Examination of Witnesses (Questions 12800
- 12819)
12800. MR GOODMAN: I have now had it,
yes. I do not have any hope or expectation of dealing with every
single one of those in anything like the detail necessary, so
I have tried to draw out simply three recommendations that I would
like this Committee to consider making. The first recommendation
relates to what is now clause 21 and you have heard about that
and that is the clause that removes the right of my clients to
sue the undertaker should there be a nuisance created by noise.
Secondly, my learned friend has slightly mis-characterised my
second point. I am not seeking to raise a point about the provision
of information thus far in the proceedings, that is not what I
am making a point or complaint about—
12801. CHAIRMAN: I am very glad to hear
it because we had two hours of this on Wednesday.
12802. MR GOODMAN: I am glad I am not
repeating what has already been heard by you. What I hope to put
forward is a proposal whereby throughout the construction period
there will be made available some form of independent agency which
can provide advice and assistance, whether technical or legal,
to those whose homes are affected, particularly if something goes
wrong; in other words, a third agency outside the local authorities
and outside Crossrail, indeed outside the Secretary of State,
who can be trusted by the local residents as someone they can
turn to. I will elaborate on that proposal in due course. The
third point is that I am not promoting any alternative routes
and I can assure you that I understand the scope of the powers
of this Committee and the Standing Orders and it certainly does
not have any powers, I think that has been made clear. I have
seen previous rulings to order that the principle of this Bill
be reconsidered and that is not the reason the alternatives issue,
if I may put it that way, is being raised again.
12803. What I am seeking is a recommendation
that the alternatives that have not been considered within the
Environmental Statement thus far are subjected to analysis. It
does not go to the principle of the Bill and it does not forestall
proceedings to any significant degree in the way that promoting
an alternative route would do, but what it then enables is consideration
to be given to the extent and nature of harm that is caused by
the route that has been chosen. It enables a comparative analysis
to be undertaken and that is a valuable tool and indeed that is
the very reason why the Environmental Statement is required to
contain consideration of alternatives, so that that analytical
process can be undertaken. Those are the three suggestions or
recommendations that I will be asking you to make in outline.
12804. CHAIRMAN: We will listen to those
with interest.
12805. MR GOODMAN: The context I have
set out in my written submissions, and I appreciate you have not
had the opportunity of reading them. I had prepared them in the
hope that my learned friend would have at least some opportunity
of knowing which points out of the Petition were to be emphasized
this morning, and she has had an opportunity, and certainly will
have another one in due course.
12806. To set the context in which these recommendations
are being sought, this is a Bill which gives sweeping powers to
the undertaker, but it goes further than just giving them powers;
it provides exemptions from many of the conventional controls
upon the nature of construction. Clause 21, which we have already
canvassed, is one example of that. In place of those controls,
for example, in place of the ability of a person to take an action
in the courts for statutory nuisance, there are protections put
in place whereby local authorities are responsible for safeguarding
the interests of residents.
12807. What I wish to impress upon you is the
anxiety that that raises in many of the residents, because there
is considerable variability between the extent to which local
authorities can be relied on to act swiftly when problems occur.
If all possibility of independent remedial action or independent
redress being taken is removed from ordinary people, from residents,
that poses a considerable problem to them and raises considerable
anxieties.
12808. I make these submissions in the context
of a general recognition now within the field of environmental
law and protection of the environment that it is not enough to
simply rely upon authorities to paternalistically safeguard the
interests of the people affected and concerned. What has been
seen, particularly over the last five years, in national and international
legislation is that the interests of third parties, of local residents,
are to be taken into account and that public participation is
heavily emphasized.
12809. I set out the background to this in my
summary submissions, and in paragraph 5, this goes back to a report
from the Royal Commission on Environmental Pollution. This quotation
perhaps summarises the point that "in democracy it is an
unhealthy sign when authority claims omniscience and dismisses
grass roots concern as irrational." It is that principle
which has fed into a number of international treaties. In 1992
the Declaration on Environmental Development agreed at the Earth
Summit in Rio, which you will no doubt recall, set out Principle
10, stating that "Environmental issues are best handled with
the participation of all concerned citizens, at the relevant level"
and "States shall facilitate and encourage public awareness
and participation by making information widely available. Effective
access to judicial and administrative proceedings, including redress
and remedy, shall be provided."
12810. That principle set out there feeds into
the Aarhus Convention, which my learned friend has already referred
to. This is an international convention signed in 2001. That Convention
sets out what are called its three pillars of access to information,
public participation in decision making and access to justice.
