APPENDIX 2: CROSSRAIL BILL
Memorandum by the Department for Transport
1. This memorandum identifies provisions for
delegated legislation in the Crossrail Bill 2007/08. It describes
the Bill in outline and deals in detail with the delegated powers
it confers.
2. The main purpose of this Bill is to secure
the powers necessary to build Crossrail. Crossrail will consist
of new rail tunnels running west-east through central London connecting
directly with existing surface rail routes to Maidenhead and Heathrow
in the west and Shenfield and Abbey Wood in the east. By connecting
the major London rail terminals of Paddington and Liverpool Street,
Crossrail will enable interconnecting mainline train services
to cross the centre of London via a number of new purpose-built
stations.
Hybrid Bills
3. The Bill is a Hybrid Bill because it contains
provisions which have an impact on the interests of particular
individuals, as well as containing provisions of a more general
public nature. A Hybrid Bill is a Public Bill promoted by the
Government which is treated like a Private Bill for part of its
passage through Parliament, in addition to being scrutinised in
the same way as any other Public Bill.
4. This means that individuals, groups and organisations
opposed to aspects of the Bill have an opportunity to oppose it
or to seek its amendment before a Select Committee in either or
both Houses. Those who are especially and directly affected by
the Bill may "petition" against it. Petitioning against
the Crossrail Bill in the House of Commons took place during previous
Parliamentary sessions. There is a second opportunity to petition
against the Bill in the House of Lords, where petitioners may
have their arguments heard by a Select Committee of that House.
Summary of the Bill's provisions
5. The Bill comprises sixty-seven clauses and
seventeen schedules. The main provisions of the Bill provide for:
(a) the authorisation of works necessary
to build Crossrail and associated works. These powers are vested
in "the nominated undertaker" and the Bill gives the
Secretary of State the ability to nominate that undertaker. The
Department for Transport is currently being assisted in taking
the project forward by Cross London Rail Links Limited (CLRL)
- a Department for Transport/Transport for London joint venture
company. No binding agreements have yet been reached as to the
final form of project delivery (including the letting and management
of major construction contracts) and so flexibility is still required
in the Bill. However, copies of a non-binding Heads of Terms agreement
between the Secretary of State and TfL as to project governance
have been made available to Parliament and the public (for which
see www.dft.gov.uk/pgr/rail/pi/crossrail/crossrailheadsofterms)
;
(b) the acquisition of land and interests
in land necessary for those works. The powers of compulsory purchase
sought in the Bill are vested in the Secretary of State but could
also be transferred to the Greater London Authority or Transport
for London, again to provide flexibility in implementation. The
compulsory purchase powers in the Bill would expire five years
after Royal Assent, though they could be extended;
(c) the establishment of a planning and heritage
regime for the works. The former seeks to give local planning
authorities and the various statutory bodies an appropriate degree
of control over the planning aspects of the project (and will
be augmented by other arrangements, such as a Planning Memorandum
and a Construction Code of Practice, designed to sit alongside
the legislative provisions). Heritage issues will also be the
subject of separate agreements with English Heritage and the local
authorities.
(d) The Bill deems planning permission to
be granted for Crossrail works specified in Schedule 1 to the
Bill and any ancillary works whose environmental impacts have
been assessed. However, certain reserved matters - of relative
detail - remain the concern of the relevant planning authority
in whose area the works will take place. The roles of such authorities
in respect of such reserved matters are as set out in Schedule
7. These roles vary depending on the nature of the authority concerned
and, in particular, whether the hybrid Bill process means that
they have entered into agreements with the Secretary of State
about the handling of such planning applications. The Bill contains
various powers to make delegated legislation which relate to this
area;
(e) the application of existing railway and
other miscellaneous legislation to Crossrail. Chief amongst
these are the provisions which seek to establish the railways
regulatory regime which will apply to Crossrail and its interface
with the existing network;
(f) the transfer by transfer scheme of property,
rights and liabilities from CLRL or the Secretary of State,
or their wholly-owned subsidiaries, or, with their consent, the
GLA, TfL, the London Development Agency or any of their subsidiaries,
that may be necessary to ensure that the nominated undertaker
is capable of delivering the project; and
(g) the devolution of control of the Crossrail
project to the Greater London Authority or Transport for London
(or a combination of the two).
