Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 4480 - 4499)

  4480. CHAIRMAN: I am looking at a document called "Crossrail Bill—House of Lords Select Committee. Week 4: Spitalfields Petitions".

  4481. MR ELVIN: That is correct.

  4482. CHAIRMAN: The pages are numbered this time.

  4483. MR ELVIN: I always number my pages. Your Lordships will recall some earlier submissions I made—which 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 yesterday.

  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 reading—and it is of some length—[1]

  4486. CHAIRMAN: It is in the back of my car.

  4487. MR ELVIN: I find it very useful for keeping doors open! The important thing is that, as part of the EIA process—these were the consultation responses—this 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 them—so at least some members of the House had looked at it. It contains all the letters from the Spitalfields Petitioners—and I have given you footnote references to Appendix F where the letters are provided in exact photocopy form—raising on many occasions the southern alignments issues. The issue of the alternatives—the 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 alignment—was 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 itself.

  4488. CHAIRMAN: The same applies to this House.

  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?"[2] 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.[3] 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 Directive—which 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 Assessment Directive.

  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 says—and 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

2   Crossrail Ref: P26, What is the obligation under the EIAD with regard to the alternatives? (SCN-20080313-003) Back

3   Crossrail Ref: P26, What is the obligation under the EIAD with regard to the alternatives? (a) No obligation to study alternatives (SCN-20080313-004) Back

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