It is that Convention which sets the context for the environmental
impact assessment directive that you have already heard about
a number of times, the strategic environmental assessment directive
and numerous implementing regulations, and indeed the public participation
directive, which are all coming from European level.
12811. So the trend and the focus is very much
on the notion that ordinary people must be able to participate
in these kinds of environmental projects, and this project perhaps
more than any other, such a major scheme, which will have such
wide-ranging effects on the lives of the people it affects. This
has been recognised, and I have quoted from Mr Justice Sullivan
in the recent Greenpeace case, in which the Government's
consultation on nuclear power was quashed, and the reason that
was quashed was for a failure to properly and fully consult the
public. The conclusion he draws there is that, "Whatever
the position may be in other policy areas, in the development
of policy in the environmental field consultation is no longer
a privilege to be granted or withheld at will by the executive.
The United Kingdom Government is a signatory to the Convention
on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters" and he quotes
the Preamble to the Aarhus Convention.
12812. So it is no longer, as Mr Justice Sullivan
is saying, the situation that consultation is merely a privilege;
it is an essential part, not only at this stage—and I fully
accept that much information has been made available—but
as the process goes along, because this is a project which leaves
many of the details and many of the parts of its process which
will actually affect people—the way in which construction
is managed, the kind of agreements that are come to with local
authorities about the way it is managed—those detailed decisions
it leaves to a later stage. It is crucial that at that later stage
the people affected also have an opportunity of taking part in
those decisions again.
12813. That sets the context in which the three
proposals I am now to set out to you arise. The first one relates
to Clause 20, now 21. I have quoted it in full. It is paragraph
11 of my summary submissions.
12814. CHAIRMAN: You do not need to read
that out again.
12815. MR GOODMAN: I shall not read it
out but the effect of it, as my learned friend has summarised,
is that where, for example, by lorries passing or drilling or
works there is noise of such a degree that it could be categorised
as a nuisance, in other words, that it is actually injurious to
personal comfort, where that occurs, the usual situation is that
one can take a private action in the magistrates' court, obtain
an injunction and obtain damages. That usual procedure, which
would safeguard the rights of ordinary people and offer a procedure
by which they personally can take matters into their own hands,
is to be suspended in this case. As my learned friend has explained,
what happens in its place is that the undertaker will agree with
the local authority a construction plan, will apply under section
60 of the Control of Pollution Act, and then under section 61
a plan is set out with various conditions as to how the construction
should go ahead. Provided those conditions are complied with,
even if a nuisance is being created by the way the project is
being managed, that will offer a complete defence to any claim
against them. So it legitimises the possibility of levels of noise
being created which are injurious to people's comfort, merely
by virtue of the fact that an agreement has been made with the
local authority.
12816. These agreements are commonplace in construction
projects and, as the legislation is set out currently, it is made
express in section 61(9) that the fact of having made such an
agreement provides no defence to an action in nuisance. So for
any small-scale, ordinary project, a construction team cannot
say, "Well, we agreed with the local authority we could do
it this way." There is always the implied limitation that
it must not exceed the bounds and move into an area which would
constitute a nuisance. That would be any ordinary scheme. What
the Promoter is seeking is something that goes beyond the majority
of construction projects and takes out of the hands of the private
individual the possibility of seeking any redress and makes them
dependent upon the local authority enforcing a breach of any of
the conditions of that construction project.
12817. This has been raised in the Petition,
and in the response received—it has been referred to this
morning—from the Promoter the only explanation that was
given for this is quoted at my paragraph 14, that it will "enable
the nominated undertaker to carry out his works, as approved by
the local authority, with greater certainty." I do not dispute
that being immune from being sued for creating a nuisance will
create greater certainty. Of course it will. Anyone who is immune
from being sued can act with greater certainty but that does not
answer the concerns that the residents have. It does not explain
why it should be necessary to legitimise the possibility of creating
levels of noise that would be classified as nuisance.
12818. That is one very good example—and
there are numerous others—of how procedurally the important
thing is that the power is taken out of the hands of local residents,
who are in a position to do nothing, even though a nuisance is
being created. They have to rely on the local authority.
12819. CHAIRMAN: Mr Goodman, one of the
things that has happened is that various individual local authorities
have taken on the role of organising a generic procedure and probably
criteria for this sort of thing. My recollection is that Havering
has been dealing with construction noise but it has dealt with
it on behalf of all the local authorities through whom this route
will go. Therefore, there should be common ground and a common
approach as between all the local authorities.
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