Examination of Witnesses (Questions 3440
- 3459)
3440. CHAIRMAN: It is not in the register
yet, all of it?
(Mr Berryman) Actually, my Lord, I am not sure whether it
is or not, I thought this one was but may not be.
3441. BARONESS FOOKES: Could we be clear
about the system? You have your various policies set out in considerable
detail. At some appropriate moment and I am not clear when this
might be, those policies are converted into undertakings, is that
right?
(Mr Berryman) They are not necessarily converted
into undertakings but they will be entered into the register of
commitments and undertakings. The undertakings are normally given
to individual parties. I am afraid I may have to ask one of the
lawyers to help me.
3442. We may be in difficulty over names of
things.
(Mr Berryman) The idea is that all of the commitments we
have made, whether it is a commitment or an undertaking, will
all be entered into the register, will be enforceable either if
it is a deed through the courts or a commitment through the Secretary
of State which was mentioned earlier by Mr Mould.
3443. BARONESS FOOKES: A commitment is
something which is derived from the policy documents and an undertaking
is something specifically given in relation to a plea from a petitioner
or petitioners?
(Mr Berryman) I do not think the definition is quite that
clear-cut because some of the commitments are contained, as you
said, in policies, but some of them are also of a more general
nature such as some of the ones given to local authorities, for
example.
3444. CHAIRMAN: On the first page of
the Register I have got there are a number of general assurances,
not given to anybody in particular, but all sorts of useful things.
Is that the sort of thing to which there are going to be additions?
(Mr Berryman) That is very likely. I have not got the list
in front of me, my Lord, but I think that is the idea, that there
will be additions to that. The basic point is that everything
which is contained in the Information Paper which constitutes
a commitment (and there are lot of things in the Information Paper
which do not constitute commitments) those things will be eventually
included in the Register of Commitments and Undertakings.
3445. There are four or five pages of general
assurances?
(Mr Berryman) Yes.
3446. BARONESS FOOKES: Is an assurance
the same as a commitment?
(Mr Berryman) I perhaps ought to get legal advice, but I
think they only differ in the way they are enforced.
3447. BARONESS FOOKES: Lawyers are good
with words so perhaps we had better hear from them.
3448. MR MOULD: I think we use the phrase
"commitments" generically. Mr Berryman is absolutely
right that undertakings take two forms: firstly, they are contractual
contracts between the Promoter and individual petitioners, which
have the force of a binding contract and are enforceable in that
way at law. The other form of undertaking that we provide is an
undertaking given to Parliament; and a number of undertakings
were given to the select committee in the other place; those are
enforceable through parliamentary processes. Any undertaking,
for example, given to this House would be enforceable under the
auspices of the Lord Chairman of Committees, as I understand it.
There is a specific procedure under the Standing Orders of this
House to deal with undertakings; it is rather different in the
Commons, and it is dealt with there on the floor of the House.
Assurances tend to be commitments, if you will, and I use that
word in an informed sense, which are given by the Promoter on
a wider basis; they are given not to individuals necessarily but
they are given to local authorities, who obviously represent the
interests of their constituents; they are given in relation to
matters that affect a number of people, organisations or institutions
along the route. Assurance is given, for example, about reducing,
so far as reasonably practicable, obstructions of the highway
system around worksites; that would be an example of an assurance
of that kind.
3449. We do have a number of provisions which
we call "policies" relating to arrangements that are
non-statutory but which the Secretary of State or the Promoter
has entered into and expressed in a public document, and there
they take effect in the usual way: that is to say, where the Secretary
of State has promulgated a policy and says that she will act in
a certain way in relation to matters, then ordinarily she and
the public are entitled to expect that she will behave in accordance
with that policy. There may be circumstances of course where exceptionally
there is some reason not to do so but ordinarily, in the absence
of any such circumstances, she would expect to behave and act
in accordance with the policy, and the public would have that
expectation.
3450. I can give you two or three examples of
that: first of all in relation to land acquisition, the Secretary
of State has promulgated a policy in relation to land disposal,
and you will recall we have referred to that; it is in one of
the C series of the Information Papers. That policy essentially
is an extension of the very well-established policy which is enshrined
in the Crichel Down Rules. The Crichel Down Rules themselves are
an expression of policy—a very longstanding one. What we
have done is we have extended this policy to a degree in order
to embrace the disposal back of land to original owners or consortia
of original owners, even in circumstances where the land itself
has been materially changed as a result of the works—something
which would not ordinarily fall within the embrace of the Crichel
Down Rules. That is something that Mr Smith explained to you in
his presentation and we may return to that in the future.
