Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 11040 - 11059)

  11040. CHAIRMAN: The 1973 Act, is it?

  11041. MR DINGEMANS: No, 1965 Act. The 1973 is use and 1965 is construction. It is exactly that point. When one is searching for the fair balance, the 1973 Act allowed noise and dust and pollution to trigger claims, the 1965 Act does not. Those are, as you heard from the market tenants themselves this morning, their real concerns. We do respectfully submit that those are concerns which are not hypothetical, are not overstated and they are based, as you have seen, on expert evidence. They have been met, and I do entirely accept this, my learned friend has gone a long way to attempt to meet and deal with problems, but now you are dealing with the residual issue, which is this: in the unlikely event that the dust suppression measures fail, even though they have exercised reasonable care and skill, who should pay? Should they bear the risk of that or should the individual market tenants whose meat is condemned, whose business is destroyed, should they bear the risk of that?

  11042. LORD YOUNG OF NORWOOD GREEN: I am struggling a bit with the catastrophic failure. Even on that last point that you said, for it to be catastrophic, I cannot see that. That is why I focused on proper performance. If they are carrying out their suppression measures, I can see that there might be an escape of dust, et cetera, but if they are carrying out the monitoring and carrying out proper performance of those measures, I find it hard to believe that there is going to be a catastrophic failure.

  11043. MR DINGEMANS: Can I try and meet your Lordship's proper point to me head-on in this way. Your Lordships will all be well aware of the Buncefield oil disaster where, well reported and now the subject of extensive litigation, those who are alleged to have been responsible for what was on any view a catastrophic failure say that it happened without any fault on their part and those who suffered the losses say, "You say that, but a, b, c". It is currently set down for trial to commence in October. I am not involved in that and that is a matter of record, so those matters can be determined. That is the point, my Lord. If there is a catastrophic failure and real losses accrue, then insurance companies, being what they are, and other aspects being what they are, they will inevitably test whether they should pay against whether there has been a failure of proper performance. You are effectively putting the market traders to proof in that situation or of that which your Lordships assume. If we are going to prove it anyway, why not save us the time, the trouble and the effort of attempting to prove that in defended legal proceedings. The cost of the Buncefield litigation has been the subject already of comment in circumstances where the individual market traders can afford to appear before when they combine together through their association and ask for representation, such as today, but for individual losses it simply will not happen.

  11044. LORD BROOKE OF ALVERTHORPE: Where I find the conflict, and you did not mention it in your final summing up, is accepting all that, yet I hear this morning that they are prepared to support applications for the developments with the private sector which presumably could give rise to all these problems.

  11045. MR DINGEMANS: My Lord, I am glad you raise that expressly if it troubles your Lordships. First of all, if you look at where it is, it is right down on the other side. It does not affect the bits that are the sensitive areas where the meat comes in. My learned friend says it all comes in hermetically sealed, well it does and is intended to, but the evidence is doors open and the trouble is with dust, it comes through. The other aspect of the evidence, which is important, is they have not yet got planning permission, it has gone to an inquiry, and there are still discussions ongoing about what compensation provisions may be appropriate. They are unlikely to be in a situation of supporting that if they were going to walk into exactly the same problems.

  11046. LORD BROOKE OF ALVERTHORPE: But it is not just dust there, is it, this compensation extends beyond dust. It is into extra traffic interfering with business, fewer people coming to shops, et cetera, that would be precisely the same with this other development.

  11047. MR DINGEMANS: My Lord, subject to this, what you are not doing is effectively destroying an old building for perfectly proper reasons, dropping that building and creating underneath that all the escalator, et cetera, site, it is a completely different scale of development.

  11048. MR MOULD: I am sorry, I do not want the Committee to have any doubt as to the facts. My understanding, and my learned friend will confirm if I am right or wrong on this, is that scheme does involve significant works of demolition. I think I am right in saying that the general market building is to be, if not totally, certainly substantially structurally demolished.

  11049. MR DINGEMANS: You have seen them all, they all have their own individual view and they support that at the moment because their perception, whether it is right or wrong, is completely different in terms of scale and intrusiveness. For a start, you are not losing half the parking under statutory powers. At the moment the Bill you are being asked to approve provided for the stopping up of Lindsay Street, well that has been met by an undertaking to maintain it for 38 and 44 tonnes, but you are still going to give them the powers at the moment to effectively take over parts of Lindsey Street. They say they hope they will not need it and so do we, but that is why we are in, we respectfully submit, a completely different situation. That is why the market traders and Mr Lawrence, who gave evidence about it, have been able to support it. Even there, and of course it is easier sometimes to negotiate with private companies than it is with public bodies, they are still seeking proper provisions for compensation. Of course, they are not finalised yet because the scheme is not going ahead yet. Whereas, you are effectively the negotiating Committee for the private company. We are asking you for those provisions and we submit that they ought properly to be granted to us.

  11050. BARONESS FOOKES: Is not the issue of this other building, that it goes up down or whatever, is that not, as far as we are concerned, a red herring?

  11051. MR DINGEMANS: We would respectfully submit, my Lady, first of all it is a scheme which, as I understand it, and I had only been told about it, I think it was last month, is not yet at planning permission stage. I was only told about it because my learned friend very fairly raised it with us beforehand to warn us about that issue. It is a matter where there are still ongoing negotiations. Would my learned friend be content to offer this undertaking to the Committee, that if we get an undertaking from the other building site developers they are going to match similar protection? Of course they are not, so my Lady is obviously right. It is a red herring because we simply do not know yet what compensation provisions will be agreed. All one can say fairly is that Mr Lawrence was reasonably confident, otherwise he would not be supporting the Promoter and no doubt that is how the private sector will operate, try and ensure that they have on side those people who might be affected. The difference with a public body is this, they are taking from Parliament the statutory powers to do these matters and that is why we do ask your Lordships, exercising your constitutional function, to draw the fair balance that we cannot negotiate.

  11052. LORD BROOKE OF ALVERTHORPE: We would have to balance against that the potential costs that might arise for the public purse as well.

  11053. MR DINGEMANS: My Lord, that is absolutely right, but it is entirely wrong to say that the beginning and ending of it is the National Compensation Code and the fact that in that it is left as a matter of policy for Government because, of course, there are any number of public projects. When you are talking about specific statutory approval by the Hybrid Bill, you have had the Channel Tunnel in the situation, the Crossrail Bill, then it has always been for you on the Committee to strike that fair balance, to consider really whether these are people who are overplaying it or whether we have identified real concerns and whether we ought to be properly looked after.

  11054. Perhaps I can just finish by saying this: if we had been overplaying our hand and not identifying real concerns, the House of Commons would not have identified that we required a bit more help; my learned friend would not have offered undertaking No 234 and we would not be in the happy situation, and I am very grateful to him, that we have the deed. But we do respectfully identify for the detailed reasons set out in the note that there is something missing, and the most important part, the dust and that aspect, the loss of the parking site, is what we will suffer from.

  11055. BARONESS FOOKES: Would you regard some kind of limitation on the amount, either before a compensation charge is triggered or some maximum, as a compromise?

  11056. MR DINGEMANS: Of course it would, my Lord —

  11057. BARONESS FOOKES: A cap, yes.

  11058. MR DINGEMANS: — and those are all matters that should be properly left for the legislature to determine because you know more about funding. We can only see the snapshot that is Farringdon station, whereas you can have some regard for the overall level of the schemes, and I have seen some of the opening statements that have been made.

  11059. CHAIRMAN: Mr Dingemans, we are going round in circles.

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