Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10440 - 10459)

  10440. On the second compensation matter, your Lordships are aware that it is a small issue, but it is, to us, an important issue. It may well be that we are guaranteed compensation in about 80 per cent, or possibly a little bit more, of cases, which is a figure which my noble Lord, Lord Brooke, drew out in his questions, but of course something which is up to 20 per cent still remains, as your Lordships will appreciate, a significant element, and what we come back to is the basic principle which Crossrail put forward in their paper H2, that compensation should be on a no loss, no gain basis, and this remains an exception to that principle. We do say that it is very unsatisfactory if your Lordships were to let this matter pass on two, what seem to us to be, entirely fallacious bases. One is that, "Well, that's the way of the world. That's the way which you deal with the matter under the present industry procedures" because the construction of Crossrail and its various works coming all together are very unlike, indeed totally dissimilar to, the sort of matters with which the ordinary industry procedures are intended to cope. We, therefore, have identified this element in the normal procedures which will work, as we see it, unjustly to rail operators when the Crossrail works go ahead, unless there is special provision made to deal with the matter. Secondly, it is said, "Ah, but the issue is under re-examination in any event". What is under re-examination at present is the contents of the industry code as it is to apply to normal railway operations up and down the country. That is what the railway code is about. The revisions are not designed so as to cope with these one-off ventures, and they are very rare indeed, such as CTRL and such as Crossrail, and your Lordships have heard that in the case of the CTRL proposal, there was special provision made so that all losses are recoverable. Your Lordships have heard that in most rail orders, including the East London Line Order, special provision is made and that is all we seek. We say that it would be quite wrong to say, "Oh, this matter will be dealt with in the re-examination". If it is dealt with in the re-examination, then that of course is what will bite, but there is at present no evidence before your Lordships to suppose that those who are re-examining the matter intend to cater for the very special case of major projects which are being constructed of a nature such as Crossrail.

  10441. I then turn to the last matter which is the question of the infrastructure works. Can I start with two preliminary matters and the first of these concerns the origin of the 92 PPM, public performance measure, which is a question that the Lord Chairman raised this morning. In my opening yesterday at paragraph 9705, I gave the origin of the 92, it being the target figure which the Secretary of State had given for the passenger train industry to meet by a particular date, so it is not a special figure here, it is the national target, and Crossrail have thought it appropriate that their new service should meet that national target. It was again a matter to which Mr Smith referred this morning. It is going to be tough to achieve that figure. Mr Elvin suggested that I had criticised in some way the Regulator for setting his standard by the 92 figure. I do not criticise him at all for doing so; that appears to be the appropriate figure. The only point which I was making in my opening yesterday and which Mr Smith is making this morning is that it is going to be very demanding to achieve it. After all, if 92 is to be generally achievable, it by no means follows that it is going to be at all readily achievable on these very busy lines as they approach London on either side. You already know that at present the average is somewhere near 90, but remember what Mr Smith says, that that average includes what he described as "easy places", such as the line from Norwich to Cromer which he mentioned where there is really so little traffic that you ought to be able to achieve something very much higher than that. Our point is that it is going to be very difficult to achieve and we are simply concerned that this Committee does everything it can to ensure that that standard can be achieved, and it seems to us that ensuring that decisions are made about these five additional freight works is a contribution you can make and, secondly, that you can quite properly ask the question, "Well, what if it becomes very difficult? Who is likely to be squeezed?" and to that you may straightaway give the answer that you think it is quite likely that it is freight that will be squeezed and, if freight is going to be squeezed, there must be a lot to be said for ensuring that as early as possible these works, which are in there to benefit freight and passenger services, are included.

  10442. My second introductory point is simply to say that this project at this very late stage does still appear to be a bit like an amoeba or a chameleon. It is terribly difficult quite to pin it down and it seems still to be subject to quite a lot of uncertainty. Some of that you heard about yesterday, about infrastructure management, and then we thought that we were dealing with what the ORR's decision had said, but we now hear that, at yesterday's timetabling, what is actually being modelled, so to speak, the prime case, is not the ORR's decision at all, but has still got the greater number of trains with suggestions that the freight should be removed, and we saw that rather frightening reference to a possibility of descoping. Well, we are simply concerned to achieve as much certainty as possible, and we would hope that the Committee likewise would want to do that.

