Examination of Witnesses (Questions 4480
4480. CHAIRMAN: I am looking at a document
called "Crossrail BillHouse of Lords Select Committee.
Week 4: Spitalfields Petitions".
4481. MR ELVIN: That is correct.
4482. CHAIRMAN: The pages are numbered
4483. MR ELVIN: I always number my pages.
Your Lordships will recall some earlier submissions I madewhich
I have repeated on the preceding two pages. The Environmental
Impact Statement is not just the Environmental Statement; it is
the Environmental Statement plus the responses of consultees who
give their own views. You will recall the quotation from Sullivan
J in the Blewett case, which I have repeated on the bottom of
page 2 and going over to page 3.
4484. CHAIRMAN: You told us about this
4485. MR ELVIN: Exactly, which is why
I am not going over it again. The important point to note in this
context, my Lords, is that there were many responses from the
Spitalfields area Petitioners making submissions to Parliament
as part of the EIA process on the southern alignments. If you
look, for example, at paragraphs 8, 9, 10 and 11, I explain to
your Lordships how the Command Paper that was lodged before second
readingand it is of some length
4486. CHAIRMAN: It is in the back of
4487. MR ELVIN: I find it very useful
for keeping doors open! The important thing is that, as part of
the EIA processthese were the consultation responsesthis
was laid before Parliament. Indeed, I was delighted to see when
watching second reading that many Members of Parliament had copies
and they not only had copies but they were copies with post-it
notes in themso at least some members of the House had
looked at it. It contains all the letters from the Spitalfields
Petitionersand I have given you footnote references to
Appendix F where the letters are provided in exact photocopy formraising
on many occasions the southern alignments issues. The issue of
the alternativesthe allegation that there had been a failure
to consider the alternatives, the allegation that there should
be a southern alignment in Spitalfields rather than the Bill alignmentwas
fairly and squarely before the House of Commons before the principle
of the Bill was approved at second reading. Of course, that Command
Paper has remained before Parliament ever since, so it is not
right to start from the contention that the issue of the southern
alignments was not before Parliament, because Parliament was asked
to consider it as part of the Environmental Impact Statement process
4488. CHAIRMAN: The same applies to this
4489. MR ELVIN: The date of the report
is July 2005. It has been before Parliament ever since. 4490.
I turn to the provisions of the Directive on page 4, paragraph
14, and refer to the insignificance of Option B. I will come back
to that in a moment. 4491. The legal structure of the Directive
I deal with on page 4, under "What is the obligation under
the EIAD with regard to the alternatives?"
I would refer you to Article 5, which you saw yesterday, and Article
2, and I remind you of the language. It is: " ... an outline
of the main alternatives studied by the developer." That,
we say, is a clear reference to the outline of the main alternatives
which were, in fact, studied by the developer. If Mr Horton accepts
that this was not regarded as a main alternative and not studied
as such by the developer, then, absent a legal duty to go further,
his case collapses at that point.
4492. It is right to say that there is no duty.
I deal with this at some length, knowing it was going to arise
again this morning, and it starts on page 5, paragraph 20.
There is no obligation to study alternatives. The obligation is
to provide an outline of the main alternatives "studied by
the developer" which must mean those which have, in fact,
been studied. We say that is a question of fact and judgment.
4493. The correctness of this interpretation
is supported by clear use of the past tense. I apologise for going
into French, but I looked at the French language version of the
Directive which has equal legal force and you will see the clear
use of the past tense: " ... qui ont été
examinées par le maitre d'ouvrage ... " Clearly
it is a reference to the past tense which supports the approach
that I say is the correct approach to the English language version.
It means "the ones which have, in fact, been studied".
4494. CHAIRMAN: That is the contrast
to the English "studied".
4495. MR ELVIN: Yes, but it shows you
that "studied" means "has been studied".
4496. In paragraph 22 I have also drawn your
attention to another Environmental Assessment Directivewhich
only deals with plans and policies, it does not deal with projects.
It is called a Strategic Environmental Assessment Directive and
it does contain an express duty to consider alternatives and not
merely give an account of the ones that were carried out. I have
quoted the language the Commission used in framing the Directive
where there was a duty to evaluate alternatives. You see that
in paragraph 22:. "Where an environmental assessment is required
... an environmental report shall be prepared in which ... . reasonable
alternatives taking into account the objectives and the geographical
scope of the plan or programme are identified, described and evaluated."
If the EU wishes to impose a legal obligation to evaluate alternatives
it is perfectly capable of doing so.
4497. Could I remind you that, in one of those
ways that often happens, I have missed out a critical "not"
in that paragraph. Five lines down paragraph 22 it should read
"Plans and policies and not projects". Projects are
dealt with by the Environmental Impact Assessment Directive but
the more strategic aim of plans and policies and programmes is
dealt with by the other Directive.
4498. My Lords, we have a clear instance there
where the Commission in the Environmental Assessment sphere has
enclosed an obligation which does not apply to our Environmental
4499. Neither the terms of that Directive, having
regard to its purpose, nor any decision of the European Court
or the UK courts support the submission that there is a duty to
carry out a study of alternatives. Indeed, I found the passage
in the Arsenal case to which I referred you yesterday which
exactly supports this. Ouseley, J saysand this can be found
in paragraph 24"In any event, the Regulations are
quite clear. What needs to be covered in the Environmental Statement
are the alternatives which the developer has considered. This
the Environmental Statement did. The Regulations do not require
alternatives which have not been considered by the developer to
be covered, even though the Local Planning Authority might consider
that they ought to have been considered." It could not be
clearer. It is exactly the point which Lord Brooke made.
1 Crossrail Ref: P26, Was the issue of the southern
alignments raised as part of the EIA process? (SCN-20080313-001) Back
Crossrail Ref: P26, What is the obligation under the EIAD with
regard to the alternatives? (SCN-20080313-003) Back
Crossrail Ref: P26, What is the obligation under the EIAD with
regard to the alternatives? (a) No obligation to study alternatives