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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