Examination of Witnesses (Questions 4740
4740. I thought you were expert on this.
(Mr Schabas) I am, but, I am sorry, that
is not how I have understood alternatives analysis is normally
done and that is not how it is normally done and not what would
be considered good practice normally, but if you want to legally
4741. If that is your understanding of what
the Directive means so be it. That is fine.
(Mr Schabas) To be honest, I guess we
are waiting to see how the Directive ends up being interpreted
in a judicial review and at some point it will be interpreted,
but certainly where alternatives analysis is required in other
countries you have to look seriously at alternatives like this.
If you did not look at going straight but you did a big hook instead,
I think the courts would say, "You have ignored what is a
pretty obvious alternative and you should have looked at it",
but we will see, I guess, at some point.
4742. CHAIRMAN: We certainly will.
4743. MR HORTON: My Lord, I think I have
done it in 30 without your gracious addition.
4744. CHAIRMAN: You are doing very well,
but I have got my eye on it.
4745. MR HORTON: I think that Mr Schabas
has said all that I can ask him to say.
4746. CHAIRMAN: I do not know if Mr Elvin
has got any questions for him.
Cross-examined by MR
4747. MR ELVIN: Mr Schabas, as I understand
the points you have just made, you said that as a matter of good
practice this alternative should have been considered?
(Mr Schabas) Yes.
4748. Do you agree that as a matter of fact
it was not a main alternative which the Promoter actually studied?
(Mr Schabas) I think that comes to your
definition of a main alternative.
4749. I am sorry, do you agree it was not a
main alternative in your language --- Stop looking at Mr Horton
and answer my question. Do you agree with my proposition that
so far as you are concerned you seem to think this is a main alternative,
but it was not one which, in your view, was studied by the Promoter?
(Mr Schabas) To me it is a main alternative
to go between Whitechapel and Liverpool Street and it was clearly
not studied by the Promoter except very superficially in this
thing we have before us.
4750. Your evidence is that, as a matter of
fact, it was not a main alternative studied by the developer.
(Mr Schabas) People keep wanting me to
play lawyer. I heard what you said before. I think what you saidif
you read literally the instructions, it is not what you define
as a main alternative and it was not studied by the Promoterson
that basis, that is an interpretation.
4751. MR ELVIN: Thank you.
4752. MR HORTON: I have no re-examination.
The witness withdrew
4753. CHAIRMAN: Mr Elvin, do you want
to call Mr Berryman on this?
4754. MR ELVIN: My Lord Chairman, I will
advance the case on the basis that the document is already before
the Committee. I will be calling Mr Berryman, but on matters such
as lorry routing around Hanbury Street and Spitalfields. Because
this goes, in my submission, to the merits of the alternatives
rather than the legal principle, I am content to rest my legal
submissions on the points I have set out in my note and on the
4755. CHAIRMAN: So you do not wish to
4756. MR ELVIN: I do not wish to call
4757. CHAIRMAN: In that case, Mr Horton,
it is over to you. We want to know in what way does this infringe
the principles of the European Community Directive. You may express
a view by way of a submission as to what "main alternative"
means. I sympathise with Mr Schabas.
4758. MR HORTON: I have largely made
the submissionwhen addressing you yesterday on behalf of
Spitalfields Small Business Associationso I will seek to
be selective, so as to avoid needless repetition.
4759. You looked at the Directive yesterday
and you are familiar with its language. In particular, you will
recollect: "The information to be provided by the developer
in accordance with paragraph 1 shall include at least" and,
then, the fourth paragraph, "an outline of the main alternatives
studied by the developer and an indication of the main reasons
for his choice ... "
The Committee already has my submission that the Promoters' case
is that, as a matter of fact, which your Petitioners accept, it
did not regard Route B on the Spitalfields section as a main alternative
within the expression in this Directive.
14 Committee Ref: A26, CrossRail Tunnel Alignments
between Liverpool Street and Bow Triangle (SCN-20080313-017) Back