Clause
21
Proceedings
in repect of statutory nuisance:
defence
Question
proposed
, That the clause stand part of the
Bill.
Stephen
Hammond:
This debate gives us the chance to have another
little chat about noise. The clause continues in much the same vein as
clause 20, in the sense that it removes any accountability on behalf of
the Secretary of State or the nominated undertaker for excess noise
pollution caused by the Crossrail project. We have just heard the
Minister justify the rationale for the Secretary of State determining
the issue, but towards the end of those remarks, the Minister said that
on clauses 20 and 21, the Secretary of State may appoint an independent
inspector. If that is the precedent of the 1996 Act, the Committee
would be much more reassured if the Minister’s comment was in
the Bill and the issue determined by an independent inspector whom the
Secretary of State nominated. That would release the Secretary of State
from the invidious position of being, potentially, the defendant and
the judge, which would be quite important.
The
Minister’s argument about separate numbers of magistrates courts
all potentially doing different things is slightly odd, because the
magistrates courts would test whether a noise level was above or below
a level as specified by an Act, and although they might apply sanctions
differently, their findings would be consistent. The Minister’s
argument was therefore difficult to accept.
I hope that
the Minister will have the chance to reflect on the possibility of an
independent inspector being involved. According to the Environment
Protection Act 1990, if a magistrates court decides that a nuisance is
caused by noise or that such a nuisance is likely to recur, it may
proceed to require the defendant to take appropriate action to abate
that noise, and impose a fine. The clause does not quite make a mockery
of, but it takes away from, that important legislation by making the
perpetrator to the noise, if they are associated with Crossrail, not
responsible under the 1990 Act. Clause 21 states
that
“no order shall be
made, and no fine shall be imposed...if the defendant shows
that”
the noise was
caused by works associated with Crossrail.
We have said all along in
Committee today that Crossrail is a project of huge strategic
importance that will require exceptional powers, but to the family
living next door to the new Woolwich station or near any line
being built, it will not matter whether the noise nuisance from the baby
being disturbed at 3 o’clock in the morning is caused by the
development of Crossrail or by some other construction
project. I have
listened carefully and I am glad that the Select Committee felt that
there were some reassurances, but I find it striking that that
Committee expended so much effort in the past two years listening to
the concerns of people affected by Crossrail and tried to reassure
them, because the two clauses we are considering will not impose a
penalty if such concerns about noise are brought forward. Will the
Minister again consider carefully the fact that in clauses 20 and 21,
the Secretary of State is put in the potentially invidious position of
being both defendant and judge? That is not good
legislation.
Mr.
Harris:
The purpose of clause 21, precedented in
the 1996 Act, is to provide a defence against proceedings brought by an
individual alleging a noise nuisance under section 82 of the 1990 Act.
The defence arises if the nuisance arises in connection with authorised
activity, and where the relevant works are carried out in accordance
with either a notice or a consent given under the Control of Pollution
Act 1974.
Such a
notice or consent already forms a defence in any proceedings for
failure to comply with a noise abatement notice issued by a local
authority under section 80(1)(a) of the 1990 Act. The provision means
that the nominated undertaker will be able to carry out his
works—importantly, works approved by the local
authority—with greater certainty. However, I recognise
Opposition Members’ concerns. One requirement of the Crossrail
construction code is that the nominated undertaker must obtain consent
under section 61 of the 1974 Act with respect to the construction works
that it is to carry out under the Bill. In view of that commitment, it
is reasonable that the nominated undertaker should be able to carry out
the works, as approved by the local authority, with the certainty that
the clause will give—namely, that it will not then be subject to
separate proceedings under section 82 of the 1990
Act.
2.30
pm
Such
separate proceedings could inhibit or delay necessary construction
works for Crossrail that have previously been approved by the local
authority as representing best practicable means for the minimisation
of noise. There are other safeguards. The first is that, because of the
Crossrail construction code commitments, concerned individuals have the
assurance that their local authority will have scrutinised in detail
the proposed construction methods in each case to check that best
practice is being
followed.
Secondly,
individuals potentially affected by noise nuisance arising from the
Crossrail works have already had the opportunity to petition the House.
Indeed, a number have done so. Several of the undertakings and
assurances given during the Select Committee process relate to the
promoter’s strategy for controlling and mitigating noise
impacts. Subject to the Bill completing its passage through the House,
individuals will also have the opportunity to petition again in the
other place.
In response to the point made by
the hon. Member for Wimbledon, the Secretary of State for Transport
remains accountable to Parliament for the
undertakings contained in the construction code. That is at it should
be on mitigation and on noise.
