Examination of Witnesses (Questions 21660
- 21679)
21660. Chairman: That is agreeable.
21661. Mr Mould: And if I need to respond
I may have to ask for leave to do so. Thank you.
21662. Ms Lieven reminds me, if I need reminding,
that I have to pray the Committee's patience when we have completed
this Petition formally to identify four matters by way of overall
closing, which I hope will not take very long at all, but I will
leave that, if I may, until after Mr Jones has had his say.
21663. Sir, just summing up our position in
relation to this Petition, it is, I think, now essentially accepted
that the practical reality is that we need to acquire the Petitioner's
property and to demolish the building to clear the site to enable
the proposed Woolwich Station works to proceed. We have explained
that to you and Mr Berryman has confirmed that in his evidence.
21664. We have made a commitment, repeated before
this Committee today, as to the circumstances in which we would
exercise powers of compulsory acquisition conferred by the Bill
for that purpose, and Mr Charlesworth has very fairly accepted
that that gives him a measure of comfort as regards the uncertainty
which he identified as to the progress of the scheme.
21665. We have also indicated, and he has equally
accepted, that this is a valuable commitment, that we would give
advance notice of entry by way of 12 months' advance notice of
entry in order to enable him to plan for the inevitable relocation
of his business from the site. The Committee knows that the reality
is that the business would have to relocate because the building
would be demolished and the works would endure for a period of
some five years whilst the construction of the Woolwich Station
was carried out. The Petitioners would be entitled in the ordinary
way, as with others who are in a similar position through the
scheme, to receive land compensation on the open market for their
leasehold interest and the cost of being disturbed and displaced
from their business to alternative premises, and we have indicated
that we would assist in that process through the services of the
proposed relocation agency.
21666. That is the background against which
the issues raised by the Petitioners need to be considered. The
first of the matters raised is the possibility of the Secretary
of State foregoing acquisition of at least a part of the Petitioner's
land and entering into some sort of licence or lease arrangement.
Mr Smith has explained that he thinks there are particular practical
difficulties with that given the multiple nature of ownership
in relation to this land and the difficulties of dealing with
the compensation position. The fact that Mr Smith, with all the
experience that he has in relation to these matters, was finding
it very difficult to see how that arrangement might possibly be
made to work, you may feel speaks volumes as to the impracticality
of that and, for that reason, the policy that we have for acquisition
in relation to sites where demolition is to take place for works,
sites in multiple ownership, has been established, it is a tried
and trusted approach which on balance is fair to all concerned.
21667. The other issue raised is as to the arrangements,
assuming acquisition takes place, for disposal in due course of
any surplus land that might be available following the completion
of the Crossrail works. We have explained our policy in relation
to that. In principle, as the only qualifying interest, the Petitioners
are able to seek to bring themselves within the approach of their
policy. Mr Smith in re-examination explained some of the considerations
that were to be taken into account, but the overriding consideration
is this: the Secretary of State and the Promoter are very keen
that land which is surplus and available for re-development following
the completion of the works should be disposed of and dealt with
in a way that accords most fully with the public interest. In
this case the public interest clearly demands that at the earliest
possible stage appropriate redevelopment take place in order to
satisfy the requirements of the conservation area and to ensure
that the scenario Mr Smith painted of a uncertain period of fallowness,
as it were, is not realised. That is why the land disposal policy
is drawn as it is and that is how it ties in with our commitments
to over-site development following the completion of the Crossrail
works. It is the public interest in those matters that must, we
would submit, be paramount.
