Examination of Witnesses (Questions 4000
- 4019)
4000. CHAIRMAN: Well, that would be on
re-committal.
4001. MR ELVIN: Well, in the Commons
the opportunity would have arisen to seek amendments or to vote
against the principle of the Bill, and there are procedures in
the Bill process for dealing with matters if Members of either
House wish to have an alternative promoted.
4002. CHAIRMAN: I quite agree, but we
are now dealing with it in this House.
4003. MR ELVIN: But, my Lord, that is
not what we are dealing with. What we are actually dealing with
is a point of law which says that, because we have not given an
account of the alternatives which have been studied, that is,
historically studied, there is a flaw in the ES. This is not about
questions of the principle of the Bill and whether you should
consider alternatives now. This is whether there is a formal,
legal defect in the Environmental Statement because we did not
include something in it which was done in the past. It has nothing
to do with future process and it has everything to do with whether
we have given a proper account in the Environmental Statement
of those alternatives which were main alternatives and which were,
as a matter of fact, studied, so, my Lords, it has nothing to
do with—
4004. CHAIRMAN: That may be right. I
would like to think about it.
4005. MR ELVIN: I appreciate that, and
I am going to put it in writing as well.
4006. CHAIRMAN: The difficulty is that
Parliament is the local planning authority.
4007. MR ELVIN: Well, it is more than
that in fact.
4008. CHAIRMAN: Yes, I know it is, but,
among other things, it is the planning authority.
4009. MR ELVIN: Yes. It is for Parliament
to choose whether or not to accept the principle of the Bill and
it is for Parliament to choose whether to make any amendments
to the Bill.
4010. CHAIRMAN: Exactly.
4011. MR ELVIN: Parliament is sovereign
in this matter, subject only to such restraints as it accepts.
4012. CHAIRMAN: And it is not justiciable.
4013. MR ELVIN: That is not absolutely
true, my Lord, I am sorry to say. My learned friend is absolutely
right that, if there is a legal failure in the environmental assessment
process, the Act can be reviewed in the courts.
4014. CHAIRMAN: Can it?
4015. MR ELVIN: Yes. I was in a case
in the Court of Appeal called Crown v Durham County Council ex
parte Huddleston and I appeared for the Secretary of State where
the Court of Appeal quashed part of the Planning & Compensation
Act, or did not quash it, but held it illegal because it did not
properly comply with environmental assessment procedures.
4016. CHAIRMAN: That is news to me.
4017. MR ELVIN: Mr Taylor, who sits next
to me, was on the other side! He may grin now, but I have had
my revenge in subsequent years! It is absolutely right, as Mr
Horton says, that, because it is a European issue and, therefore,
the question of the European Communities Act comes into play,
there is an issue, but it does not matter for these purposes;
the point of law is the same.
My Lord, my first point, and I will put this
in writing, is that there is no duty to consider alternatives.
The duty is to give an account of those alternatives which have
been studied by the developer. Therefore, you have to say, "Well,
what were the alternatives?" Look at Article 5 again, if
you would, my Lords and my Lady. We now go on to the main alternatives
and you have to ask yourself, "Alternatives to what?"
Well, the alternatives must be to the project because it is the
project which is subject to assessment and you can see in Article
5(1) the case of projects which, pursuant to Article 4, must be
subject to an environmental assessment. The project is not the
stretch of line between Liverpool Street and Whitechapel. The
project is Crossrail, that is to say, the project as defined by
the Bill, so the main alternatives must, as a matter of commonsense
and purpose of the provision, be the alternatives to Crossrail,
so main alternatives have to be judged in the light of the project.
If your Lordship thinks about this, of course if this duty were
to apply to parts of projects, the duty to set out a consideration
of alternatives would be almost never-ending. You can imagine
that every stretch of this line has been through a process of
consideration and refinement over the years and the main alternatives
were initially brought together and looked at by Adrian Montague
when he analysed the business case for the Government in the Montague
Report. The main alternatives which then came forward are given
an account in chapter 6 of the Environmental Statement. Can I
just show your Lordships what the main alternatives are just so
that you have a flavour? It is chapter 6 of the very first Environmental
Statement of February 2005 and perhaps we could have put up a
couple of plans just to show your Lordships and my Lady. It is
page 117 first please.[11]
You will see that this is the first part of the alternatives.
It is the central route options that were considered and these
were the main alternatives, not every single alternative.
4018. The western route options appear at figure
6.2 and, again, these are what were regarded as the main alternatives
on the western route, and you can see that there were a wide variety
of options considered.[12]
4019. Then on the eastern options you will see
again the main alternatives set out.[13]
It does not go into micro detail over each and every single stretch
of track between each and every station. These are the main alternatives
to the project, which were given an account in the Environmental
Statement in chapter 6 and which we say plainly constitute the
main alternatives to the project.
11 Crossrail Ref: P23, Central London Route Options
(LINEWD-ES08-011) Back
12
Crossrail Ref: P23, Western Route Options (SCN-20080312-012) Back
13
Crossrail Ref: P23, Eastern Route Options (SCN-20080312-013) Back
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