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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