Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10520 - 10539)

  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 stable.

  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 customer—although in volume terms with not very much—all 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 shafts—and 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 market operations.

  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 now—and, of course, it in no sense binds anyone—is 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 compensation ...".

  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 difficulty—and the difficulties were addressed by Lord Hoffmann in Wildtree Hotels—is 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 nuisance—or what would have been the nuisance but for the Act—you get nothing.

  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 here—because 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?

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