Select Committee on the Crossrail Bill Minutes of Evidence


Examination of Witnesses (Questions 10540 - 10559)

  10540. MR DINGEMANS: I think at the moment that does not happen. (Counsel took instructions). The market as a whole at the moment has never been closed for those provisions.

  10541. LORD YOUNG OF NORWOOD GREEN: Or a section of it?

(Counsel took instructions)

  10542. MR DINGEMANS: Not since the refurbishment where, effectively, it was recognised that everything had to change.

  10543. LORD BROOKE OF ALVERTHORPE: When was that refurbishment?

  10544. MR DINGEMANS: I think that was 11 years ago.

  10545. LORD BROOKE OF ALVERTHORPE: Has there been any building around the markets over the course of the last 15 years? In those circumstances, have the traders suffered from dust, and what action has been taken to try to get compensation?

  10546. MR DINGEMANS: I think there have, inevitably, been houses that have been refurbished around but nothing that will have caused these problems. That is really why they have gone to the expense—and they are all individual market tenants—of getting the experts to negotiate and try and reduce the problems, and paying, for what it is worth, for lawyers to attempt to persuade you to do that. It would be wrong to say there have been no building works—effectively, small domestic and retail—but nothing that has had the capacity to generate dust.

  10547. If we were to go back to the photograph (which I think was 053), can I identify some parts on that?[12] If you look at the market you can see the eastern and western Building fully tenanted and you can see, just to the bottom left-hand of the western building, what looks like a roundabout. In fact, that is a circular ramp that leads down into the car park. There is, importantly so far as the market is concerned, parking on the ramp itself, part of which will be lost over certain periods, although the Promoter is going to use reasonable endeavours to reduce that, and then there is, underneath the market, the car parks, some of which have higher ceilings so that lorries can park underneath. Part of that will be lost regardless, it seems, of where the escalator box, in fact, goes because there will be a worksite in the market area. So those are the provisions.

  10548. To address my Lord, Lord Young's point in relation to building works, if one looks to the top right-hand corner, which I think is Charterhouse Square, there have been reasonably substantial building works over there, and certainly when I have seen the area there have been some minor flat refurbishments and other commercial fittings, but nothing on the scale that is currently proposed.

  10549. I then turn back to the note, at paragraphs 15 and 16. In recent discussions the Promoter has kindly agreed to provide an undertaking requiring the nominated undertaker to enter into a deed (and you have seen that) mirroring the undertakings which have been provided. We entirely accept this is an important development. It should involve no additional costs because the nominated undertaker would have been carrying out those undertakings, but it does mean that the tenants now have rights to enforce the specific promises in the deed and claim compensation for losses caused by any breach of those specific promises. So, in the same way that if you have a promise from anyone you can enforce it in the normal contractual way.

  10550. If one goes to the deed itself—can I ask for that to be brought up, which is 04-036—and ask perhaps if we start at 2.2, may I just highlight some provisions in the deed, simply to show why it is not a complete answer to our problems?[13] At 2.2, for example, you can see, under "Pedestrian access", "The Promoter will ensure that pedestrian access is maintained but that in order to carry out the authorised works the undertaker may require closure of the western footway from time to time". If you are a market stall, effectively, dependent upon pedestrians coming in, that is going to cause problems. With the best will in the world—and they have gone as far as they can with the deed—they cannot say that it is never going to happen; and, indeed, they specifically say it will.

  10551. If one goes to 4.2, one can see, having promised, in 4.1, to maintain safe access for vehicles and pedestrians, the undertaker will use "reasonable endeavours" to ensure that the suspension of parking in connection with the authorised works is limited to take place outside operating hours.[14] That means that sometimes it will not take place outside operating hours, otherwise they would have given us an absolute promise that we could enforce. That means that we have to show they have not used their reasonable endeavours which, of course, is great for lawyers but no good for the market tenants in terms of sorting it out.

  10552. If one looks at paragraph 5.1: "The undertaker will use reasonable endeavours in constructing the authorised works to maintain six loading bays in Lindsey Street". My learned friend says today, if (and it is still an "if" because the Bill that you will authorise contains the powers to take up, as it were, Lindsey Street and to construct the works in the basement, and that is the legal position) the works are carried out underneath the market then those loading bays will be restricted to six, and that is only "reasonable endeavours" again, so it is not a guarantee.