6. The provisions of the Bill and the legislative
framework that it seeks to establish are similar to those in the
Channel Tunnel Rail Link Act 1996, the last Hybrid Bill for a
railway project. This is because the 1996 Act has been put to
the test and by and large has worked well (although some changes
from the 1996 Act framework have been made, either as a result
of the particular requirements of Crossrail or following experience
in implementing the 1996 Act). In many circumstances, drawing
on the experience of the 1996 Act, the Department has taken similar
powers to make various provision in secondary legislation and
have often put forward the same level of Parliamentary scrutiny
for such provision. This has, however, been done with consideration
of whether such an approach was or remains appropriate.
Description and analysis of delegated powers
7. Full details of the powers to make delegated
legislation is set out below. This section of the Memorandum describes
the powers taken, explains their purpose, explains why the matter
is to be left to delegated legislation rather than included in
the Bill, and specifies the Parliamentary scrutiny procedure provided
for each power (if any).
Clause 6(7) - Power to extend the Compulsory
Purchase Powers; form
and procedure - special Parliamentary procedure
8. Clause 6 allows the Secretary of State to
acquire by compulsion land within identified limits and within
a timescale set out in subsection (6). Clause 6(7) allows the
Secretary of State, by order, to extend the time limit for the
acquisition of such land. By virtue of clause 6(8), this extension
may be done only once in relation to any particular bit of land,
and the time limit may be extended by no more than five years.
Any such order would be subject to special Parliamentary procedure.
9. These provisions have already been amended
at the request of the House of Commons Select Committee (which
heard petitions against the Bill). Originally there was no limit
on the number of times, or duration for which, the powers of compulsory
acquisition could have been extended. In response to concerns
voiced by petitioners against the Bill the Department introduced
the limitations in clause 6(8). The Department also tried to assist
the Select Committee be providing to them an explanation of the
special Parliamentary procedure (this explanation follows below
(for ease of reference): Erskine May and, of course, the relevant
legislation provide more detail).
10. The extension of CPO powers can only be done
by the Secretary of State (the powers are not devolvable to London
government) by a statutory order subject to "special parliamentary
procedure".
11. Special parliamentary procedure is an unusual
procedure established by the Statutory Orders (Special Procedure)
Act 1945 (as amended by the Statutory Orders (Special Procedure)
Act 1965). The procedure is particularly relevant in cases such
as this where land is subject to compulsory acquisition and where
there is a need for renewal of such powers to be subject to scrutiny.
12. A special procedure order must first be laid
by a Minister before Parliament, along with a certificate stating
that various preliminary proceedings have been complied with.
This is a trigger, allowing objectors (such as those whose land
is concerned) 21 days to deposit petitions against the order or
in favour of amendments. The Chairman of Ways and Means and the
Chairman of Committees in the House of Lords determine any questions
of standing before reporting to both Houses whether any petitions
remain against the order. Within 21 days of this report, any Member
of either House may move that the order be annulled or that petitions
against the order be not referred to a joint committee.
13. If the order is annulled there can be no
further proceedings on it, although a fresh order may later be
introduced. If no further petitions remain against the order,
or seeking amendments to it, then the order comes into force.
Otherwise the remaining petitions are referred to a Joint Committee,
where it is for the petitioners to prove the merits of their case.
The Committee may approve the order, with or without amendments,
or decline to approve it.
14. If the order is reported from the Committee
without amendment, or with amendments which are accepted by the
Minister, it comes into force. In the event that the order is
reported with amendments which are not accepted, or the order
is not approved by the Committee, the order may be confirmed via
the introduction of a public bill.
15. Although part of a little-used process, special
procedure orders are suited to the kind of scenario covered by
clause 6 of the Crossrail Bill (i.e. a power to extend compulsory
purchase powers) in that they enable objections to be made by
individuals and provide for active scrutiny by Parliament. The
Department suggests that the level of scrutiny applying to this
power is therefore appropriate.
Clause 11(2) - Power to extend ten year time period
within which development must be begun; form
and procedure - Order subject to negative resolution
16. Clause 10 of the Crossrail Bill deems planning
permission to be granted to certain key (and other) Crossrail
works, including new stations within the central section of the
route, to be constructed (such works are termed "scheduled
works" because they are specifically identified in Schedule
1 to the Bill). Clause 11 makes this deemed planning permission
conferred by clause 10 conditional upon development being begun
within ten years of Royal Assent. Clause 11(2) allows the Secretary
of State to extend the period of deemed planning permission. The
power is exercisable by order in a statutory instrument subject
to the negative resolution procedure.