21668. Finally, I come to a matter that has
been touched on in questioning, but I think will probably inform
the subject matter in some submissions by Mr Jones in a moment
or two and that is the question of costs. I think there is to
be an application that the Committee should require the Promoter
to pay the Petitioner's costs incurred in these proceedings in
relation to its premises. We would respectfully suggest that would
not be an appropriate decision for the Committee to make. Mr Jones
put the matter in this way: firstly, he said costs had been incurred
and the question is where should they fall. He said that this
is a case of a landowner whose land will be acquired compulsorily,
he will be displaced and have to relocate his business. That will
entail costs and construction. He said that he has incurred costs
in seeking as far as he can to co-operate with the Promoter in
relation to the scheme so far as it affects his property and his
interests. He said that he has incurred costs, in particular,
in responding to changes brought forward during the course of
the development of the Bill scheme and proceedings before this
House, changes which, of course, as the Committee well knows,
have been brought forward in response to recommendations and decisions
made by your Committee and which, therefore, sir, you will take
no difficulty in being dissuaded, very much reflect the public
interest. Those are essentially the factors that Mr Jones places
before you and which he says justify a requirement that we shall
pay his client's costs. That is a set of circumstances which is
by no means unique to these Petitioners. There will be many instances
where during the course of negotiations between the Petitioners
and those who sit behind me the question of Petitioners' costs
are raised in just those circumstances and the Petitioners have
ultimately accepted that is not a justifiable basis upon which
to require the Promoter to pay Petitioners' costs. If this Committee
were to depart from that approach in relation to this Petitioner,
it would set a very radical precedent and one which, we would
submit, does not find any justification in the factors to which
Mr Jones has and, I understand, will refer. Sir, that alone, we
would submit, should make the Committee, with respect, think long
and hard before acceding to Mr Jones's request.
21669. Finally, if I could set that briefly
in the context of practice and precedent, it is the long-standing
practice of this House that in relation to hybrid bill proceedings,
the Promoters and Petitioners should bear their own costs. That
is confirmed by the Parliamentary Costs Act 2006 which is a consolidated
statute and which made no provision for awards of costs for unreasonable,
vexatious circumstances in hybrid bill proceedings. It was confined
to a position in relation to private bills, so it is submitted
this Committee should be slow to depart from a position that has
been so recently established in consolidating legislation by Parliament.
In any event, if the Act were to make provision for costs in proceedings
such as this, it is clear from Section 10 of the statute that
two prerequisites must be established in order to raise consideration
whether costs should be awarded. One is whether the provisions
of the Bill have been altered so as to include protective provisions
in favour of the Petitioner and here, as we stand today, no such
provisions, I understand it, are being sought in relation to the
Woolwich scheme. Secondly, and more importantly, the requirement
is that the Petitioner has been unreasonably and vexatiously exposed
to costs and that must logically entail the Petitioner demonstrating
that the Promoter has been guilty of some unreasonable or vexatious
conduct as regards the Petitioner and his interests in order to
justify, if you will, an award of costs thrown away by that conduct.
No such evidence is available here and I support that by this:
under the hybrid bill scheme the Petitioner stood to be affected,
as you have heard, by virtue of the need to construct a shaft
to the south-east of the Arsenal Way car park. The AP3 amendments
supported by Mott MacDonald's engineering report, which Mr Berryman
referred to, enable the Promoter to revise the scheme in favour
of AMP so as to enable an agreement to be reached in principle
in May of last year with AMP and their agents that arrangements
could be secured so as to enable AMP to remain. That was, as I
made clear in evidence, an agreement in principle reached before
any decision of this Committee as to the need to promote a station
at Woolwich which, as you recall, was taken in July of last year,
a year ago. That position only changed when the apparent proposals
for Woolwich were decided upon and accepted by the Secretary of
State and then promoted by virtue of the additional provisions
which you have before you today. There can be no question of the
changes of circumstances which affected AMP during the course
of the summer of last year being due to any prevarication or lack
of clarity on behalf of the Secretary of State. It was a situation
that arose as a result of a considered decision by this Committee
and an equally considered reaction to it by the Secretary of State,
ultimately resulting in this AP being brought forward. As I emphasised,
that was one which was based upon both this Committee and, indeed,
the Secretary of State weighing up where the public interest lay
in relation to what should happen to Woolwich and a meeting of
minds in relation to that question. That has, unfortunately, caused
AMP from their perspective to incur substantial costs in reacting
to that change of circumstances. We sympathise with them in that
respect and understand why they feel frustrated that should have
happened, but that fact alone does not, in my submission, justify
any award of costs being made in their favour in relation to their
appearance before this Committee. I am sorry I have gone for a
little length, but it is an important point to substantiate. For
those reasons I would invite the Committee not to accede those
points which I know Mr Jones is going to make in a moment or two.