Question put and agreed
to.
Clause 21
ordered to stand part of the
Bill.
Clause
22
Licensing
Stephen
Hammond:
I beg to move amendment No. 38, in
clause 22, page 14, line 12, at
end insert
‘with the
exception of any trains used to transport construction material to
sites being used in connection with the scheduled
works.’.
We
come to a series of clauses that look at railways matters. A number of
them concern the obligations of the Office of Rail Regulation and the
Secretary of State with regard to the railway assets. The Railways Act
1993 obliges the operators of railway assets to obtain a licence from
the Secretary of State, or from the regulator with the consent of the
Secretary of State, to operate such assets as train stations, networks
or light maintenance depots. Under clause 7 of the 1993 Act, the
Secretary of State may grant an exemption from that requirement to be
authorised by licence provided that he has consulted with the
regulator.
The clause
provides that operators of Crossrail-related railway assets will need
neither a licence nor a licence exemption during the Crossrail
construction period, yet there is the possibility that trains will move
construction material and personnel to sites. The Committee will want
to understand why the additional power is necessary, given that the
Secretary of State already has the power by virtue of the 1993 Act to
grant exemptions to operators from the requirement to have a licence.
It appears that the only difference being created here is the removal
of the obligation from the Secretary of State to consult with the rail
regulator before granting such an exemption. I look forward to the
Minister’s clarification of whether that is the intent of the
clause.
That is the
general point relating to the motive behind the clause as a whole. My
amendment is slightly more particular. It relates to construction
materials being used in the building of Crossrail. If such materials
and such personnel are to be transported by rail, I see no reason why
the operators of the trains and the related infrastructure—the
railway assets—should be excused from the need to have a licence
validated by the
ORR.
That licensing
regime ensures that certain minimum standards are met in terms of
efficiency, the environment and most particularly, safety. It is a key
regulatory requirement and one that I would be wary of seeing
sidestepped for any railway asset, particularly where construction
workers may be involved. I look forward to the Minister’s
reassurance that those powers are
necessary.
Mr.
Harris:
I hope I can reassure the hon. Gentleman that
there is no need for the amendment.
Clause 22 deals with the period
between part of the Crossrail network becoming usable and its opening
to fare-paying passengers. During that period, the newly created
network may be operated for construction trains, and test trains will
be run. The clause removes the need to obtain licences from the ORR to
use the network and to run trains in that period. The licensing
provisions of the 1993 Act are appropriate to the commercial operation
of this, as any other railway, but add no value to developmental stages
of a new
railway.
The
amendment would require the licensing of services carrying construction
materials on newly constructed parts of the Crossrail network that have
yet to be brought into commercial operation. However, if the hon.
Gentleman is concerned about trains being used in the construction of
Crossrail and also running on the existing national rail network
without a licence, I can reassure him that the clause does not remove
the requirement for a licence to be obtained in the usual manner in
relation to that
network.
The only
construction trains that will be exempt from licensing for their entire
journey are those contained within the newly constructed parts of the
Crossrail network. There is no possible value in trying to apply a
licensing regime designed for commercial operations to the running of
construction trains within a construction site. I hope that that is
enough information to reassure the hon. Gentleman and persuade him to
withdraw the
amendment.
Stephen
Hammond:
The Minister’s opening remarks are
certainly extremely useful in confirming that any construction trains
being used on the national rail network will still require a licence.
However, I am still concerned. I understand entirely that the licensing
and regulatory regime that one would use for commercial operation is
not appropriate to a construction operation, but, at the same time, are
we saying that there is no regulatory or licensing regime being placed
on the construction traffic at all? Safety implications
must be addressed. Therefore, how can we be clear
about the safety of construction workers being
guaranteed?
Mr.
Harris:
Although the trains will be running exclusively on
newly built railway not open to commercial traffic at that time, and
will not need to be licensed by the ORR, nevertheless, health and
safety legislation will still apply in full force to the whole
Crossrail construction
site.
Stephen
Hammond:
I am grateful for the Minister’s extra
clarification, because it convinces me that I do not need to persuade
my colleagues to support me in a Division on the measure. I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
22 ordered to stand part of the Bill.
Clause
23
Overriding
duty of Office of Rail Regulation before Crossrail
operational
Stephen
Hammond:
I beg to move amendment No. 39, in
clause 23, page 14, line 22, at
end insert
‘and with
regard to commercial freight
requirements.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 40, in clause 23, page 14, line 38, leave out subsection
(5).
