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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