  10553. At 6.1—will that be the escalator under the market—the undertaker will use best endeavours to take forward a detailed design to avoid it. Of course, notwithstanding those best endeavours, if it does not happen then the market traders would need to show that they had not used their best endeavours, which—in circumstances where they have all the professional advice they have and are plainly working to do the best they can—is going to be a formidable task. If one looks at 7.2(b), you can see: "the design of the access to the East Basement worksite to be such so as to prevent (as far as is reasonably practicable) the escape of dust ... " No guarantee that it will not escape because, of course, no guarantee can be given. At (c): "the underground access to the East Basement Worksite from the Lindsey Street Worksite will be designed to prevent"—again "(as far as is reasonably practicable)"—"the exchange of dust."

  10554. At paragraph 7.3 itself, again, you can say the Lindsey Street worksite will be shielded so far as is reasonably practicable. What that simply demonstrates in, I hope, a graphic way because it saves you going through all the undertakings, is that notwithstanding the very hard work that the Promoter has put in to meet the concerns, everyone recognises that the reality is that dust will escape and that parking bays will be lost. That is the effect if you build works underneath the market and beside it.

  10555. Can I then go to paragraph 17, where it is noted that the promises in the deed should mitigate some of the effects of the construction. However, there are two distinct problems: first, where market operations are affected by the escape of dust, notwithstanding the use of mitigation measures, and, secondly, that there will be a loss of business generally because of traffic problems, loss of parking, and the like. As to the first problem, the operations in the market are acutely sensitive, and I have been through that, so I will skip that.

  10556. I then turn to paragraph 19. Undertaking B number 234 does not provide sufficient protection to the market tenants. I am afraid, to show that, one needs to consider the relevant statutory provisions. What I have done is use the Law Commission's Final Report, simply because then there could be no argument about anyone getting the law wrong. In fact, my learned friend and I, I think, are in agreement as to the current state of the law. As appears from the Executive Summary, there is, at present, no national compensation code. People call it that by way of shorthand, but in fact compensation is provided under a collection of different statutes: the Land Compensation Act 1961, the Compulsory Purchase Act 1965 and the Land Compensation Act 1973. You get compensation under two separate schemes: first of all, if there is taking of your land—so if they are going to build a road over your back garden and you lose your back garden you will get some money. That is no problem.

  10557. There is also compensation where there is no taking of your land. The specific situation of the market tenants means that there will be no permanent or temporary taking relevant to them. Although the worksites are going to be taken they do not own them because they are only tenants—it is the Corporation of London that own them. Therefore, the relevant statutory scheme is compensation after "no taking".

  10558. If one then looks at where that comes from (it is paragraph 22), that is the Compulsory Purchase Act 1965. That gives a right to compensation for what is called "injurious affection" caused by the "execution of the works". This means the construction of the public works. So when you are building the works and it causes you problems you are into the Compulsory Purchase Act. The Law Commission has politely described the wording of section 10 of the Act (and I have set it out but I will not bore you by reading it) as "opaque". We respectfully submit that is a perfectly fair description of it.

  10559. In Waters v Welsh Development Agency, which was a decision of the Judicial Committee of the House of Lords, Lord Nicholls endorsed criticisms made by Lord Justice Carnwath, who was described as having unrivalled expertise in the field. "The right to compensation for compulsory purchase is a basic property right. It is unfortunate that ascertaining the rules upon which compensation is to be assessed can involve such a tortuous journey through obscure statutes and apparently conflicting case law, as has been necessary in this case." That is, effectively, current criticism from the Judicial Committee of your Lordships' House on the "taking" provision. However, it does not get better because if you look at Westminster City Council v Ocean Leisure, Lord Justice Carnwath, in the Court of Appeal, considered compensation after "no taking" and he said that there was "the deplorable state of the statutory law of compensation in this country", and repeated the hope that the opinions in Waters coupled with the Law Commission's report would pave the way for further legislation. These criticisms include difficulties of the statutory wording and the fact that there are so many conflicting judicial decisions.



12   Committee Ref: P73, Aerial View-Farringdon (LONDLB-23-04-053) Back

13   Committee Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders-Pedestrian Access to the Market (LONDLB-23-04-038) Back

14   Committee Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders-The Market car park (LONDLB-23-04-039) Back


 
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