Examination of Witnesses (Questions 10960
10960. My Lord, that is our key submission,
that the Commission faced up to the points raised by the traders
and they said: "No, we are not prepared to make a recommendation.
If the law is going to be changed it is a matter of far-reaching
policy considerations; it is a matter for Government", and
in its response to that report the Government said: "We are
not going to make any change of that kind", and I have given
you the relevant extracts from the Government's response at exhibit
10961. LORD YOUNG OF NORWOOD GREEN: In
paragraph 15 of your text, "Under the current state of the
law such persons are not entitled to be indemnified for losses
they may sustain by reason only of disturbance which inevitably
results from the proper performance", presumably, if the
performance is less than proper, then you are liable?
10962. MR MOULD: Yes. If the circumstances
show that the works were carried out without proper care and attention
then there would be a claim under the common law in nuisance,
so you would be able to recover damages in that way, yes. So if
the dust sheeting was not properly secured and so on, then that
10963. My Lord, I am sorry that this is all
a little bit dry and detailed but it is just to set out the position
from a legal perspective. At the bottom of page 4, the human rights
dimension, my learned friend touched on the case of Dennis
and the RAF jets. That does not really add anything to the force
of their complaint since the relevant human right which I have
identified there of the Convention is itself founded upon and
subject to the member states drawing a "fair balance"
between private property rights and the public interest in enabling
meritorious public projects to be carried out at sustainable cost.
Member states are entitled to draw that fair balance as a matter
of public policy in formulating their land compensation systems,
and I have made the submission that I set out in the last sentence
there and I need not repeat it.
10964. So that is the point of generality, and
it is fair to note that, in his note which he has supplied to
you this morning, Mr Dingemans at paragraph 2 fairly acknowledges
that you cannot really see the traders' case here as anything
other than raising a broad point of general public importance,
and we say he is right to acknowledge that, and we say that the
very fact that it cannot on analysis be limited to the circumstances
of the tenants themselves, that it is inevitably a matter that
goes to the heart of the issues that the Law Commission considered
so recently, reinforces our submission that it would not be appropriate
for a change of that kind to be the subject of any recommendation
by your Lordship's Committee in relation to an individual scheme.
It must await legislation on a more general basis.
10965. Having said that, I come to the attempt
that is nevertheless made by the Petitioners to find some precedent
here in the arrangements which were made by the Rail Regulator
in respect of St Pancras station, and that is a thoroughly unconvincing
10966. CHAIRMAN: I do not think that
has been pursued this morning. Is this something on which you
rely, Mr Dingemans?
10967. MR DINGEMANS: My Lord, what I
say is this is evidence of circumstances where particular railways
have identified a problem and addressed it other than through
the national compensation scheme. I do not for a moment suggest
that it is an exact analogy, and the importance is not for whether
it is a precedent or not because, of course, there are proper
distinctions. All I am saying is what it demonstrates is that
the National Compensation Code is not only the beginning and end;
there are other bits. So I rely on it for that purpose, but if
my learned friend is going to spend a long time saying it is completely
different, then I respectfully agree.
10968. MR MOULD: Well, I am not, because
of that helpful intervention, but the reasons why it is different
and why it does not give any sort of assistance to my learned
friend are set out in paragraphs 20 and 21.
10969. So we do say in conclusion that there
is neither merit in nor precedent for the SMTA's members to be
treated on an exceptional basis in the way they now contend for
in paragraph 28 of their submission.
10970. The short and straightforward conclusion
is this. As regards the potential for the Crossrail works, albeit
properly carried out, to lead to disturbance and so to loss of
trade or business to commercial owner occupiers of neighbouring
properties, there is no sound distinction to be drawn between
the members of the SMTA and other commercial owner occupiers of
such premises in Central London, and I take, of course, my Lord,
Lord Young's point in relation to sensitivity.
10971. Such disturbance in the event it occurs,
and for the reasons we have given we think that is really highly
unlikely to happen to any significant degree, will be the inevitable
consequence of the challenge of constructing a major new public
transport infrastructure scheme through the heart of a capital
city. If the Select Committee were to accede to the Tenants' Association's
Petition and extend to its members alone the right to be indemnified
for losses sustained in such circumstances, then it is fair to
say we would have no sound basis for resisting the grant of a
like indemnity to all other such commercial owner occupiers. Moreover,
the precedent would apply to future schemes of public works, and
for that reason, then, we would respectfully invite the Committee
not to accede to this Petition and to leave that matter properly
for consideration elsewhere as a matter of general legislation
and public policy by Government and Parliament.
10972. My Lord, I think I have outstayed my
welcome and, unless there is anything else, I will sit down.
10973. CHAIRMAN: Very well.
10974. LORD BROOKE OF ALVETHORPE: One
question, briefly. Your response has been predicated on the basis
that the revised scheme that you have shown to us will proceed.
What is the fallback position if it did not?
10975. MR MOULD: The fallback position
on the evidence is that we would construct the original scheme.
That is, as you know, we say highly unlikely to happen. The point
is that the detailed protective arrangements that are set out
10976. LORD BROOKE OF ALVETHORPE:
would simply be extended? There would not be any additionality?
10977. MR MOULD: No. It is more than
that. I would like just to emphasise the context. Those arrangements
were devised precisely for the purpose of providing protection
to the impact of the original scheme, so they were certainly intended
to be a proper set of protective provisions to meet those more
extensive potential impacts. Yes.
10978. CHAIRMAN: Now, Mr Dingemans, I
do not think you are going to get anywhere with a recommendation
for a new clause to go in the Bill.
10979. MR DINGEMANS: No. I hope I indicated
this morning that in many respects we are not worried whether
it is in the Bill or in the deed. The Petition was drafted at
a stage before they had offered us the deed, and now that we have
a direct contractual route, from a point of view of the law and
simplicity, which my Lady Baroness Fookes has identified, it is
much easier if you have it all in one document. So now we are
into a deed, if I persuade your Lordships that it is appropriate
to put in a provision, we would much rather it went into the deed.