17. Consistently with clause 6, all land to be
acquired for the project should be so acquired within five years
of Royal Assent (or possibly ten if this period is extended using
clause 6(7)). However, the ability to commence some development
beyond this ten year period without seeking further planning permission
may be necessary. This contingency is a consequence of the size
and complexity of the Crossrail project, which has a construction
period that is expected to last a number of years and for which
not all works will commence at the same time.
18. It is therefore appropriate to take this
power, subject to the negative resolution procedure, which would
enable adequate scrutiny in light of whatever (unforeseen) circumstances
there may be at the time.
Clause 12 - Provision to make regulations about
fees for relevant planning applications; form
and procedure - Regulations subject to negative resolution
19. Clause 12(1) allows the Secretary of State
for Transport and the Secretary of State for Communities and Local
Government, acting jointly, to make regulations about the fees
to be charged by local planning authorities for the requests for
approval of details under Schedule 7 of the Bill to be submitted
for Crossrail. In effect, the provision in these regulations will
be in place of the provision made under section 303 of the Town
and Country Planning Act 1990 (fees for planning applications).
20. The power to make such regulations - and
the degree of Parliamentary scrutiny for such regulations - echoes
the power in section 11 of the Channel Tunnel Rail Link Act 1996
(c.61). In fact the Department would expect to make regulations
resembling those made under that Act (see S.I. 1997/822).
21. The reason for providing a fees structure
specifically for Crossrail is that the nature of the requests
for approval differs from those under a normal planning application,
being limited to requests for approval of certain specific operations
or works as set out in Schedule 7.
Clause 13(1) - Provision to disapply by order
the deemed planning permission under the Bill in respect of the
maintenance or alteration of development; form
and procedure - Order to be laid before Parliament after being
made
22. Clause 13(1) allows the Secretary of State,
by means of an order made by statutory instrument, to disapply
the deemed planning permission granted by clause 10(1) in respect
of development consisting of operations for the maintenance or
alteration of Crossrail works from the date specified in the order.
In essence, this provision allows the Secretary of State to switch
off the deemed planning permission granted by the Bill in respect
of future works on the resultant Crossrail structures. This is
most likely to be used in the case of the electrification and
signalling work done on sections of the existing railway network,
and would ensure that a single planning regime covered works in
relation to existing track after the Crossrail construction phase
has been completed. Given the flexibility provided by the Bill
in terms of the arrangements for future ownership and operation
of the Crossrail infrastructure, it is appropriate to afford corresponding
discretion to the Secretary of State in exercising this power
to 'switch off' the deemed planning permission.
23. Exercise of this power would be an act of
administrative simplification following constructing of Crossrail,
restoring the normal planning regime for certain works. As such
it requires transparency rather than direct Parliamentary scrutiny,
hence the Department believes that all that is required is for
the resultant Order to be laid before Parliament after making.
Clause 20(4) - Power to make provision in relation
to appeals about the control of construction sites; form
and procedure - Regulations made by statutory instrument not subject
to Parliamentary procedure
24. Clause 20 provides bespoke provision concerning
disputes about construction site noise or prior consent for work
on construction sites. These issues would fall within the "reserved
matters" over which local planning authorities have control
- see paragraph 5c above for relevant comments. Clauses 20(1)
to (3) modify the operation of sections 60 and 61 of the Control
of Pollution Act 1974, so that appeals under those provisions
are determined by the Secretary of State (rather than by a magistrates'
court) or, if the parties agree, by arbitration.
25. Clause 20(4) enables the Secretary of State
for Transport and the Secretary of State for the Environment,
Food and Rural Affairs, acting jointly, to make regulations about
such procedural matters in relation to such arbitrations as may
be made by regulations in relation to appeals under section 70
of the 1974 Act. Such regulations would be made by statutory instrument.
26. Clause 20 is closely modelled on section
29 of the Channel Tunnel Rail Link Act 1996.
