Examination of Witnesses (Questions 300
- 319)
300. LORD BROOKE OF ALVERTHORPE: It may
not have been awful.
301. MR MOULD: If I can step in here,
if the works which have given rise to your mental deterioration
have been carried out with all due care and attention, you would
have no claim. If the works had been carried out negligently—a
complete or significant failure to follow accepted practices set
out in the Construction Code, or something of that sort—then,
in principle, you may have a claim. I say "in principle"
because it may depend on the degree to which the damage which
you claim to have suffered is one which would be recoverable under
ordinary legal principles, in any event. The distinction is between
the works being done properly or have the works been done negligently?
In the first case, no, in the second case, yes.
302. LORD BROOKE OF ALVERTHORPE: I am
thinking of a case where the noise so disturbed Lady Fookes' dog
that the dog had fits and, in turn, her state of health was disturbed
because of the worry and concern about the dog—which is
quite conceivable.
303. MR MOULD: Indeed so, and in a case
where Lady Fookes was living in a house which was alongside a
worksite for Crossrail but none of her land was actually acquired
by the Promoter for that worksite, then provided that the works
that were being done in that worksite were carried out with all
due care and attention, the position would be that Lady Fookes
would not be entitled to make any claim.
(Mr Smith) Could I add, though, I think what may be possible
is that—and it really depends on the noise policy that you
have heard about—you may be entitled to, obviously, something
like double-glazing—mitigation works—to lessen that
impact. That is something that we would look at in accordance
with the noise policy.
304. BARONESS FOOKES: My Lord Chairman,
I am still concerned about the recoverable loss, including "business
disturbance". It does not seem to me that it equates with
those general principles which you set out before us initially.
(Mr Smith) It actually does because, unfortunately, we have
little rights as normal owners where no land is acquired to claim
such losses from a neighbour who is redeveloping. All compensation
does—it is equivalent to your rights were it a major developer
who is developing adjoining your property. It is just the same
rights in land compensation.
305. BARONESS FOOKES: There is no suggestion
that a statutory authority ought to work to higher standards then?
It is the lowest common denominator.
306. MR MOULD: The same denominator,
I think, is the point. However, we should make it clear—and
this was a point that Mr Smith emphasised on his penultimate slide,
I think (perhaps we can go back to slide 23, please)—and
remind your Lordships of what we say here: part of the bargain,
if you like, that we have is that we should actively seek to avoid
or minimise the kind of disturbance that my Lord, Lord Brooke,
raised through the way in which we carry out the works.[23]
These provisions that we have referred to—the Code of Construction
Practice (about which your Lordships will no doubt be hearing
more during the course of the Petitions), the noise insulation
works that Mr Thornely-Taylor mentioned in his presentation yesterday,
arrangements to assess and control land settlement, which Professor
Mair will be telling you about in a few moments' time, and general
arrangements for construction activity—are all intended
to keep to the minimum the sort of situation that your Lordships
are asking questions about at the moment. Whilst I said that the
legal position is that there is no higher standard placed upon
those who are executing public works, the practical position is
that the standards that we are imposing upon ourselves and will
require the nominated undertaker to abide by, under the terms
of the Code of Construction Practice and other related matters,
are intended to be the highest standards that can reasonably be
achieved under current working practices. So we are seeking to
apply, in practice, very high standards indeed.
307. CHAIRMAN: Mr Smith, I think a classic
example of Lady Fookes' problem is when you have a roadside garage
and the highway authority compulsorily acquires land not part
of the garage but near it in order to realign the highway and
this wrecks the trade of the garage. There is no compensation.
(Mr Smith) There may not be, depending on the circumstances.
I am giving it to you as it is, my Lord.
308. That is just a tough situation.
(Mr Smith) Absolutely, yes.
309. MR MOULD: I think we had gone back
from slide 25, and we have covered slide 25.[24]
(Mr Smith) Yes, I think we have.
310. We are moving now from the position as
regards neighbouring property during the course of construction
to the position in relation to properties of that character once
the works have been completed and we are into the operation of
the railway itself.[25]
(Mr Smith) Yes. Here, qualifying owners, and
that is residential owner-occupiers or, if I can call it, small
businesses, which have a rateable value of £29,200 or less—generally
speaking the compensation legislation looks to protect the residential
owner-occupier and small businesses (this is a recurring theme).