Stephen
Hammond:
The Committee will be well
aware of the concerns within the rail freight industry about the
Crossrail project. EWS, the largest commercial rail freight company in
the country, has provided the most vocal representation from the
industry in pronouncing concerns about the implication of the project
for freight transport. Mr. Graham Smith, the
planning director,
said:
“Whilst
appreciating the importance of improving passenger traffic in London,
this must not be done at the expense of freight by
rail.”
EWS also tendered
a comprehensive submission to the Transport Committee last year, as I
am sure the hon. Member for Leicester, South and my hon. Friend the
Member for Northampton, South are
aware.
In
essence, I agree with the Transport Committee’s conclusions on
the matters raised by EWS—namely, that we all accept that the
freight industry has been beset by a number of problems, not only in
London, but across the country, that need to be addressed
appropriately. I am sure that almost every member of the Committee is
committed, as I am, to supporting the rail freight industry and to
persuading more freight off the roads and on to the railways. In
particular, Network Rail could and should do more to help freight. We
hope that every effort will be made to ensure that the freight industry
suffers no negative repercussions from
Crossrail.
I
support the general purpose of the clause—namely, that the ORR
shall exercise its powers in a way that facilitates the effective
operation of Crossrail services. I take the point that freight is not
an issue for the bulk of Crossrail, but at either end of the route
there are implications concerning it. Therefore, I want the freight
industry to be reassured that there will be no negative impact to its
operations. I have tabled the amendment in an attempt to have regard
paid to commercial freight requirements. I hope that the Committee
looks favourably on
it.
Amendment
No. 40 is probing. I have already alluded to subsection (1), which
provides that the ORR should carry out its functions in a way that
facilitates the operation of Crossrail services. Subsection (5) allows
the ORR to disregard the provisions of subsection (1), provided that
the Secretary of State agrees. Why does the Minister at one stage want
the ORR to promote and facilitate the operation of Crossrail while, in
subsection (5), allowing it to act in a way that might hinder that?
That seems slightly odd. Will he explain exactly why subsection (5) is
there and what specific circumstances it is supposed to cover? I look
forward to his
response.
Susan
Kramer (Richmond Park) (LD): I echo the concerns over the
role of freight. The amendment would be a neat way to bring the issue
back into the overall conversation and make it clear that there is a
significant freight issue in the construction and operation of
Crossrail. I say that in part as a
Londoner.
London’s
major aggregate yards require freight to be able to use some of that
track. That would not turn the track into a freight line, but there
needs to be access to part of the Crossrail track—for example,
if the aggregate
depot at Acton is to be available. With all the construction in London
that is necessary and ongoing, it would be a devastating blow if that
freight access was all but killed before the entire project was
developed.
Mr.
Binley:
The Minister knows that considerable concern was
expressed by the freight industry about the impact of Crossrail
services on line time. There are fears that freight will have
diminished time as a result. We had some very sizeable discussions in
that respect. I need the Minister’s reassurance, because it
seems to me that subsection (5) says that if there is a clash of
interests on line time between Crossrail and freight services, the
Secretary of State can overrule the ORR and say that Crossrail is a
priority and that freight must therefore take another hit. I am not
saying that he will say that, but it could happen because of the
words
“with the consent
of the Secretary of
State”.
Am I totally
wrong in that belief? Will the Minister reassure me that that is the
case?
Sir
Peter Soulsby:
The hon. Members for Northampton, South and
for Wimbledon have drawn attention to the consideration that the Select
Committee gave to the issue of freight. Some very real concerns were
expressed by the freight industry. We gave them considerable
consideration and to some extent we became expert on rail freight as a
result.
2.45
pm
It
was clear from our discussions with the promoters and the
representatives of the freight industry that there are real potentials
for conflict between freight usage on existing lines and the Crossrail
services. At the end of our consideration, we concluded that those were
not matters for which we could provide simple solutions. We were
reassured that the conversations that were clearly taking place could
ultimately lead to a satisfactory solution, but had not done so yet. It
was with that in mind that the Select Committee concluded by
saying:
“We
look to the Committee in the House of Lords to ensure that Access
Option and any other remaining issues relating to the freight industry
are adequately
evaluated.”
That gives a
clear signal to the Committee in the House of Lords to return to
certain issues and that there are potential conflicts between freight
and Crossrail that need to be resolved.
With that in mind and with the
clear steer that I hope the Select Committee gave to our equivalent
Committee in the Lords, I suggest that although it is tempting to seek
to amend the Bill here in Committee and to try to do so in a piecemeal
fashion to accommodate the needs of freight, it would be more sensible
to recognise that the matter will be considered elsewhere. I hope that
the Bill will then come back with the conflicts resolved in a form to
which the Commons can give approval at a later
stage.
