Examination of Witnesses (Questions 11080
- 11099)
11080. MR DINGEMANS: My Lord, yes.
11081. CHAIRMAN: Clause 7 seems to me
to be a fairly thorough exploration of the problems about dust,
and this has all come from the Promoters so presumably it is not
something from which they now wish to resile. They are not going
to do concrete batching; we have not been arguing about noise
and vibration; vermin control—yes, I appreciate that has
been touched upon but it is not the centre of your issue, and
we then get to 13.
11082. MR DINGEMANS: My Lord, yes.
11083. CHAIRMAN: I see no reference to
statutory anythings.
11084. MR DINGEMANS: Can you look at
clause 13.1?[32]
It says: "In the assessment of compensation payable to the
Trader as a result of injurious affection", bear in mind
those words, and then go to clause 1.1 —[33]
11085. CHAIRMAN: But it does not say
that.
11086. MR DINGEMANS: It says "`injurious
affection claim' means a claim made under section 10 of the Compulsory
Purchase Act ... ".
11087. CHAIRMAN: Because it is defined
in 1.1?
11088. MR DINGEMANS: Yes. Otherwise I
would be with your Lordship, but that is why clause 13 is specifically
dealing with the statutory plus the undertaking 234.
11089. BARONESS FOOKES: So what about
a redefinition of "injurious affection"?
11090. MR DINGEMANS: Well, there are
a number of different ways —
11091. CHAIRMAN: Then we get back into
the indemnity case.
11092. MR DINGEMANS: Yes, effectively.
At the moment we have a claim for breach of contract—that
causes no problems. The real issue between us concerns the limitations
of the 1965 Act, and all we are really asking for is a situation
where we are not restricted to proving a common law nuisance because
a common law nuisance will not extend principally to dust and
losses caused by taking over parking bays on limited periods.
11093. LORD YOUNG OF NORWOOD GREEN: Mr
Dingemans, when the undertaking is unqualified you are happy,
because you referred us to 4.1?
11094. MR DINGEMANS: Yes.
11095. LORD YOUNG OF NORWOOD GREEN: The
Lord Chairman referred you to the section on dust and said that
if that was strengthened that could be a route forward, bearing
in mind it is one of the key areas of your concern?
11096. MR DINGEMANS: Your Lordship is
absolutely right, the other way of resolving the concerns we have
is to take clause 13 out and leave it with the undertakings because
it has nothing here nor there, and then —
11097. LORD YOUNG OF NORWOOD GREEN: Well,
let me finish, because I do not know whether what I am saying
will be achievable and I am not sure of the Promoter's attitude.
So strengthening 7.1 would help, and I also looked at 5.1—if
I may, Lord Chairman?
11098. CHAIRMAN: Yes, go ahead.
11099. LORD YOUNG OF NORWOOD GREEN: —
because that seemed to me to keep coming up again and again, and
in the light of the Promoters telling us that, short of being
struck by lightening twice, they see it as highly unlikely they
are not going to achieve the new proposals for the escalator,
et cetera, why could that not be strengthened for an undertaking
that they will maintain six loading bays?
32 Committee Ref: P73, Draft Deed between the Nominated
Undertaker and individual Smithfield Market Traders-Compensation
042) Back
33
Committee Ref: P73, Draft Deed between the Nominated Undertaker
and individual Smithfield Market Traders-Definitions (LONDLB-23-04-037) Back
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