  10443. Now, turning to the infrastructure works, plainly this Committee has heard a great deal more than the Regulator ever heard about these particular works. If your Lordships doubt that, you have the document which shows the proceedings of one day before the Regulator, a very few pages dealing with this matter compared with the very detailed evidence which you have had, including the helpful evidence of Mr Berryman, accepting that so many of these works are in effect essential. What we say is that these works are overwhelmingly likely to have to be included in the package, so why not include them now? The Promoter's case seems to be based solely on two arguments, firstly, the ORR's decision, and, secondly, flexibility. Now, so far as the ORR's decision is concerned, can I re-emphasise that we are not seeking in any way to overturn or override his decision, and I dealt with this matter in my opening at paragraph 9690 yesterday, and can I only ask that, when the transcript is being officially drawn up and corrected, the second lot of quotation marks be removed because they were my words rather than any quotation. What I said then was that it was entirely for the ORR whether he, the ORR, sought guarantees of particular infrastructure provision. He chose not to do so and EWS accepts that the ORR's output measure is a useful control. We do not seek to go behind the controls which he has put in at all, but, secondly, we do say this: that it is no part of the ORR's function to ensure, or do his best to ensure, that Crossrail will be operating in 2017.

  10444. Your Lordships, on the other hand, may feel that it is part of your task to do everything you can to ensure that Crossrail is up and operating in 2017. The ORR's function is to ensure that, when Crossrail does operate, if Crossrail does operate, it is doing so at an appropriate standard, namely the 92 per cent PPM, and that it be able to take place in 2017 is not critical to his particular jurisdiction. There is no question of any duplication of planning controls or controls arising, which is the new argument now being pursued by Mr Elvin. There may be very specialised cases, pollution cases normally, where there is some aspect of the ground controls or the leachates or something which can properly be dealt with through the control of pollution licence, but we are not into that terrain. There is nothing at all improper in this House or any planning committee faced by an application for works which are railway works saying, "We want to know precisely what we are approving, we want to know what is going to happen, and we want to be sure that what we are sanctioning is going to happen", and that can be done either by a planning authority through a Grampian condition and could be done by your Lordships through accepting, or asking for, the undertaking which we have sought.

  10445. Now, Mr Elvin puts the matter extremely high in his closing because at paragraph 10 he said that the local planning authority would not have the power to impose a condition, and, with the greatest respect to the Lord Chairman, that was saying there was not a legal power, paragraph 10. My Lords, with respect, that is entirely wrong. A local planning authority, faced by this application, or, if Crossrail was coming forward under a Transport and Works Order, the Secretary of State, standing in the shoes of a local planning authority, would absolutely have the power to require that the works did not start until certain works had been completed, and if anyone were to challenge that in the courts, they would be doomed to failure. Your Lordships plainly have the power and, if I may say this with the greatest of respect, it is the commonsense outcome which we are asking for. Here are these works, pared down to five works, which Mr Berryman accepts, he knows of no evidence that the scheme could possibly work without them and, in those circumstances, why not, we say, require them?

  10446. The only second reason given is this argument of flexibility, but this argument on flexibility fast disappears. It is flexibility for a terribly short while because they have got to go out to tender for the works. Secondly, there is no alternative and that is accepted and, if there is no alternative to the works, wherein lies the flexibility?

  10447. Thirdly, can I simply remind your Lordships of three passages from my witness yesterday. The first in the transcript was paragraph 9755, "Has the Promoter got the power to construct alternative works unless they are within this Bill?" and the answer, unsurprisingly, was, "He does not have that power". Then at paragraph 9767: "Do you think the Committee could safely assume that anything else might turn up?
  (Mr Smith) I do not think that is a safe assumption. I would have expected within the three years that we have been debating Crossrail that, if there was some cracking scheme that would miraculously create capacity and enable all services to operate effectively, then we would have discussed it within the industry and might even have brought it forward. The fact is that the schemes that the Promoters have put forward are sensible and sound ones and ones on which we would like to rely

  10448. Finally at paragraph 9769, Mr Smith said this: "Time has moved on. Nobody has come up with a better idea and we are very close to the Bill being approved and the works starting, so I think we really do need to be more definitive now and say this, `These are the works that make the Great Western work for freight but also make it work for Crossrail and make it work for other passenger services'". We would ask your Lordships to do two things, first of all in your report, to make it plain what the submission was from the freight industry and in particular my clients, but, secondly, to endorse it. We would hope that before the matter leaves your hands you seek an undertaking similar to the Acton dive-under undertaking. The circumstances we say are identical, they are necessary works. We cannot be criticised, as we now are, because we have limited ourselves to five works rather than a larger list. That surely is us being moderate, which I hope is a virtue, and we would ask your Lordships to request that.