However, these owners can claim a loss in value from the use of
the works if they adjoin it but they have no land acquired for
that purpose, after those works are open, and the loss can arise
from either the use or intensification of the use of, in this
case, the railway. As I say, it is assessed one year after the
opening of the railway, and what is payable is a loss due to physical
factors such as noise, lighting or vibration. This is generally
assessed by surveyors on a "before" and "after"
basis, assuming no scheme and then assuming the scheme, and then
looking at the difference, which is the depreciation. So neighbouring
properties do have the right to claim for loss due to the use
of the works—the operation.
311. CHAIRMAN: Is this part of the 2004
Act?
(Mr Smith) No, actually, this was brought in as long ago
as 1973, my Lord.
312. Was it?
(Mr Smith) Yes. It is quite an old provision. Thank you.
Moving on to advance purchase or reverse compulsory purchase—whatever
one calls it—this is called a blight notice.[26]
These are properties which are earmarked for acquisition within
the safeguarding limits of the scheme. The whole premises are
required, and they are significantly devalued by the existence
of the proposed scheme. Normally, an owner could demonstrate that
they cannot be sold very easily. In these cases, again, the legislation
refers to residential owner-occupiers and small businesses as
qualifying premises, and where these owners are in occupation
of these premises then (going to the next slide) those owners
can serve what is called a blight notice upon the acquiring authority
and require the property to be acquired under compulsory purchase
in advance.[27]
For example, Crossrail has not started, but if someone complying
with this can serve a blight notice because their premises are
so affected and they qualify, they can require the premises to
be bought now rather than wait for the scheme to come about. Compensation
is assessed as previously discussed—so it is assessed under
the code—but the slight difference here is that the valuation
date is the earlier of when terms are either agreed, if in dispute
when decided by the Lands Tribunal, or, if it is not determined
by the time the land is entered for the works, then when the land
is entered for the works. It is one of those three and it should
be the earlier of either of those three dates.
313. Just to make a point, "blight"
is a word that is generally used to describe people's properties
that are affected in some way by public work. I just want to emphasise
that "blight" is used very broadly; we call it "generalised
blight" when people talk about blight. "Statutory blight",
as we have described it, is more narrowly defined within the safeguarding
limits and within qualifying premises, but it does give these
people and these owners the right to ask for their premises to
be acquired in advance.
314. MR MOULD: Then we turn on just to
touch on the provisions in the Bill regarding temporary acquisition.[28]
(Mr Smith) Very quickly, an example of temporary
acquisition is where one goes on to land to do works of a temporary
nature, such as repairing or doing works of improvement to a bridge,
or something, and they come in and out but the land is not changed
materially in nature. Under the Crossrail Bill, compensation is
payable to owners and occupiers covering any loss suffered due
to the exercise of those powers. So their losses are broadly covered.
315. Finally, we are going to touch on three
policies, which the Promoter has had in place, which relate to
the topic of land compensation. Firstly, land acquisition policy.
(Mr Smith) I think the most important thing on the policy
for land acquisition is the first bullet point shown on this slide—the
Crossrail policy—which states that only the land needed
for the works is purchased.[29]
That is an important point to make; that Crossrail is not seeking
to acquire wider land. Obviously, when one looks at that, one
has to be reasonable in interpretation that the engineer can build
the works on the land there at a reasonable cost, but it is just
the land needed for these works, all things being equal, that
is required. The acquisition policy sets out that compensation
is payable in accordance with the framework, and, also, indicates
how different sites will be treated. Firstly, for those working
sites that may not be materially changed in nature, as previously
described they may be temporarily occupied as a car park and returned
as a car park, Crossrail would, if required there, seek to agree
a lesser temporary right with the owner, not acquiring more than
it needs. If, however, Crossrail acquires working sites which
materially change the site and nature, and, also, probably wants
to build works on them of some permanent nature, then, generally
speaking, they would seek to acquire the freehold of that property
in order to construct those works. That is a very quick run through
of the land acquisition policy.
316. The latter would relate, for example, to
shaft sites.