3451. Another example of policy is the Secretary
of State's policy in relation to settlement. That is set out in
Information Paper D12 and it embraces a number of things; it embraces
an assessment process which the Secretary of State advisedly has
stated is her policy to follow in relation to the assessment of
settlement. Mr Berryman has explained that we have got a little
way down the implementation of that process, but by no means to
the end of it; further work will be done between now and 2012
or 2013 when the tunnel-boring machines are making their way beneath
Spitalfields. It also embraces monitoring both before, during
and after the construction of the tunnels.
3452. It embraces another matter we have touched
on today the preparation of schedules of defects to identify pre-existing
defects within properties, and thereby to assist the process after
the works have been carried out of identifying any defects which
have resulted from the works themselves and therefore fall to
the Promoter to remedy at the Promoter's cost.
3453. It embraces the commitment to make good
damage caused by the construction of the railway and through the
impact of ground settlement. It also lays the groundwork for the
settlement deed, for property owners who fall within the class
that I have described to call for and to enter into a direct contract
with the Promoter so as to be able to secure through direct contract
the operation of that policy in relation to their building. There
is a specimen Settlement Deed attached to Information Paper D12
so the Committee and those affected are able to see what its ingredients
are and how it may protect their interests and the interests of
their building in the event that they call for it.
3454. I do stress this, it is not necessary
to enter into the Settlement Deed in order to enjoy the advantages
of the settlement policy and its ingredients; those will be brought
to bear in favour of and for the protection of properties affected
by ground movement due to the construction of the railway whether
or not a Settlement Deed is called for. The mechanism whereby
those processes are secured is through the action of the Secretary
of State who will put in place contractual arrangements with the
nominated undertaker and who, in advance of that, will continue
to require that her policy is complied with in the continuing
work of settlement assessment, monitoring and so on and so forth.
She is ultimately responsible to Parliament and, indeed, to the
courts for carrying out her policy in a manner which is reasonable
and proper.
3455. That is a broader explanation of the arrangements.
It is perfectly readily acknowledged a little complicated, but
I think that is perhaps unavoidable given the scale of the scheme
we are dealing with. What I can say is that these matters have
been set out in Information Papers and have been explained in
another place and it is absolutely right that we should explain
them, and I hope explain them with a tolerable degree of clarity,
to your Lordships. If there is more work to be done in that respect
then we will readily undertake it and provide any further clarity
that is required.
3456. CHAIRMAN: Mr Mould, I hesitate
to speak for Mr Wheeler, but if I was one of his colleagues and
a listed building owner in Spitalfields I would look at the Register
of Undertakings and Assurances number 240, which is at the bottom
of the page "The Promoter will also undertake an internal
inspection" and so on.[39]
Supposing nobody comes and looks at my house which has got a very
elaborate plasterwork frieze, what do I do, and it is a listed
house?
3457. MR MOULD: On the assumption that
it is a listed house which lies on plan within 30 metres of the
running tunnels, let us assume it is over the tunnel, then if
you are well advised you will have entered into a Settlement Deed.
(Mr Berryman) May I interrupt? He would ring us up and we
would arrange for such a survey to be done. If that event happened
it would only be because we had missed somebody out inadvertently,
or for some such reason.
3458. CHAIRMAN: I am sure that is all
very simple, but at the present moment we have got a commitment
to Parliament which was delivered to the House of Commons; now
we are going to have the thing repeated in this House. There was
a suggestion that what the person who is aggrieved ought to do
is to go to the Lord Chairman of Committees?
3459. MR MOULD: I should make it clear,
it is not our intention to repeat this commitment directly to
this House. The advice which we have is that, the commitment having
been given in another place, that suffices for the purposes of
ensuring that the commitment is honoured. What I am at pains to
point out—because your Lordship asked the question: what
would the individual property owner do?—it seems to me that
is in practice of greatest interest to Mr Wheeler and those whom
he represents. They do not want to come to this House or to Parliament
and to set in motion a parliamentary process. They want to be
able to say, "I've got these rights, I want them honoured.
I'm going to see somebody and point out that this is something
that should be done".
39 Crossrail Ref: P23, Extract from the Register of
Undertakings and Assurances, No. 240 (SCN-20080311-012) Back
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