Examination of Witnesses (Questions 5960
- 5979)
5960. MS JONES: Correct.
5961. CHAIRMAN: And you would have other
remedies.
5962. MS JONES: We would do, but I think
what we would be looking for is to put all claims arising out
of the tunnels into this one Deed so that there is one composite
document.
5963. CHAIRMAN: So you want a 100 per
cent indemnity for absolutely everything. Now, I am not sure that
it is within our powers to draft that.
5964. MS JONES: I think the word `indemnity'
always frightens people, but, in essence, what we are asking for
is that, if the Petitioners, if the building-owners suffer damage
or financial loss because of the way in which the tunnels are
constructed, then it seems to me only reasonable and fair that
they should be compensated by effectively the Promoters. The Promoters
are doing this. They would not be entitled to do it other than
through the compulsory purchase procedure and it does seem to
me to be right and proper that the Promoters should make good
all damage.
5965. CHAIRMAN: Well, you go ahead, but
I think we are concerned with the terms of the Bill, not with
something which is outside the terms of the Bill.
5966. MS JONES: I appreciate that. If
we go on to page 4, the first numbered paragraph, paragraph 1,
at the moment, under the Deed we are just recording defects, but
it seems to me that the whole condition of the building ought
to be recorded so as to avoid the potential for dispute as to
what damage has been caused and why.[12]
At the moment, the Promoters are proposing that that is carried
out, I think, around 12 months before the works start. The Promoters
have also in the various evidence confirmed, as we all know, that
these buildings and all buildings move around because of seasonal
changes. Now, it seems to me that you cannot properly record what
a building is doing in one period before the tunnels start, but
you have got to see how the building reacts over maybe three or
four years to see how it reacts to the different changes in the
seasons over that sort of period, so I would expect that those
condition surveys are carried out for a slightly longer period
so as to avoid any dispute at the time as to whether any damage
has been caused either by the tunnels or in fact by general seasonal
movement. I think that would protect the Promoters as well because
what they do not want to have are a load of claims that actually
have no substance to them because it would have happened anyway,
and I do not think you can do that in just one condition survey
just before the tunnelling starts.
5967. The next point of principle is that the
Deed should oblige the Promoters not to make good just damage,
but also what I have called "deterioration or a change in
the state of the building". Now, `damage' is a very particular
term and that has to be something where you can see a crack. For
example, if there is settlement and our windows or doors do not
open, I think it is arguable that that is not damage, but that
the actual state of the building has deteriorated so that they
cannot actually be used for the function for which they are supposed
to be used, so I would ask that the obligation to remedy extends
to a change in the state of the building.
5968. CHAIRMAN: I think you would find
that that was ordinarily accepted by any subsidence engineer as
being part of the results of the works.
5969. MS JONES: Thank you. The next point
on the Settlement Deed, and this is a point of drafting, is that
it is very strangely worded and there does not seem to be any
actual obligation to carry out the works. I think what it should
make clear is that the building-owner can carry out the works
or, if the owner agrees, the undertaker can carry out the works.
At the moment, it is the other way round and the undertaker can
say, "No, I'm carrying out the works". Now, as we all
know, if we have ever asked anyone else to do anything, particularly
in building work terms, it is much easier to do it yourself, and
I have put here that the old adage applies of, if you want something
doing, do it yourself! I would much prefer that the building-owners
are given the opportunity to do the works. If they do not want
to do them and they ask the undertaker to do it, then that is
fine, but it should not be the other way round. I think that,
if the Promoters carry out the works, then there must be an obligation
that they are carried out to the satisfaction or reasonable satisfaction
of the homeowner and I think there is something along those lines
in the Deed, but it must also be in accordance with an agreed
timescale, specification and methodology.
5970. Number 5, I am afraid this is anticipating
a disaster situation but we know that has happened on the Jubilee
Line, and forgive me if that is wrong, there was a catastrophic
collapse there. The costs in repairing or replacing should extent
to contents, for example.
5971. If in fact during the period of repair
people have to move out then it seems to me reasonable to expect
that the costs of accommodation should also be paid for.
5972. Item 7 is very important with these particular
buildings. At the moment under the Deed the Promoter seeks to
exclude for the cost of repair items which are already in an unstable
condition. For example, my ceiling is 300 years old; it is extremely
fragile but it has stood the test for that long; and that is part
of the real significance of these buildings that most of them
are in their un-done-up state. It seems to me that if the tunnelling
and the settlement cause that to collapse I do not want the Promoter
to argue that it should not have to repair that because it was
already in an unstable condition. I think the obligation should
extend to any repair and not exclude existing defects which are
worsened.
5973. On the assumption that the repair is carried
out by the building owner and there is an obligation to reimburse
the costs by the Promoter, I think that there should be some penalty
on the Promoter if those costs are not paid, otherwise these owners
are going to be out of pocket. The usual way you provide that
incentive is to provide some sort of penal rate of interest if
the monies are not paid when they are due.
5974. There are various matters of detail in
the Settlement Deed which appear to exclude claims where the undertaker
is responsible under the terms of the Deed, and that is to try
and avoid for the Promoter double recovery on behalf of the building
owners. That is absolutely fine but the problem in the way it
is drafted is that it simply says where there is a claim; it does
not say where the Promoter has actually complied with its obligations.
5975. My next point is that any assessments
or reports which have been made by the Promoter should be subject
to the owner being able to appoint its own engineer to assess
them, and any disputes going through a third party.
5976. Item number 11, I think all third party
costs should be borne by the Promoter.[13]
In particular there are limited costs in specific circumstances
but it does fail to include legal costs which, I hate to say,
are generally quite high.
5977. I think we would like an overall provision
that best construction methodology is employed.
5978. The only other main point I have is that
at the moment the Deed is to be given by the nominated subcontractor,
and we do not know who that is going to be. We do not know what
its financial strength is, when you think of the contingent liabilities
there will be. Generally I know from my experience that what happens
is you put a company with not a huge amount of financial covenant
worth in prime position because then if it goes down there is
not a huge problem for the owners of that company. What I would
ask for is that the Settlement Deed and the obligations under
it are entered into by the Promoter, because we obviously have
a fair amount of comfort in the financial covenant strength of
a secretary of state or government department.
5979. CHAIRMAN: I have not been through
this in detail but I think most of these points are in fact now
incorporated in the texts that you have put forward?
12 Committee Ref: A29, Petitioner's proposed amended
Deed of Settlement (SCN-20080318-009) Back
13
Committee Ref: A29, Petitioner's proposed amended Deed of Settlement
(SCN-20080318-010) Back
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