(Mr Smith) A shaft or a station site, yes, absolutely. There
is a land disposal policy which is just one step beyond acquisition,
but it is worth pointing out that Crossrail does require land
but some of that land is not needed in the long term for the scheme.[30]
Examples of this could be parts of worksites where, for example,
a shaft is constructed on part of a site. Another example is an
air space above a new station. New stations are being built underground
but all the air space above those stations will not be required
long-term for the project. They will need to be controlled but
they will not be needed for the project. Crossrail has set out
in their land disposal policy a process whereby qualifying owners
who express interest in the site released, and have the required
experience, expertise and track record, can be offered the opportunity
to re-purchase that site. Before we go on, this is a typical example
of a development above a station, but the point I want to emphasise
here is that very often developments above a station will be supported
by that station.[31]
So we have the works of Crossrail holding up a future development.
That is important because, with the Crossrail works, the engineer
is designing for a life of 125 years and what we have to consider
is what happens when the development needs to be renewed and what
happens when the infrastructure needs to be renewed.[32]
In the terms of any offer back of such developments where they
are above stations and taking support from Crossrail, generally
those developments will be disposed of via a lease controlling
that development and, normally, for a period of 125 years consistent
with the design life of the structure, so that it allows for planned
renewal of the infrastructure in a safe manner. This is what is
described in that policy. The policy also enables prior collaboration
agreements to be entered into in line with this broad policy on
sites in single ownership. We have five agreements at the moment
that may be referred to your Lordships, where we are working with
existing landowners who will be offered the opportunity to buy
the site back afterwards, but it does make sense in integrating
the design at an early stage so that everything fits, and there
are definite benefits in doing this. That is a very quick run
through of the land disposal policy.
317. Finally, the hardship policy.[33]
(Mr Smith) Yes. I think this can be described
as despite fair compensation, as was described, it is inevitable
when lines are drawn that hardship will arise. We cannot always
anticipate it but, as a result, Crossrail has put forward a hardship
policy. This broadly says that where an owner can demonstrate
that their property is not earmarked for acquisition but they
have a qualifying interest—in other words, they are a residential
owner-occupier or a small business—and enjoyment of their
property is seriously affected and there is also a compelling
reason to sell (it could be, for example, a divorce, or it could
be ill-health, or it could be the scheme itself—it could
be that the sheer impact of the scheme is so overwhelming that
that is a compelling reason to sell) and that every effort has
been made to sell and the property cannot be sold, and we put
a discount of at least 15 per cent, which is fairly material,
if that is due to Crossrail—in other words, we have an owner-occupier
seriously impacted by the works—then Crossrail will, under
the hardship policy, seek to acquire that interest and pay the
full open-market value, independently assessed (not assessed by
Crossrail), again, ignoring the impact of Crossrail.[34]
Also, the payments to the owner can include disturbance and home
loss, as previously described. So there is a catch-all, just to
say, for the point you raised, my Lord, about the problem for
neighbouring owners. There is a catch-all in the hardship policy.
We have tried to come forward with something that will give relief,
although it is not always easy to anticipate where that problem
will arise.
318. LORD BROOKE OF ALVERTHORPE: Have
you had any such claims?
(Mr Smith) We have had one.
319. MR MOULD: We have had more than
one.
(Mr Smith) We have had a number of claims.
23 Crossrail Ref: P6, Construction-No land acquired
Neighbouring Property (LINEWD-XR3-023) Back
24
Crossrail Ref: P6, Construction-No land acquired Neighbouring
Property (continued) (LINEWD-XR3-025) Back
25
Crossrail Ref: P6, Use of Works-No land acquired Neighbouring
Property (LINEWD-XR3-026) Back
26
Crossrail Ref: P6, Compulsory Purchase-Advance Purchase-Blight
Notices (LINEWD-XR3-027) Back
27
Crossrail Ref: P6, Compulsory Purchase-Advance Purchase-Blight
Notices (LINEWD-XR3-028) Back
28
Crossrail Ref: P6, Compensation Temporary Acquisition of Land
(LINEWD-XR3-029) Back
29
Crossrail Ref: P6, Crossrail Land Acquisition Policy (LINEWD-XR3-030) Back
30
Crossrail Ref: P6, Crossrail Land Acquisition Policy (LINEWD-XR3-031) Back
31
Crossrail Ref: P6, Development above a station (LINEWD-XR3-032) Back
32
Crossrail Ref: P6, Crossrail Land Disposal Policy Application
(LINEWD-XR3-033) Back
33
Crossrail Ref: P6, Crossrail Hardship Policy (LINEWD-XR3-034) Back
34
Crossrail Ref: P6, Crossrail Hardship Policy (LINEWD-XR3-035) Back
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