowed them to make those cases even though on
occasions issues as to relevance and materiality to the Bill proposals
have occurred. The Committee has not been ready to cut people
off and has been extremely fair, in our submission. Although some
have complained at being cut short by the Committee from time
to time even if Article 6 applied to the passage of a hybrid bill,
which it does not, Article 6 does not require an oral hearing
and you can satisfy it by consideration of documents including
petitions, it does not permit those being heard to be repetitious
or irrelevant in their presentation to you and it does not restrict
the body conducting the hearing, in the case of these proceedings
this Committee, from exercising reasonable control over its procedures,
for example where it determines that matters run contrary to the
principle of the Bill or do not arise out of an additional provision.
That is all I say, sir, about human rights.
21430. Sir, I then turn to a couple topics which
I will run through briefly. On noise, sir, you will be aware that
the Promoter's schemes for control of noise during construction
and operation have been fully set out in IPD9 and IPD10 and there
is a draft IP in relation to fixed sources that was produced during
the period submitted on behalf of the London Borough of Havering.
They are of course being updated to reflect undertakings and assurances
given during the committee process and further negotiations which
have occurred since they were initially published. Mr Thornley-Taylor
has spoken to those documents on a number of occasions and he
is, of course, pre-eminent in the field and we would suggest respectfully,
sir, that his views should be given considerable weight when the
Committee is considering its recommendations in its report.
21431. In relation to groundborne noise, the
Promoter has put in place design criteria which will ensure that
during the construction and operation of the railway there will
be no unacceptable impact on the occupiers of property above the
railway and the Committee will recall, in particular, the criterion
adopted for the protection of residential properties 40dbA LAmax
is appropriate. There is no justification for the application
of a lower criterion than this, as some have suggested, and in
the context of a project that is attempting to drive costs down
so as to be affordable, there is no justification, we say, for
the provision of floating slab track across the whole of the central
section. Floating slab track will be used, as the Committee is
be aware, but only where necessary. Where there has been a need
to identify additional mitigation due to the particularly sensitive
nature of a Petitioner's property to groundborne noise, we have
offered undertakings to provide that additional mitigation, so
that no unacceptable impact is likely. I give you the recent example
of the Barbican Hall, an earlier example of the British Board
of Film Censors and more recently the Grand Central Sound Studios
petitions. An appropriate undertaking regarding the regime of
maintenance to be applied to the track and wheels based on the
undertaking sought by Camden has been incorporated in the latest
drafts of the relevant IPs. In relation to the airborne noise
and its control during construction, the consent procedure under
section 61 of the Control of Pollution Act 1974 will apply and
that will require a construction contractor to use best practical
means to control noise arising from his operations. Thus, the
Committee rest assured that an appropriate level of mitigation
will be provided and controlled by the local authority. Where,
notwithstanding the use of best practical means, the construction
noise impacts are forecast to exceed the criteria set out in IPD9,
residential occupiers will be offered noise insulation for their
properties or temporary re-housing as appropriate. The criteria
have not been subject to challenge in any petition that has been
heard by the Committee, which is of itself an indication that
the criteria are appropriate.
21432. So far as fixed source noise is concerned,
this was raised, as you will recall, by the London Borough of
Havering which had concerns regarding the appropriate criteria
to apply and you will have evidence on that given at the time.
Needless to say, we rely on our submission made at that time in
response to Havering's petition. There is no scientific basis
for adopting the criteria which Havering has proposed. In short,
sir, we contend the mechanisms put in place in the Bill and undertakings
provided will secure that noise from the construction operation
of the railway is appropriately controlled.
21433. Sir, the next topic, which has arisen
frequently, is settlement. Sir, we have explained our positions
clearly in a number of circumstances, first, Professor Robert
Mair's evidence to the Committee on Day 8 paragraphs 2368 to 2425
in IPD12 ground settlement and the Environmental Statement Volume
6, appended to B1 section 10 and B2 and in the various technical
reports. Sir, I am going to summarise this section because most
of this has not been the subject of major dispute. A three-stage
approach to settlement has been adopted based on long experience
of major infrastructure, including CTRL and the DLR. It is set
out in the IP. It is very conservative in its assumption so it
is always predicting a worst case scenario and we rely upon good
practice and experience to be the main means of preventing settlement
effects from tunnelling. We have in place a series of protections
should issues arise and there will, of course, be careful monitoring.
Subject to certain conditions, the Secretary of State will require
the nominated undertaker to reimburse property owners for the
reasonable cost they might incur in remedying material or physical
damage if ground settlement is caused by the Crossrail works,
and you will be aware that a settlement deed is being produced
that gives effects to the assurances set out in the IP. I should
remind the Committee that deed is to be amended and it will be
the amended deed which is finally completed which will be offered
to the occupiers who fall within it, but, as I reminded the Committee
and some of the Petitioners I think on Day 68, you do not have
to sign up to the settlement deed to benefit from the protection
set out in the IP, they are available in any event.
