Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10900 - 10919)

  10900. CHAIRMAN: Is it arguments we are going to be listening to today?

  10901. MR MOULD: It is.

  10902. CHAIRMAN: And it is not going to be that quick.

  10903. MR MOULD: I suspect I will be about 15 minutes.

  10904. MR DINGEMANS: My Lords, I have already set out, I hope in some detail in the opening, our legal position. In some respects, it does not get better or worse than that because that is the law and those are the problems that confront us. I will have some specific comments on, for example, when a right to compensation is triggered, because I think my learned friend was suggesting in his questions that the market traders have an enforceable right to apply. That would be great and, of course, part of our problem is we do not, it is the corporation that has it. If I am right, I will then finish by saying, "Well, if he thinks I ought to have the right to compensation, and we do not have it or you doubt we have it, please make it clear in the deed", but I suspect that is probably 20, 25 minutes.

  10905. CHAIRMAN: Could we start again at 2pm.

The Committee adjourned from 1.03pm until 2.00pm

  10906. CHAIRMAN: Welcome back. Mr Mould, there is this question of paragraph 27 of the Petitioner's Petition. I have not looked in detail at your note but, as I understand it, what they are asking for is exactly the same as what the Law Commission recommended.

  10907. MR MOULD: No, it is not. I am sorry, I misheard what your Lordship said about that before lunch. That was why I appeared to step in, but I thought I had heard you differently. It is quite the opposite. The Law Commission did not recommend what they are asking for. I can show you that in a moment or two. It is fair to say that what is being sought here is the very extension of the right to make a claim under Section 10 of the Compulsory Purchase Act 1965, which the Law Commission said it would not recommend to Government because if such a change was to be made, it involved major legislative and policy considerations as to where the balance should fall between public works and public finance and the impact on private interests which ought to be considered as a matter of generality by Government and by Parliament. That in short is what we say precisely because of that entirely sensible judgment made by the Law Commission, accepted by Government in its response to their report. It would not be appropriate, with respect, for your Lordship's Committee to recommend that such a far-reaching change to the established legislation in relation to compulsory purchase and compensation be made in the context of a specific scheme of works, that is to say the Crossrail scheme.

  10908. CHAIRMAN: In any event, whatever is done, if anything is ever done, it ought to be in the public general Bill.

  10909. MR MOULD: Exactly so, that is our position. The answer to that—

  10910. CHAIRMAN: Do not let me distract you, but I just wanted to start with that. I got it wrong.

  10911. MR MOULD: I will respond to the way my learned friend seeks to meet that point in a moment. I am going to come to my note in a moment, but can I set the scene in this way. The issue here is whether the market tenants should be able to recover compensation for any losses resulting from the Crossrail works, even if Crossrail has done everything reasonably practicable to prevent the problem which gives rise to that loss, so it is an indemnity, based not on fault but on the event.

  10912. An example being, to pick up on the evidence you have heard, a dust escape where the Promoter, the nominated undertaker, had taken all reasonable measures practical to prevent that escape occurring. Our submission is that being the position, this Petition now has nothing to do with anything special about the Smithfield traders because exactly the same issue, that is to say the residual risk that there will be an escape of dust or there will be some other form of disturbance which causes a commercial neighbouring occupier to suffer loss, notwithstanding that the nominated undertaker has done everything reasonably practicable to prevent that happening—

  10913. CHAIRMAN: It is injurious affection rather than disturbance, is it not?

  10914. MR MOULD: Yes, but I am using the phrase disturbance not in the technical sense but just someone being disturbed by noise or by dust. That is the situation. That cannot sensibly be said to be unique to these traders, it is a risk which has the potential to be realised in relation to shopkeepers who are running shops in the vicinity of the Bond Street Station work sites, including, for example, people who are selling sandwiches in sandwich shops in the vicinity of the work sites in Oxford Street, that kind of thing. It is just as likely, your Lordships may think, that if such an escape occurred, notwithstanding everything reasonable having been done to prevent it, it did occur and dust got on to that day's sandwiches in the cold store in the sandwich shop, then that would be a loss of a day's business. It is the same point. This is exactly the point which the Law Commission considered in the report, of which you have extracts in front of you and which the Law Commission did not recommended should be embraced.

  10915. CHAIRMAN: Where are we in your notes?

  10916. MR MOULD: This is paragraph 13 onwards where I start with a key point. I made the point, it would be a fundamental change in public policy on compensation.[23] Before I come to taking you to the detail of this, can I summarise where we have got to on the facts this morning. As regards the risk here on the facts, and I am making my submissions on the basis that we proceed with the revised scheme of works for the reason that Mr Berryman gave in terms of time on a daily basis, it is clear that the interaction between the operation of the market and the performance of core construction works on the Lindsey Street work site, which is where the focus of concern is here, will normally be limited to about an hour a day, between the hours of eight and nine in the morning. As regards that hour, you have been told that meat is delivered during that hour in sealed containers. It is delivered into the market through bespoke up-to-date sealed loading bays.

  10917. CHAIRMAN: And not from Lindsey Street?

  10918. MR MOULD: Not from Lindsey Street. It is taken out to customers' vans and lorries and cars and so forth also in sealed plastic bags. That is no more than an example of a general point made by the traders themselves today and that is that they have to meet exacting standards of hygiene and pollution control in relation to their products, for obvious reasons, and in order to do that, they have to make sure that, as a general rule, the risk that their meat, whether it be carcass meat or boxed meat, is subject to any sort of contamination as it passes within and out of the market, that that risk is kept to the absolute minimum. You have heard that there is a general rule that they have been successful in achieving that state of affairs.

  10919. The next point is that we are committed to liaising with both the City Corporation and the Market Traders' Association in relation to the identification of measures to minimise dust penetration into the market itself. As we said in answer to my Lord, Lord Brooke's question, we will bring forward the establishment of the liaison body that we would expect to establish in due course in this case precisely for that purpose. Mr Berryman has explained to you that there will be physical measures taken at source in order to seal off the work site, which will be state of the art. We have explained that, and the Deed of Undertaking bears this out in Clause 7, monitoring and management regimes will be established which will include the setting of appropriate trigger levels by the Corporation in discussion with ourselves and with the traders. Of course, we do say that there must, on any reasonable view, be the opportunity to manage the administration of the market during the period of construction works so that that can also contribute towards keeping the risk of dust penetration within the market to the absolute minimum by, for example, reducing the degree to which the entrance to the market on the eastern elevation is used during that hour of interaction between eight and nine in the morning. No doubt other measures—

23   Committee Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders-Compensation (LONDLB-23-04-042) Back

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