  10449. Mr Elvin yesterday, as I reminded your Lordships, described my case as ridiculous, today he described my case as incomprehensible. They were both, I think, adlibs added to his script. My Lord, I hope our case is not at all incomprehensible on either of its three limbs and that it may commend itself to your Lordships. Can I finally thank your Lordships for hearing me. We do wish this Bill well. I had the privilege of being in the position of Mr Mould when the first Crossrail Bill was before the House of Commons back in 1992. I still feel personal sympathy to the scheme. At that stage it did not receive the sanction of Parliament, that was a great sadness. The Bill has escalated hugely over the years and it would be much better if Crossrail had gone ahead then. Certainly we hope that Crossrail does proceed. We hope it does open in 2017 and we believe that the measures we have urged your Lordships to seek to incorporate will make it a better scheme and a scheme more likely to be there in 2017. My Lords, I am grateful.

  10450. CHAIRMAN: Thank you.

  10451. MR ELVIN: My Lord, it may seem curmudgeonly in the light of Mr George's both personal and professional expression of support for the Crossrail Bill to point out that he has inadvertently mis-stated a fact. He sought to say in his submissions, although no evidence was adduced on this point, that your Lordships have everything which was before the rail regulator and therefore can take the decision. My Lords, your Lordships have only a fraction.

  10452. CHAIRMAN: We certainly do not have everything that was before the ORR.

  10453. MR GEORGE: Mr Elvin, if you are going to intervene now, what I said was the Committee had more on the rail infrastructure works than the rail regulator had. That was all I said and that is the only matter you are entitled at this stage to intervene on. I would suggest that is right and I ask your Lordships if they doubted the proposition to look at the record of the proceedings at the very few pages which were devoted to it and to compare that with the evidence which your Lordships have received.

  10454. MR ELVIN: My Lord, that is where Mr George, I am afraid, is misleading the Committee because the regulator had before him a vast amount of evidence, including performance and systems modelling report. I have the two pages from the website of the ORR which sets this out, because you can download all the documents which were before the regulator.[34] Your Lordships need to understand that the implication of what is being said: that your Lordships have far more information than was available to the regulator, which I am afraid it is just wrong. You will see, this is the first page of the ORR's website with documents relating to the Crossrail access option. You will see the application documents which you do not have, the initial responses of which I think you probably have one. You do not have the DfT responses. You have not got the update on the hearing, further responses, report and further information. You have got the two decision documents and you have got the majority of the industry responses because I have cross-examined on them, but you will see from this that you have not got anything like a reasonable proportion of the ORR's documents. I do not want your Lordships to think that you are being asked to take a decision on the basis of broadly as good information as the ORR had. I am quite happy to have that list copied so your Lordships have it, but it is just a print-off from the ORR's website.

  10455. CHAIRMAN: I do not know whether I can get both of you to agree about this. We have not got all the time-tabling and the modelling material—and I am truly grateful that we have not—what we have got is a great deal of information, both in the Bill itself and as a result of the evidence about the infrastructure works that have been referred to by both these Petitions. I would assume that the facts about those infrastructure works were available to the ORR because they are referred to in the decision.

  10456. MR ELVIN: Indeed.

  10457. CHAIRMAN: I hope that is a fair summary.

  10458. MR GEORGE: My Lord, that is fair, but the ORR, so far as I am aware, was not taken through the individual works. He knew that there were the works in the Bill and he knew that the parties were asking that they be part of the decision, but my point is a little limited one and your Lordship knows exactly what it is and I am not going to repeat it.

  10459. CHAIRMAN: Mr George, they were inputs as were the models.

34   Office of Rail Regulation-Crossrail Track Access option documentation, (SCN-20080501-025 and -026) Back

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