Examination of Witnesses (Questions 5551
- 5559)
Ordered: that Counsel and Parties be called in.
5551. CHAIRMAN: Good morning. I should
say that the local authorities which are due to come to address
us on their general approach to the question of noise, which is
an extremely important aspect on which Havering have been taking
the lead, are still considering the text. I think it is better
that they should finalise the text because this is such an important
matter that I have a feeling that we will want to put it in our
report to the House and, therefore, we must give them an opportunity
to get it absolutely right. They are only going to read it out
and it is quite short, but nevertheless, I think it is extremely
important. Therefore, Ms Jones, you will be the main contender
today.
Ruling on the Select Committee's behalf
on compliance with the Environmental Impact Directive 85/337/EEC,
as amended
5552. However, before that, I promised that I would
produce a ruling on the Select Committee's behalf on compliance
with the Environmental Impact Directive 85/337/EEC, as amended,
and that I will now do.
5553. In the case of the decision-makers for
most large projects in England which fall within the scope of
the Directive, the process is governed by Regulations which transpose
the Directive into domestic law. In the present case, the decision
is to be made by Parliament so that it is the terms of the Directive
itself which have to be construed. Article 5(1) of the Directive
requires developers to provide information covering the matters
in Annex IV and then Article 6(2) provides that: "Member
States shall ensure that any request for development consent and
any information gathered pursuant to Article 5 are made available
to the public within a reasonable time in order to give the public
concerned the opportunity to express an opinion before development
consent is granted". Article 5 requires the developer's Environmental
Statement to include an "outline of the main alternatives
studied by the developer and an indication of the main reasons
for his choice". This means that the developer must set out
in the Environmental Statement the main alternatives which he
has studied.
5554. Crossrail is a linear project, but, although
an integral scheme, it has been, for convenience, divided into
three parts. The central section includes the tunnel which would
take the tracks from Liverpool Street Station to Whitechapel Station;
on the alignment in the Bill, this section passes underneath the
Spitalfields area.
5555. It has long been the ambition of the Petitioners
from this area to divert the alignment so that it goes somewhere
else. Whilst such a diversion might have been achieved in the
House of Commons by way of an Additional Provision (although it
was not), in this House, for reasons set out in the Committee's
ruling last week, Standing Orders preclude any such suggestion.
What the Spitalfields Petitioners want is the adoption of what
is called `Route B' which runs to the south of their properties.
The proposition put forward by Mr Horton is that this Committee
should rule that Route B should have been a `main alternative'
and should treat it as such, opening it up to comment by the public
and study by the House of Lords. Mr Horton argues that a failure
to do this would render the Environmental Statement deficient
and the process non-compliant with the Directive and thus unlawful.
5556. It would not be feasible to challenge
the matter at this stage, but, when and if the Bill receives Royal
Assent, a domestic court or the European Court of Justice could
address the matter. It is not inconceivable that a domestic court
might be prepared to adjudicate on the validity of primary legislation
where an EIA was required but was not provided for; the Court
of Appeal in Regina v Durham County Council ex parte Huddleston,
and I give the reference 2000/WLR 1484, held that the provisions
in the Planning and Compensation Act 1991, which allowed the revival
of an ancient planning permission for mineral workings in circumstances
which fell within the requirements of the Regulations implementing
the EIA Directive, but made no statutory provision for such an
appraisal, was ineffectual. Whether a domestic court would be
so robust as to strike down the entire Crossrail Act on the grounds
now in issue is a matter for speculation, but the European Court
of Justice could do so.
5557. Many of the issues now raised by the Petitioners
were considered in the House of Commons. It is not for this House
to comment on proceedings there, but it should be noted that under
Private Business Standing Order 27A (and there is a 27A for both
Houses), when a Bill authorising the carrying out of works is
submitted for approval, it shall be accompanied by an Environmental
Statement containing the information referred to in Part II of
Schedule 4 to the EIA Regulations, which is Statutory Instrument
1999/293, and so much of the information referred to in Part I
of that Schedule as is reasonably required to assess the environmental
effect of the works and as the Promoters can be reasonably expected
to compile. It must be assumed that this Standing Order was complied
with in the House of Commons, and we see no evidence to suggest
that it was not.
5558. The Woodseer and Hanbury Street Residents'
Association say in a submission that the Select Committee in the
House of Commons did not, during the consideration of Additional
Provisions 3, address Route B. There may have been reasons concerning
the principle of the Bill and the Committee may have declined
to hear argument on Route B because they did not consider that
it was covered by Additional Provisions 3. Anyway, the matter
must now be confronted afresh in this Committee.
5559. If Route B is a legitimate matter for
the House of Lords at a later stage of the Bill, and for this
Committee it is not on the grounds mentioned above, one thing
should be said: that the Directive requires Member States to ensure
that information about the proposed project is made available
to the public so that they may have an opportunity to express
an opinion before development consent has been granted, and that
is Article 6(2) which I have already referred to.
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