Examination of Witnesses (Questions 12840
- 12859)
12840. MR GOODMAN: Yes. I cannot point
you directly to the scope of your powers in the Standing Orders
as I stand here, but the alternative position is that it does
not necessarily need to come from public funds, in the way that
a developer on a planning inquiry can make contributions towards
road building or education provision under a section 106 agreement.
There is no reason that cannot be requested from the developer.
12841. CHAIRMAN: Go ahead anyway. I think
there is a problem here.
12842. MR GOODMAN: It may be something
I can assist on procedurally after we have concluded this.
12843. CHAIRMAN: I do not want to interrupt
you. Please go ahead.
12844. MR GOODMAN: That is my second
suggestion. The third matter relates to the Cavendish Square option,
as I will call it. As I emphasized at the outset, I am fully aware
of the advice and rulings given by the Committee on putting forward
alternatives and I am not asking the Committee in this respect
to traverse the principle of the Bill.
12845. What I am asking—and, in my submission,
this is perfectly within the powers of this Committee—is
that a further supplementary environmental statement be asked
for. It is quite a usual practice within large planning developments
that if environmental issues arise, even after the end of a planning
inquiry, the Secretary of State will require under Regulation
19 of the Environmental Impact Assessment Regulations a further
supplement to the environmental statement to be produced covering
such issue as may have arisen.
12846. The reason I submit that this is an important
issue that should be considered is that the concern of the residents
of Mayfair is not simply that the harm will be less to those who
live in Mayfair, as characterised by my learned friend, but that
it would be less per se. If there were a route which was
looked at which created less harm in terms of disruption, lorry
movements and noise, then that provides an important analytical
basis upon which to assess the harm created by this development.
12847. If I give an example, where one has a
Green Belt proposal, one could look at that as an analogous situation.
If a house builder wants to build several hundred houses in the
Green Belt, he must prove that there are very special circumstances
which legitimise covering up the openness of the Green Belt. If
there is an alternative site in a brownfield location on the edge
of a town which could equally meet the housing need, and the developer
comes along and says, "The very special circumstances are
the dire need for housing in the South East" one is entitled
to say, "Why can't we build the 300 houses we need on this
preferable location?" So one can actually look at the extent
to which the proposal is justified. It does not mean one has to
then say, "Well, they must be built on the brownfield location"
but if there is that preferable possibility one can look at the
extent to which mitigation of any harm should be conditioned on
that planning permission.
12848. That is the analogy I draw here, that
by looking at an alternative it does not mean the environmental
statement comes back and says "This was less harmful in X,
Y and Z way". It may say "There are other reasons that
we still consider outweigh those harms" but if those harms
could have been avoided, there is a legitimacy in saying that
the kinds of measures that are taken to mitigate those harms on
the route that was chosen should be more stringent than perhaps
is being offered, and one of the points that has been raised is
the kind of undertakings that are put into the Construction Code
of Practice and whether they can be firmed up. So your Lordships
heard this morning about the burial ground and that best practice
methods would be used in respect of that. There are degrees to
which mitigation measures can be imposed and where routes are
being chosen which are not the preferable routes in terms of mitigation
of harm. In my submission, it is perfectly reasonable to expect
greater levels of intensity as regards mitigation to be imposed
and expected in relation to the way in which they propose it to
be constructed on the route that has been chosen.
12849. CHAIRMAN: Let me see if I can
understand you. Your analogy with the development proposals result
in an alternative Environmental Statement being produced before
the Secretary of State takes the decision on the appeal, is that
right?
12850. MR GOODMAN: Yes, my Lord. After
the inquiry has closed it is open to the Secretary of State, even
though he has heard all the evidence, but before he makes up his
mind to decide that he wants a further Environmental Statement,
a supplementary statement to be produced and to invite further
consultation responses in relation to that.
12851. CHAIRMAN: He has not yet made
a decision.
12852. MR GOODMAN: He has not yet made
the final decision, he may have made a `minded to' decision either
way.
12853. CHAIRMAN: Exactly. I think the
difference here is that Parliament has made a decision and it
is a little difficult to see how your suggestion fits in to the
way in which Parliament now proceeds.
12854. MR GOODMAN: This brings into play
the whole EIA issue and the legality of this Bill proceeding without
this supplementary statement being put forward. It is an issue
I did not necessarily want to canvas because previous rulings
have been made on it, but I would like to draw your attention
to an opinion provided by Richard Harwood, Counsel, at 39 Essex
Street which addresses this issue. My learned friend has seen
a copy of it. I will submit it to you, but I think it is preferable
if it is not all read out now. The basic conclusion to draw from
that is that Parliament's final decision, in my submission, is
yet to be made. It is open to amendments and, indeed, that is
why we are here today. If it should take the view that adequate
environmental information has not been put before it, in those
circumstances it should not proceed to take the final decision
because to do so would be in conflict with the EIA directive.
That is the legal reason why the flexibility has to be there,
notwithstanding the usual presumptions about procedure, to allow
for that further possibility.
12855. CHAIRMAN: Does the opinion you
are referring to relate to primary legislation?
12856. MR GOODMAN: The opinion relates
specifically to this project and to the specific alternative to
which I am hoping now to call evidence.
12857. CHAIRMAN: But at what stage of
this project?
12858. MR GOODMAN: It was drafted in
December of last year, so it is fairly up to date. If we have
copies of it, I will make them available to you and you can take
some time with it. What I propose to do is call Michael Schabas,
the witness, and ask him a few brief questions about the Cavendish
Square alternative which was considered and the view he takes
of the harm that would be created by that. If you are amenable
to that, I will call him now.
12859. CHAIRMAN: Yes, please.
MR MICHAEL
SCHABAS, sworn Examined by
MR ALEX
GOODMAN
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