27. The power would be used if it were considered
necessary to supplement the ordinary procedures for statutory
arbitrations with tailored provision for noise appeals under
Part 3 of the Control of Pollution Act 1974 similar to that found
in regulations under section 70(2) and (3) of that Act. The equivalent
power was not, in fact, exercised under the 1996 Act. The power
is to be exercised jointly between the Secretary of State for
Transport and the Secretary of State for the Environment, Food
and Rural Affairs because the latter has policy responsibility
for control of construction noise.
28. No parliamentary procedure is envisaged,
as was the case in the 1996 Act, as the power is limited to matters
of administrative procedure.
Clause 24(1), 24(2), 24(3) - Power of the Secretary
of State to give directions to the ORR specifying the minimum
operating service: directions
not made by statutory instrument not subject to Parliamentary
procedure
29. Clause 24(1) enables the Secretary of State,
after consultation (under clause 24(4)), to specify the minimum
operating levels that will establish the principal Crossrail passenger
services from a specified date (specified under clause 24(3)).
Clause 24(2) enables the Secretary of State to distinguish between
important Crossrail services that the Office of Rail Regulation
("ORR") must facilitate and others to which it need
not give special consideration.
30. This direction, which must be published,
sets the basis for the ORR's overriding duty to facilitate the
principal Crossrail passenger services under clause 23, which
obliges the ORR not to grant access rights to other railway operators
that would run beyond the start of the prospective principal Crossrail
passenger services and would conflict with them.
31. Whilst the direction sets the basis for the
systematic effect on the ORR's access contract functions detailed
in clause 23, the direction itself constitutes a non-legislative
strategic decision about use of the railway that is based on current
and future consultation and train timetabling work. The Secretary
of State normally has a considerable influence on network usage
strategy, not least because he specifies passenger franchises.
Where such strategy relates to Crossrail services, clauses 23
and 24 change the balance of decision making as between the Secretary
of State and the ORR. Simply because this balance changes, it
is not considered necessary to subject utilisation strategy to
Parliamentary scrutiny by placing the directions before it.
32. There are other powers of direction contained
in the railway clauses, but they, even more so than in clause
24, relate to particular executive-style decisions made in a specific
or localised context. Many of these are, for example, comparable
to the ORR's existing powers to require entry into an access contract
as contained in the Railways Act 1993 (see section 17 of the Act).
The Department therefore considers those in this section of the
Bill to be non-legislative directions and hence has not elaborated
on this for the purposes of this memorandum.
Clause 27(7) - Power to make provision in relation
to the carrying out by the Office of Rail Regulation (henceforth
"ORR") of functions relating to the amendment of rail
access contracts; form
and procedure - Regulations subject to negative resolution
33. Clause 27 operates in respect of access contracts
entered into prior to the enactment of the Bill that may affect
the operation of principal Crossrail passenger services. "Access
contracts" are contracts conferring permission to use a railway
facility, e.g. contracts between Network Rail and train operators
allowing the latter to run trains for a corresponding fee. Clause
27(2) provides that once the Secretary of State has specified
minimum operating levels for the purpose of defining a "principal
Crossrail passenger service", the Office of Rail Regulation
("ORR") must identify contracts that would prejudice
the principal Crossrail passenger services from their specified
start of operation.
34. Under clause 27, where the Secretary of State
objects to a prejudicial (conflicting) access contract, the ORR
may require a variation to that contract, or may declare it void
in whole or in part. When doing so, the ORR may give directions
requiring the payment of compensation.
35. Clause 27(7) provides a power for the Secretary
of State by regulations by statutory instrument to make provision
in relation to the carrying out by the ORR of its functions of
interfering with access contracts and its discretion to require
compensation to be paid. To understand better the form of any
likely regulations, indicative reference is made to paragraphs
3 to 6 of Schedule 4 to the Railways Act 1993 (c. 43). Paragraphs
3 to 6 of that Schedule deal with notifying and informing both
directly affected persons, and other interested persons, about
the imposition of a contract. They also make provision for the
ORR to hear representations, in respect of the ORR's decision-making
functions and concerning the effects of directions on those affected
and interested persons.
36. The regulation making power under clause
27 is essentially procedural and there is an explicit indication
on the face of the Bill of the general nature they might follow.
The Department therefore considers that it is unnecessary to put
this detail in the Bill itself and that the negative resolution
procedure is an appropriate mechanism for scrutiny of any resultant
regulations.
