Examination of Witnesses (Questions 3800
- 3819)
3800. CHAIRMAN: Is that the southern
route?
3801. MR HORTON: It is to the south of
the Bill alignment, but, actually, it is an intermediate route.
It is not as far south as C. I do have a plan. I hope that is
clear. Yes. So it is between A and C. That is the one which the
Petitioners, the SSBA, favour. My Lords, for reasons which I will
develop in a moment, the Association contends that there was an
error of law in relation to the requirements for an Environmental
Impact Assessment in failing in the assessment to have studied
that alignment and to have given the main reasons why it was rejected.
3802. CHAIRMAN: Is that what the regulations
say?
3803. MR HORTON: May I take you to the
regulations in a moment? The Directive—I beg your pardon.
3804. CHAIRMAN: No, the Directive is
one thing; the regulations are the domestic version of it.
3805. MR HORTON: Yes, that is right.
It is helpful to be able to emphasise that there is agreement
between this Petitioner and the Promoter (if I have understood
the Promoter's position correctly) that it did not regard alignment
B as a main alternative. They have made that judgment. Therefore
it did not study it, therefore it did not, in the Environmental
Impact Assessment, refer to the study (because it had not made
one) or give reasons as to why it had not studied it, because
the obligation is only to give reasons in relation to main alternatives;
it is not to give reasons in relation to an alternative which,
at the outset, is rejected.
3806. So I do not have, as I understand it this
morning, to present this on the basis that although it was a main
alternative it was not dealt with in the assessment, because it
is simpler than that: the Promoters actually assert it never was
a main alternative and therefore there was no obligation.
3807. If I may take you to the Promoter's response,
therefore, which the Committee has, it deals of course with a
number of matters in relation to this issue. My copy is not paginated,
but it is the fourth page.
3808. CHAIRMAN: They are neither paginated
nor have paragraph numbers.
3809. MR HORTON: Under the heading "Consideration
of Alternatives", may I just read this out and then comment?
"As the Promoter explained in the Select Committee in the
House of Commons ... " (miss out the next four lines) "
... the principles of environmental assessment have been followed
on Crossrail, in compliance with European law. The duty to assess
alternatives relates to the scheme as a whole and is only a limited
duty—i.e. the duty is to give 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."
3810. The Committee will see the words which
are underlined there. The passage then continues: "Those
alternatives have been assessed and are contained in Volume 1,
Chapter 6, of the ... (ES)." So there, as I understand it,
are, really, two propositions: one is that the duty to assess
alternatives relates to the scheme as a whole, and, secondly,
that, anyway, all that has to be studied and then presented with
reasons for rejection are the main alternatives.
3811. If I may take you over the page, under
the heading "Alternative alignments": "As the Promoter
explained in Select Committee in the House of Commons, the fact
that they are not reported in the main Environmental Statement
as `main alternatives' does not mean that no alternative alignments
through Spitalfields were considered. Indeed, the large amount
of information and reports on the subject that have been provided
to some Spitalfields petitioners demonstrate that alternatives
were considered."
3812. Then there is a specific reference to
this alignment B, which is on the plan before the Committee. "The
alternative tunnel alignment through Spitalfields known as `Option
B' was one early alternative to one limb of the overall project
and was not a `main alternative'." So there it is, as I stated
earlier, as clear as day: Option B was never regarded as a main
alternative.
3813. The next paragraph states: "The Promoter
investigated a number of alternative alignments for the railway
east of Liverpool Street as explained in Information Paper A1,
Development of the Crossrail Route. The location and alignment
of Liverpool Street and Whitechapel stations at either end of
this section are fixed by the need to provide interchange ...
and by the presence of deep building foundations. The alignment
between the stations is defined by the acceptable radii of curves,
which in turn are determined by the required speed of the line
and by other operational and maintenance criteria."
3814. My Lords and my Lady, it is quite right
(I do not need to take you to them) that a number of alternatives
east of Liverpool Street and south of the hybrid Bill line have
been examined. Indeed, certainly some, if not the main examination,
appears to have been pursuant to an undertaking given in the House
of Commons to undertake further examination. There is a document
(which, again, for reasons which I will explain in a moment, you
will be relieved to know I do not need to take you to, but just
to get it on the record) dated October 2007 produced by Mott MacDonald
which has been through a number of drafts—the first was
31 January 2005 and the final one was 13 October 2007—which
is called southern alignment between Liverpool Street and Whitechapel
stations. It looks at a number of lines but it does not look,
as I understand it, at alignment B.
3815. LORD SNAPE: Mr Horton, forgive
me interrupting you for a moment, but you did say when you started
your remarks that you were not going to talk about alternative
alignments, for the reasons that you outlined, although you might
do, I took you to say, tomorrow when presenting submissions on
behalf of another one of your clients. Purely for my benefit,
my Lord Chairman, just reiterate the powers this Committee has
so far as alternative alignments are concerned. If we do not have
any powers, is there really any point in us listening to what
Mr Horton said was going to be a brief opening statement—but
does not appear that way to me? Is there any point in us listening
to evidence over which we have no control, or no powers to amend?
3816. CHAIRMAN: I do not know whether
you want to call evidence about this.
3817. MR HORTON: I do not want to call
evidence about it. I am making a brief opening statement, my Lord,
and I would be grateful if I could make it without aggravating
your Lordship in that way, because it will become clear, if you
will allow me so to do. I have to set the scene in relation to
certain matters.
3818. LORD SNAPE: About the alignment?
3819. MR HORTON: I do not intend to put
any submissions before you about the merits of alternative alignments.
I need your Lordship to understand what has actually happened
in order that I may put forward what is an important point of
law, because it cannot be in the interest of this country that
this Bill proceeds on a basis which, if my submission is right,
will prove in due course to result in it being contrary to European
law.
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