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, www.rail-reg.gov.uk (SCN-20080501-025 and
-026) Back
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