Examination of Witnesses (Questions 10520
10520. MR DINGEMANS: At the moment, and
you will hear evidence from the market tenants themselves, I am
told the business is about £750 million to just under a billion
a year. Business is strong and has remained strong since the whole
markets were upgraded to take account of the EC Regulations.
10521. LORD BROOKE OF ALVERTHORPE: Is
it growing or contracting?
(Counsel took instructions)
10522. MR DINGEMANS: I am told it is
10523. LORD BROOKE OF ALVERTHORPE: My
reason for asking is I visited New Covent Garden recently and
discovered about 75 per cent of the land there is not now being
used in the way it was twenty years ago, and there is a lot more
space available for the existing tenants to do other things. I
was wondering whether you are occupying the whole of the land
there, or whether there were opportunities perhaps to take special
measures, if there is space, to avoid the dust.
10524. MR DINGEMANS: Unfortunately, and
you can see it going round, there are no vacant units in those
terms. What you should know is, when you looked at the market
buildings originally, you saw East and West Smithfield and then
something called the poultry market. The poultry market is no
longer part of the market but the current market, East and West,
is still there and still fully occupied.
10525. Just on economic relevance, a particular
feature of the market is this: that it is not tied in with the
major supermarkets, whose effect on competition has been the subject
of comment, and that means, because they supply the retail customeralthough
in volume terms with not very muchall the way up to small
manufacturers, those who cure the hams themselves, they are economically
quite important to put against the powers that can arrive from
dominance in the market.
10526. In terms of supplies, they supply predominantly
London and the south of England but they have supplies that go
all the way to Scotland and the west of England, and you will
hear evidence on that.
10527. Can I then turn to paragraph 8 of the
note, which is what the works provide, and my learned friend has
very kindly taken you through that but you can see that there
will be work below the market in basement work sites, that is
whether or not the escalator changes or not, and the new Farringdon
station will be built off Lindsey Street. Escalator shaftsand
it should not now read "will" but "may"may
run beneath the market, and refrigeration plant might need to
be relocated, and these are the real problems: restricted traffic
flows, restricted vehicle access, escape of dust, increased pollution
and vermin release.
10528. In fact, as a matter of history this
site has underneath it a number of historic vaults which no one
has yet opened, because they were closed up under old schemes
which never produced and which it is feared house substantial
rodent populations, and, as I think was said before the House
of Commons, as far as rats are concerned a meat market is Christmas
come early, so those are real problems that may be caused.
10529. Paragraph 9 concerns the Buro Happold
Report which is in the bundle and I will not take you to it. It
was commissioned by market tenants to attempt to assist in negotiations
and protections that have very kindly been given and it simply
sets out all of the details in relation to that.
10530. Paragraph 10 says this, and I think it
is effectively common ground between us, but the extent of the
undertakings and the assurances that the Promoter has conceded
indicates the extent of the works and the risks posed to the meat
10531. Can I then turn to the attempts of paragraph
11, which is where we are now, to resolve the matter?
10532. We did petition against the Bill and
a whole series of undertakings and assurances were given in the
House of Commons, but what divided us there and divides us now
is the compensation provisions. The Petition was heard in the
House of Commons over two days, and the ruling from the House
of Commons Select Committee, for what that is worth nowand,
of course, it in no sense binds anyoneis there set out.
The Promoter responded, and my learned friend has said what that
was, which was: "... the Secretary of State accepts the judgment
of the Committee that the exceptional and historical nature of
the business of the tenants ... justifies additional rights to
10533. That then led to undertaking B No 234,
and I am afraid there is no easy way of explaining B No 234, it
is a very detailed provision, but what it does provide is this:
that "where an event occurs during the construction of Crossrail
which triggers a right for the market traders to claim compensation"and
can I stop there and say what in legal terms that means? To claim
under the 1965 Act you have to have something that would have
been actionable at common law, for example, a nuisance which is
authorised by statute and therefore is permissible, so you cannot
claim under common law and therefore Parliament provided that
you could claim under the land compensation provisions in the
Compulsory Purchase Act.
10534. The difficultyand the difficulties
were addressed by Lord Hoffmann in Wildtree Hotelsis
that normal escape of dust from building works is not actionable
and, therefore, the real problems that the market tenants are
going to face is simply not addressed because you have this trigger
clause, you need the nuisance, and if you cannot show the nuisanceor
what would have been the nuisance but for the Actyou get
10535. So, although it is very kind of them
to provide this additional guarantee, in terms of helping the
market tenants that is why we are herebecause we hope to
show through the short evidence and the submissions that really
what is offered is not enough to deal with their particular problem.
10536. A further problem, if you continue through
the clause, was, as I said, under the Compulsory Purchase Act,
that your losses were limited to the value of land, and that has
been addressed because, if you look four lines up from the bottom
of the page, we see "... the Secretary of State will require
the nominated undertaker to include in the compensation an amount
representing any consequential loss, whether or not reflected
in the value of the land"so that point has been specifically
addressed"caused by the construction of the works
under statutory authority [and] for which the nominated undertaker
would have been liable to pay damages if the construction had
not been authorised by statute."
10537. So the limitations implicit in the 1965
Act are there set out, and everything is captured by those provisions.
10538. What that means in the real world is
this. Tier 3 mitigation measures are used; very hot dusty day;
dust levels, notwithstanding every reasonable effort, go beyond
the permitted maximum, and that is not a situation that is going
to be unusual, and then the market tenants will suffer the losses
caused by closure.
10539. LORD YOUNG OF NORWOOD GREEN: Just
to set the scene and get it into perspective, how many times a
year does the market get closed on average as a result of dust?