Examination of Witnesses (Questions 8860
8860. MR ELVIN: The ORR would be departing
from its own decision of 14 April if it did, because the ORR has
reached a decision in accordance with its provisional decision
that it will not require specific infrastructure works, so it
would be departing from its decision and it has to issue its directions
in accordance with its decision, as your Lordships would expect.
8861. CHAIRMAN: So it could always change
its mind? It could do it, could it?
(Counsel took instructions)
8862. MR ELVIN: I think the answer is
that the whole purpose of the provisional decision followed by
the final was to allow argument as to whether he should change
from his provisional decision. Once his decision is made he has
made that decision, and unless the situation changes he would
find it difficult to seek a change in decision having made a final
decision. I think there would be difficulties in terms of normal
administrative law procedures if he decided that his final decision
was not his final decision.
8863. CHAIRMAN: I do not remember their
saying anything about the details of the infrastructure that was
to be required.
8864. MR ELVIN: None is to be required,
my Lord. What the ORR has said is that there will clearly have
to be infrastructure improvements, but by specifying the standards
it leaves flexible the precise infrastructure improvements that
are to be carried out in due course. In other words the ORR has
decided he is not going to require anything specific. To achieve
the 92 per cent works will be required but he is leaving those
works to be determined at a future stage, but what he is saying
is you have to achieve resolution of the conflicts, you have to
achieve the 92 per cent, all of which factors in the increase
in capacity to be protected for rail freight paths and the like.
So what he has done is he has settled on a mechanism which will
require infrastructure works in due course but has not said in
any inflexible way: "You must produce infrastructure works
A, B and C". Infrastructure works will be required, no doubt,
but it is too early a stage at the moment to say which works will
8865. No one doubts there will have to be infrastructure
works in due course; all we are arguing about is whether we should
be tied down to a specific list of infrastructure improvements
at this stage, or whether we should have the flexibility, as the
ORR thought, to make the final decision as to which infrastructure
works were needed to achieve the requisite outputs, protecting
the various interests which the access option will protect in
due course. So we have a mechanism but that mechanism will not
deliver the actual result for some time.
8866. CHAIRMAN: The only sanction, though,
presumably is, if in the event the 92 per cent is not achieved,
because you have not installed the infrastructure works --
8867. MR ELVIN: -- then we do not get
access. We have a short run-in period, which is mentioned in paragraph
80 of the ORR's decision, which allows fine tweaking at the last
stage to get up to the 92 per cent; there is a short run-in period
when you are starting up. Once that is over, if the 92 per cent
is not achieved, we do not meet the terms of the access option
and we do not get access.
8868. CHAIRMAN: That is the end of Crossrail.
8869. MR ELVIN: That is the end of Crossrail,
and you can imagine with a £16 billion Bill there is something
of an incentive to ensure that we can deliver the meeting of the
objective test, and one must be realistic about the implications
of not delivering the relevant objective standard at the end of
the day. They are very serious, and no one doubts that infrastructure
will have to be required. We simply say it is ridiculous to specify
it at this stage when the infrastructure is not going to have
to be delivered except over a period of time once the modelling
work has been complete.
8870. As your Lordships have seen from the ORR's
discussions of the hearing, modelling has to go through further
iterations and it may be found there are specific works which
need adjustment or works which perhaps are not needed which were
in the preliminary list.
8871. Let me make it absolutely clear, the modelling
that has been carried out assumes infrastructure improvements
in capacity. It is, therefore, inevitable there will be some improvements.
The question is whether we have our hands tied, even though the
ORR thinks we should not have our hands tied, to specific works
at this stage, when the modelling is at such an early stage.
8872. LORD BROOKE OF ALVERTHORPE: Has
that list been published which you have used in your modelling?
8873. MR ELVIN: Everyone knows what it
is; it is the list of the works in the Bill powers. Indeed, EWS
has listed six of the matters. We have given a commitment to the
one item which is inevitable that will have to be required which
is the Acton dive-under which Mr Berryman explained to you last
week. It is also fairly inevitable that adjustments will have
to be made to allow access to Heathrow airport, again for the
reasons Mr Berryman explained. However, we have not committed
to the precise form of that because there may be adjustments to
be made in due course, and one of the ironies of the situation,
as is clear from what Mr George said last week when he was asking
some preliminary questions of Mr Berryman, is that even EWS, which
takes the strongest line on these issues, is not saying we should
do very specific things because the details are just not available
yet. Flexibility is inevitable on anybody's case, so our position
is a very simple one. The ORR has reached a rational and considered
view based on the representations of industry; industry asks that
these processes be followed in a fair and transparent way; that
is what we have now delivered, we say, through the access option;
no one can doubt the objective and independence of the ORR because
Crossrail is being made to jump through a very large series of
hoops to get its access option. It did not achieve everything
it asked for; it did not get all the paths at this stage it sought;
some of the offpeak paths have not been granted; and the change
control mechanism is very stringent.
8874. It is quite clear we will be held very
strictly to account to the provisions which the ORR has set out
in its decision, and these will deliver the necessary security
that industry requires.
8875. CHAIRMAN: It seems to me that the
infrastructure improvements which are being argued about at the
moment are all on the Great Western main line, and none of them
on the Great Eastern.
8876. MR ELVIN: That is right, partly
because a number of improvements are already programmed. Gospel
Oak to Barking, for example, is already in the tin, as you heard,
I think, this morning.
8877. LORD BERKELEY: Could I intervene
very briefly? That is not the case; we have asked for one improvement
on the east side.
8878. MR ELVIN: I am sorry, I was thinking
of EWS. The same principle applies whether it is east or west;
the ORR was looking at the position globally.
8879. CHAIRMAN: We will hear about that
in due time.