Examination of Witnesses (Questions 3840
- 3859)
3840. MR ELVIN: The typed underlining,
yes. The handwritten underlining is not mine.
3841. MR HORTON: "It is inevitable
that those who are opposed to the development will disagree with,
and criticise, the appraisal, and find topics which matter to
them or which can be said to matter, which have been omitted or,
to some minds, inadequately dealt with. Some or all of the criticism
may have force on the planning merits."
3842. I, of course,—
3843. CHAIRMAN: Go on. See what the learned
Judge said.
3844. MR HORTON: Certainly. " ...
that does not come close to showing there is an error or law on
the planning authority's part in treating the document as an Environmental
Statement or that there was a breach of duty in Regulation 3(2)
on the local authority's part in granting permission on the basis
of that Environmental Statement."
3845. My Lords, I did not go on because I was
about to say that I do not dispute that, as such, although Mr
Justice Ouseley, of course, might—one never knows—on
a future occasion find that a higher court or another judge did
dispute it, but for my purposes before this Committee I do not
dispute that, for this obvious reason (which my Lord, Lord Chairman
certainly will have a lot of familiarity with from days gone by):
that if you take the ordinary situation of a planning inquiry
or a motorway inquiry there can be an Environmental Statement
into the Promoter's proposal or the developer's proposal, and
they, at first blush, can select alternatives, if any, which they
choose to examine and present in the Statement. In due course,
an objector can come to the inquiry and say: "Please consider
a different alternative", and, up to a point, may get a hearing.
For example, in motorway inquiries, it used to be common-place,
when there were many, that they would be taken up, in part, with
not just considering the published route but with alternatives
to that alignment put forward by objectors, in whole or in part.
3846. So there obviously is a point at which
that is the right remedy—I accept that. That, of course,
is the importance of what I will seek, with trepidation, to argue
before your Lordships tomorrow morning, because that would go
to whether or not you were prepared to listen to the merits of
an alternative, but this morning I am steering well clear of that.
3847. Of course, even, however, in relation
to that approach, it is not always the case that (for example,
at a planning inquiry) an inspector appointed by the Secretary
of State will listen to an alternative, because the inspector
may say: "I am charged with considering this proposal and,
therefore, I am not prepared to spend much time considering something
completely different." One never quite knows whether he is
going to take that line. I only emphasise that to your Lordships
because what it does is to focus attention upon what is potentially
a very dangerous lacuna (if I am allowed to use the Latin
any more) in what is meant to be protection for everybody in relation
to all schemes that merit environmental assessment. At the moment,
the situation may arise in this Committee—indeed, it does
arise, by reference to the decision which, so far, I understand
you to have taken about listening to any evidence about, for example,
Option B or any other southern alignment—where the Promoters
can say early on: "We can see that X, Y or Z might be an
alternative. For reasons of our own we only have to look at that
to know that we do not want to go near it, so we will decide early
on that it is not a main alternative; we will not study it, we
will not be obliged, therefore, to deal with it in our Environmental
Statement, and once, at any rate, in this kind of process, on
a hybrid Bill, we get to a point where the principle is decided,
Parliament (a Committee, at any rate) will not consider it, and
at best the only scrutiny, I suppose, might be Parliament itself
on the floor of the House."
3848. My Lords, you will forgive me for saying
this, some are less impressed than others about the ability of
the floor of the House to give the kind of scrutiny to that sort
of matter which will be necessary in order to form a sensible
judgment about it and that traditionally is the whole point of
the committee stage, that you can look at matters in far greater
detail than they ever can be looked at on the floor of the House.
I hope that the problem at least is well identified in that submission
where you could get a proposal as important as this which goes
through without any proper examination of what might be—I
mean I cannot put it any higher than that—a very important
alternative solution. I know you will appreciate that in Spitalfields,
where feelings run extremely high, the belief is that if the whole
fabric of Spitalfields, both physical and the community fabric,
is not to be seriously threatened, the line through Spitalfields
is wrong, so it is a dramatically important issue. As far as the
law is concerned, I hope I have demonstrated why it is important
to be very careful about whether there is any legal safeguard
so perhaps I can now move on to that.
3849. CHAIRMAN: Probably what we want
you to address is what you think we can do.
3850. MR HORTON: Yes, of course. Lord
Justice Megaw asked me a question like that once and I said, "I
think, my Lord ---", and he said, "You submit, Mr Horton",
and I have never forgotten that so I shall only be able to tell
you what I submit rather than what I personally think.
3851. MR ELVIN: He said some other things
as well.
3852. BARONESS FOOKES: We are not a law
court.
3853. MR HORTON: Do you remember it?
3854. MR ELVIN: Yes, I do.
3855. CHAIRMAN: Submit away.
3856. MR HORTON: I shall submit away.
What the Association asked me, of course, to invite the Committee
to do is to consider this legal submission and take the view that
at the moment the Environmental Impact Assessment is flawed as
a matter of law and that, therefore, it will be necessary for
further consideration to be given in particular to Option B. That
is what it seeks. It seeks that because it does not wish, as I
am sure this Committee does not wish, that a decision of that
kind should have to be made through going to Luxembourg, for example.
The delay is not desirable, we accept that. I have heard, although
apparently it did not go on Hansard, that in the House of Commons,
I think it was the Chairman of the Committee who said his job
was to get the Bill through. I am sure he did not mean it in quite
those terms, but the job is to make sure that right is done having
regard to the role of a select committee and I know this Committee
will have that in mind, but let me, therefore, concentrate upon
that legal issue. If you return please to page eight—
3857. CHAIRMAN: The response?
3858. MR HORTON: Of Mr Elvin's response,
yes, you will see the heading (C) "The Requirement to Consider
Alternatives ... ".[5]
3859. CHAIRMAN: Yes.
5 Crossrail Ref: P26, The requirement to cover main
alternatives in the Environmental Statement (SCN-20080312-005) Back
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