21434. I add a note because of what has been
said on some occasions. Contrary to the views that some have expressed,
we do not suggest that it would be right or fair for the Promoter
to offer a complete indemnity as to any damage occurring during
the works without it being shown the damage that resulted from
the works themselves. It is not the role of the public purse to
act as insurer of the damage, however caused, and it is only reasonable
that it should only compensate, as it will do, if it is shown
that damage has been caused by the Crossrail works themselves.
But, Sir, as you will be aware, in the most instances in which
settlement has arisen it has concerned the provision of information.
You will recall the two weeks dealing with the Spitalfields objectors
last summer and the concern over information has been dealt with
by the giving of undertakings for the provision of further information.
21435. We turn then to the question of compensation.
With few exceptions, identified by the Committee in its interim
decisions, the general approach of the Promoter is to ensure a
level playing field with other public works projects and to apply
the National Compensation Code as set in IP C2 and as explained
on a number of occasions in submissions, for example Day 14, paragraph
4041-4050 and day 74, 19979-19985.
21436. Mitigation, as you will be aware, Sir,
has been offered in many cases which obviate the need for further
concern. In any event, the law which applies to development projects
in this country is based on the case which I have referred the
Committee to on a number of occasions, Andreae v Selfridge,
which was supported by the House of Lords in the Wildtree Hotels
case. What this recognises is there has to be give and take in
modern society. Crossrail is a project overwhelmingly in the public
interest, running through one of the busiest cities in the world
where development and building works are a constant fact of life.
What the court said in Andreae v Selfridge I have quoted
before and it is worth repeating: "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 neighbour whether by noise, dust or other means, the neighbours
must put up with it".
21437. Apart from the wholly exceptional case
of Smithfield, we maintain that those seeking special treatment
are going against the will of Parliament which has been to apply
the current code on a consistent basis for years, that they are
seeking an advantage not provided to most affected by such projects,
and in some cases they are effectively seeking that Crossrail
should under-ride losses which were avoidable, for example those
who may have purchased properties in the knowledge that they were
within the safeguarding area for the project or simply seeking
Crossrail to provide them with an insurance policy. This has not
been the general policy of Parliament nor is there any good reasons,
we say, why those claiming it should be singled out for special
treatment from the majority of the population, particularly given
the benefits Crossrail will deliver to the population, both business
and the residential communities.
21438. Petitioners' costs: A number of Petitioners
have requested the Committee that the Promoter should pay their
costs of petitioning Parliament, and we say, Sir, the position
is quite straightforward, there is no power to award costs. Section
1 of the Parliamentary Costs Act 1865—I am not sure whether
this is deliberate—which is replaced as of 1 April this
year by Section 10 of the Parliamentary Costs Act 2006, applies
only to private bills, as does the new provision, not to hybrid
bills, which are public bills introduced to Government by ministers
rather than by private bill procedure. The Crossrail Bill was,
of course, introduced by the Secretary of State for Transport.
Costs should not be awarded in any event as a matter of course
since they may only be awarded where two further requirements
are both satisfied: firstly, the provisions of the Bill have been
altered to include provisions for the protection of the Petitioner,
this has not been done at least to date in the interim decision
and , secondly, the Petitioner has been unreasonably or vexatiously
subjected to expense in defending his or their rights proposed
to be interfered with by the Bill. That is a high test to meet
and the Promoter submits that it has not been met here. Sir, in
any event, the simple answer is we do not think the cost provisions
apply to the hybrid bill process.
21439. Sir, finally, you will be relieved to
hear, I have an update on the Access Option, which is Section
10 of the written statement. Sir, you said in your interim decisions
you would like an update from the Secretary of State on the Access
Option. The Access Option would provide security that Crossrail
trains can have sufficient access to Network Rail's network needed
for Crossrail to work as a project and to ensure its benefits
can be realised. You will recall, Sir, there was unhappiness in
the rail industry about using railway powers in the Bill to secure
access to the rail network. There was widespread support for using
an Access Option instead, which is an existing industry mechanism
under the Railways Act. The Promoter therefore decided to negotiate
an Access Option with Network Rail which will be subject to the
approval of the Office of Rail Regulation. The Promoter consulted
widely on the policy document describing the planned Access Option
which was finalised and published in March 2006. You will recall
that the cross-industry Timetabling Working Group, under an independent
chairman, oversaw work to demonstrate the feasibility of the Crossrail
timetable and took a look at the growth issues. The Committee
then heard evidence on this at some length last July. Later that
month, the Promoter started to discuss heads of terms over the
Access Option with Network Rail. Also, at that time Network Rail
assumed the lead in further timetabling and other modelling work
and that work is detailed and I know Mr Berryman provided it to
the Committee dated 17 July last year. As that paper described,
the modelling work needed to support the Access Option application
is very extensive. There has been consultation with interested
parties through regular meetings of the Reference Group chaired
by Network Rail which replace the Timetabling Working Group. The
results of the modelling work are emerging and the reference group
is being consulted on them.
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