21670. Mr Jones: I have got some notes
in writing which means I hopefully can be a little bit more speedy
with the Committee and I am conscious of lunch coming up. If my
agents can pass them around. There are two notes, one on this
Committee's ability to award costs and a second note on the lease,
licence, grant of option. Could I deal with the costs point—
21671. Chairman: These documents should
be listed as A249 and 250.
21672. Mr Jones: Sir, the position of
the Petitioner in this case is quite unique. Mr Mould painted
the picture that there were plenty of petitioners who may have
negotiated, reached some arrangements, withdrawn their petitions
and not received their costs, so be it, but we are not in that
position. We are in a position where we have incurred what Mr
Mould concedes are substantial costs but not for any benefit,
not for the avoidance of our relocation and, although Mr Mould—I
may respectfully suggest—paints the picture of the pleader
in difficulties, whenever in difficulties, you always paint the
difficulty that this will open the floodgates. I will come back
to that in a moment. The position here is quite unique and I note
the Promoters have not drawn the Committee's attention to any
other Petitioner before this Committee who has been in the same
position.[24]
This Committee's decision in respect of Woolwich arises out of
quite unique circumstances. I have set out in paragraph 1—I
do not need to repeat—the history of why we are obliged
to employ professional assistance. Even the Promoter's witness
at the end, though he did not want to say it, admitted that had
been helpful in re-examination and that is why I could not cross-examine
him, although the report was done by Mott MacDonald, that was—and
I think this is a submission if there is any issue of it—with
the input and direction of those engineers employed by my clients.
That was raised in re-examination so I could not deal with it,
but there has been no doubt or suggestion by the Promoters that
it was not necessary for us to incur those costs.
21673. I turn to paragraph 2, again I can take
that mostly as read. I take the point that the Chairman of this
Committee raised by touching on the issue of fault at the beginning
of this hearing. The question is, as Mr Mould must concede, who
should bear the costs thrown away? These are not costs improperly
incurred, unreasonably incurred, these are costs properly incurred,
who should bear the costs of up to £100,000? On any view,
it should not be the Petitioner. Nobody is suggesting, and Mr
Mould quite properly does not suggest, that the Petitioner unreasonably
incurred those costs. The question, therefore, should be whether
it is fair and proper for the Petitioner to bear those costs and
it is important it is the Promoter who wants the scheme—it
may be in the public interest, we sympathise with that, we support
it—but as part of the promotion of a scheme it is the Promoter
who must bear the vicissitudes and risks of promoting its scheme.
21674. Paragraph 3, if I go to the legal point.
There seems to have been a bit of change, if may say so, from
the position of the Promoters to that which they gave in closing
submissions and also the implication that was given in correspondence
to us. It appeared to be asserted by the Promoter before this
House previously that costs may only be made under the Parliamentary
Costs Act 2006, that was my impression in reading the closing
submissions given to this House, and I have given the reference
on Day 81 by the Promoter. It does appear now from Mr Mould that
he accepts the Committee does have the power to award costs. Mr
Mould is right in saying so in respect of hybrid bills and, indeed
as I point out in paragraph 4, it would be highly anomalous and
unfair if a person petitioning against a hybrid bill, where the
Promoter is the Secretary of State would be in a worse position
that a private bill. In paragraph 5 the Committee has an inherent
discretion to award costs. That discretion is not fettered or
governed, as Mr Mould seems to suggest, by Sections 10(a) and
(b) of the Parliamentary Costs Act 2006 because—and I agree
with the Promoter—those provisions apply only to private
bills. What that Bill has done in its re-enacted form is to limit
the discretion that this Committee would otherwise have in respect
of private bills but it does not—and this is paragraph 6—purport
to restrict the discretion this Committee has to award costs in
respect of a hybrid bill. We are not, therefore, governed by Sections
10(a) and (b). If there were any doubt over the ability to award
costs, that comfort is found in Section 15 of the Parliamentary
Costs Act which provides for the taxation mechanism in dispute
of costs, once you have got the awards, so whether the Promoter
accepts the £100,000 or not, the taxation provision under
the Act is expressly applied to hybrid bills and you see that
in Section 15. I have also given the reference and quotation from
the Law Commission's report that supports that.
