Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10960 - 10979)

  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 pages 44-50.

  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 would follow.

  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 precedent —

  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.

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