Mr.
Harris:
It will come as no surprise to the hon. Member for
Wimbledon that I cannot support his amendment. I draw his and other
Members’ attention to my letter of 7 November, copies of which
are available in the room and in which I explained in some detail why
the railway clauses are needed at this stage to protect the ability to
operate sufficient Crossrail services to secure the public benefits of
the project.
The amendment would undermine
that. To explain, as I did in my letter, I need to set the amendment in
the context of what the railway clauses are trying to achieve. By way
of background, access to the existing Network Rail network is subject
to the approval of the ORR. In reaching decisions, the ORR weighs a
range of general duties under section 4 of the Railways Act 1993.
Access contracts are then granted for periods of up to 10 years, or
longer in exceptional cases. These contracts then give priority in
bidding for train paths in the national railway timetabling process.
Once granted, access rights can be flexed and motivated under the
network code—for example, to facilitate maintenance of the
railway—but are normally not
rescinded.
The
Crossrail project affects the Network Rail network in the construction
phase because there will be works on the network itself. Crossrail
services will then run on it. The long title of the Bill makes it clear
that Crossrail is a transport system running between Maidenhead and
Heathrow via central London to Shenfield and Abbey Wood. Through
services are not an optional extra, but they are key to securing the
public benefits of the Crossrail project. The intention is that Network
Rail will continue to own and operate the railway under ORR’s
regulation and Crossrail services will share capacity with other
operators. This means that the regulation and the role of the ORR are
necessarily central to the delivery of the Crossrail project.
Although the ORR currently has
many but not all of the necessary powers in the Railways Act 1993 to
enable the delivery of Crossrail, there can be no certainty that future
decisions would enable Crossrail to be constructed and operated as
intended. This presents a problem because, in considering the project
in the context of a hybrid Bill, Parliament should be confident that
the relative importance that it and the Government place on Crossrail
services and that has been the basis for promoting the Bill should be
translated into a real train pattern.
Parliament then grants the
necessary outline approvals and powers for the Secretary of State, with
approval of details as necessary left to other bodies. This approach
should apply just as much to access to the railway network as it does
to compulsory purchase and planning approval. There is a real,
practical issue at stake here: £16 billion cannot be spent
without being sure that the necessary construction activity can be
undertaken on the network and that a train service will be allowed to
operate that delivers the public benefits that justify the
investment.
To give
the necessary assurance on the delivery of the service, the Bill
provides that the ORR will have certain duties in relation to Crossrail
that override its existing general duties. However, that will not
affect the ORR’s role on safety and fair charging. The Secretary
of State will play a part in establishing the overriding duty, notably
by specifying the minimum level of Crossrail services. The
specification will take into account the relative importance of
Crossrail services and the interests of other rail users. That builds
on her existing role in which she has a considerable say in the
utilisation of the network because she specifies franchised passenger
services.
The
ORR’s overriding duty and the Secretary of State’s
role—which is hers alone and cannot be devolved to the Greater
London authority or Transport for
London—are strictly limited to Crossrail purposes. They should
also be regarded not as setting a precedent. A hybrid Bill for a
£16 billion rail project that is dependent on access to the
existing network, if not unique, will, I expect, be very
rare. These
railway clauses are largely reserve powers. The intention is to use
existing rail industry processes where possible. For example, an
application was made in July to the ORR by the Secretary of State and
Network Rail for approval under the Railways Act 1993 of an access
option that would grant access rights for Crossrail services. The
ORR’s decision is not expected until the new year. It would be
premature to cut back the Bill’s powers before that decision is
known. However, that should be in time for consideration of the Bill in
the other place, at which point those rail powers could be rescinded,
depending on the result of the application for the access
agreement.
I turn to
the detail of the amendments. Clause 23 deals with the interim period
between Royal Assent and Crossrail becoming operational. Its intention
is to ensure that Crossrail passenger services—in effect
services going through the cross-London tunnel—can use the
overground network and be integrated with it. Once operating at the
minimum levels for Crossrail passenger services specified by the
Secretary of State, the clause should ensure that the ORR does not
grant inconsistent access rights that run beyond the start of the
prospective principal Crossrail passenger services or conflict with
them. That is a sensible advance planning measure to reduce the risk of
conflicting access rights being granted that need to be removed once
Crossrail services come into
operation.
The result
of amendment No. 39 would be that while the ORR would receive the
Secretary of State’s specification of the minimum level of
Crossrail services, that would form only the basis of the overriding
duty. The ORR would also have to consider whether commercial freight
requirements have been met. There would be little point in having such
an overriding duty, over and above the application of the ORR’s
general
duties.