21675. Paragraph 8, again we have given it,
I hope, in to the Committee. I have given the reference in any
event. The Committee has a power by way of a clause to insert
into the bill either for a particular Petitioner or in general
a provision for costs and I give the reference to that. In short,
this Committee has to decide whether an innocent person who is
having his land removed from him should also have to bear the
costs of £100,000 or whether the Secretary of State should
bear those costs. In my respectful submission, this Committee
found the view that the Secretary of State should have been promoting
the station of Woolwich—I am not going to enter into that
debate—the Secretary of State fought tooth and nail not
to do it, it is not the Petitioner's fault that the Secretary
of State did not come up with a scheme which found favour with
this Committee at first blush and the cost should be borne by
the Secretary of State. They are modest in comparison to the cost
savings that we have also seen by running the route on the alignment
of my client's land. That is all I wish to say on the costs.
21676. If I move to the issue of the option,
I have got a short note on that.[25]
The first three paragraphs set out the authorities for the propositions
that I opened with, I do not believe they are in any dispute.
You should only take what is necessary in the public interest.
In this case, the freehold may be necessary for the subterranean
station box; it is not necessary for the surface. Surplus land,
the approach of the Promoters is simply to apply their policy
and not even to consider the prospect of a lease or licence. Sir,
I do say that when you come to examine this point, whether the
Promoter should be supported in simply applying his ordinary policy,
it is relevant to take into account the peculiar circumstances
that my client finds himself in as a result of the losses incurred
and the disturbance of the change from AP3 to AP4, it does place
this Petitioner in a different position to others. The point is
that whatever policy the Secretary of State makes, it cannot be
a magic wand for behaving other than in a reasonable way, and
in a reasonable way the Secretary of State must justify in the
public interest why he requires the freehold. That has not been
done and it was noticeable that for the first time in vague terms
pushed by Mr Mould to suggest certain planning issues as to conservation
areas and such like, we heard the first scintilla of a case being
made that there was any public interest in my client not having
an option to purchase or a lease or licence. No proper case has
been put forward and certainly in respect of the option to buy
back at market value, that has been with the Promoters for some
considerable time. We do say that no compelling case has been
put forward by the Promoters to justify the acquisition of the
freehold of all the remaining land. This is my final point, Mr
Mould sought in re-examination to draw some comfort from the code
that contemplates a re-sale to previous owners who form a collective
together. That is very different to what we are seeking, we do
not want the land to be acquired freehold, first of all, and,
secondly, that option is still subject to the other caveats in
the code that the Secretary of State could, for example, sell
the land and decide that Berkeley Homes, for example, one of the
largest landowners, it would be more convenient for them to be
given all the land east of Arsenal Way. I ask rhetorically when,
if ever, this Committee is going to see the final agreements between
Berkeley Homes and the Secretary of State as to the true funding
arrangements by which the station is to be developed and on what
basis the land east of Station Road will be promised, something
that, I suspect, will be kept from this Committee for some time.
Unless I can assist any further, those are the submissions on
behalf of the Petitioner.
21677. Chairman: Thank you very much
indeed, Mr Jones. We now come to the end of the cases before this
Committee. Before we ask Ms Lieven to do a closing statement,
sorry, Mr Mould, you want to reply?
21678. Mr Mould: Yes.
21679. Chairman: For how long?
24 Committee Ref: A249, Committee's ability to award
costs (SCN-20070710-008 to -011). Back
25
Committee Ref: A250, Lease/Licence/Grant of Option (SCN-20070710-012
and -013). Back
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