Although
a great deal of work has been done on dovetailing Crossrail services
and freight needs, there could ultimately be a conflict. If that arose,
it would have the potential to threaten the Crossrail project. As I
have already said, if a minimum level of Crossrail service is not
accommodated, the public benefits will not be realised that justify the
investment in the project. One cannot start construction simply in the
hope of gaining the necessary access rights at some indeterminate point
in the future. Clause 23(5), which amendment No. 40 would delete, is
needed to provide flexibility for the Secretary of State to consent to
the ORR not applying its overriding duty in relation to Crossrail
services that make use of the
tunnel.
In
conclusion, although I entirely accept that the needs of freight are
important, they have been given careful consideration at the project
development stage, in the hybrid Bill process and in the current
applications before the ORR. The amendment is a step too far because of
the potential damage to the delivery of the Crossrail project. I hope
that the hon. Gentleman will consider withdrawing
it.
Stephen
Hammond:
I have listened very carefully
to the Minister’s lengthy response to the amendments and to the
hon. Member for Leicester, South. I think that there is a general
concern about freight and I take the point entirely that the other
place should look at the issue. If there is a need to bring back
general provisions across the Bill to ensure that freight is protected,
it would be appropriately done in a unified, rather than a piecemeal
way. However, I think that the Committee has to bear the issue of
freight in mind in the passing of the Bill.
It was certainly not the point
of the amendment to affect the minimum service required by Crossrail
merely to provide a sub-requirement on the ORR with regard to freight,
and I think that the Minister understands that. Having listened to the
hon. Member for Leicester, South and the Minister, and with the
knowledge that the interests of freight will also be looked at in the
other place, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Stephen
Hammond:
I beg to move amendment No. 41, in
clause 23, page 15, line 1, after
‘may’, insert
‘, no later than 6 months after
the commencement of commercial services on the Crossrail
network,’.
As
the Minister rightly said, the clause deals with the interim period
between Royal Assent and the commencement of passenger services.
Subsection (7) gives the Minister the power to extend the so-called
interim period. The implication of such a move, as I understand it,
will be to lengthen the term during which the ORR’s independence
is restricted by the terms of the clause.
The amendment is designed to
put a time limit on the interim period, and hence on the time during
which the ORR is required to favour Crossrail in situations where it
might otherwise not. Once services are operational, should they
continue to have a preferred status at other parts of the network at
the expense of other passenger services?
Access contracts are clearly of
particular importance during the construction of the railway line. The
ORR will be obliged to follow the terms of the Bill and carry out its
duties in a manner so as to facilitate Crossrail services. However,
such an obligation does not need to be duly extended beyond the
completion of the construction phase, and that is why I have proposed
putting a time limit of six months on the so-called interim period.
That seems to be timely and rational.
Mr.
Harris:
The amendment would affect the Secretary of
State’s ability to extend the so-called interim period, as the
hon. Gentleman has said. That is the period between Royal Assent and
the first use of Crossrail passenger services. In that period, the ORR
has an overriding duty in the exercise of its access contract functions
to facilitate the operation of the prospective services.
The Secretary of State might
need to extend that period. For example, the Crossrail services are
expected to be phased in over a year, as was stated when the funding
announcement was made in October. For a new railway service of the
scale of Crossrail, it would be unwise to attempt to introduce
overnight the full
service to all destinations. With regard to access planning, it makes
sense for the ORR not to grant access rights that would frustrate the
phasing in of services over that period. Once the Crossrail service is
fully in operation, it will have been granted the appropriate access
rights and Network Rail and the ORR would not then grant conflicting
access rights. Therefore, even if extended, the interim period has a
finite and useful life because of the protection that the clause
affords. Should the Secretary of State need to extend the interim
period, my expectation is that she would decide to do so within six
months of the commencement of commercial services, as the amendment
proposes. My concern is that an arbitrary deadline of six months would
not account for the unexpected and might be problematic.
There is, however, quite a lot
of sense in the argument that the hon. Member for Wimbledon has put
forward. If he is willing to withdraw the amendment, I intend to keep
it under advisement.
Stephen
Hammond:
I am grateful to the Minister for those words. He
has clearly understood the thrust of the amendment and from where it is
coming. I have listened carefully to what he has said. If the interim
period needs to be flexible because the phasing in of Crossrail
services needs extra protection, that seems entirely appropriate. I
look forward to discussing with him, perhaps in the period between the
conclusion of the Committee’s proceedings and Report, some way
of keeping that issue under review. I therefore beg to ask leave to
withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause
23
ordered to stand part of the Bill.
3
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