Clause 28(8) - Power to make provision about the
consideration of access contracts; form
and procedure - Regulations subject to negative resolution
37. Clause 28(8) is relevant where a would-be
Crossrail passenger service provider applies to the ORR for a
direction requiring a railway facility owner to give it contractual
rights to run passenger services (otherwise than through the central
tunnel). It was conceived as being a way of ensuring that a Crossrail
passenger service, consistent with that which underpins the social
and financial case for Crossrail, can operate an integrated service
pattern across the route.
38. Schedule 4 to the Railways Act 1993 sets
out the procedure by which the ORR considers, under existing legislation,
whether to compel the owner of a rail asset to offer an access
contract to an applicant (see the comments in paragraph 35 above).
Under clause 28, the ORR's functions of (potentially) directing
the entry into of access contracts will be changed in the circumstances
identified in clause 28(1). In such circumstances, procedures
broadly based on - but not exactly corresponding to - those set
out in Schedule 4 would be desirable.
39. Clause 28(8) therefore allows for the Secretary
of State to make regulations governing the procedures which the
ORR would follow in respect of someone seeking an access contract
by compulsion. The terms of such regulations would be relatively
detailed and because they will be procedural and broadly precedented
by existing mechanisms the Department considers that they are
appropriate matters to be addressed in secondary legislation subject
to negative resolution.
Clause 30(1), 30(2) - Power to make provision
about the disapplication of sections 18 and 22 of the Railways
Act to infrastructure;
form and procedure - Order laid before Parliament after making
40. Clauses 30(1) and (2) allow the Secretary
of State, by order, to disapply provisions in the Railways Act
1993 which would otherwise require access contracts to be pre-approved
by the Office of Rail Regulation ("ORR") in relation
to, or associated with, the principal Crossrail tunnel. The purpose
of such provisions is to prevent the ORR coming to a different
strategic view on the desirability of a service pattern at variance
with the Secretary of State's views and at variance with a service
which underpins the social and financial case for Crossrail.
41. The parameters of a principal Crossrail passenger
service are currently being considered (albeit in the different
context of an ORR consultation) and much timetabling work is being
undertaken - as explained further below. However, the exact parameters
of and parties to of an access contract that would "support"
principal Crossrail passenger services are subject to further
work and consideration. The Secretary of State cannot, therefore,
specify in the Bill what access contracts or classes of access
contracts should go without ORR pre-approval - in other words,
delegation of the power to make this specification is necessary.
42. It is proper to note that under section 20
of the Railways Act 1993, certain facility owners (such as owners
of metro systems) are exempted from the requirement to have their
access contracts pre-approved by the ORR. Such exemptions are
made under order subject to the negative resolution procedure.
However, such exemptions are not truly comparable. They relate
to the ongoing status of infrastructure, rather than to an executive-style
decision about the value of a particular (or particular class
of) access contract.
43. During Public Bill Committee in the House
of Commons the purpose of this clause was not opposed, but the
government undertook to and did bring forward an additional obligation
on the Secretary of State to consult such persons he thought appropriate.
Given the level of consultation involved and given that the power
is intended to deliver a tenet of the enabling Crossrail legislation
the Department believes that no additional Parliamentary procedure
is required.
44. The quantum and pattern of Crossrail services
necessary to support the social and financial case for Crossrail
has been defined in some detail. This information has been used
to produce illustrative train timetables, which take account of
other services on existing networks, and which have been tested
by means of computer modelling, with further refinement continuing.
The House of Commons Select Committee heard extensive evidence
about the feasibility and impact of this proposed level of Crossrail
services, and it is likely that petitioners will seek to raise
the matter in the House of Lords Select Committee.
Clause 33(6) - Power to make provision about the
consideration of access contracts; form
and procedure - Regulations subject to negative resolution
45. Clause 33(2) gives the ORR the power to give
directions requiring access contracts concerning (in effect) the
overground element of the Crossrail route to be varied if this
is necessary to facilitate principal Crossrail passenger services
as required by the Secretary of State.
46. As is the case with equivalent functions
of the ORR under clauses 27 and 28, the Secretary of State may,
by virtue of clause 33(6), make provision in relation to the carrying
out by the ORR of its functions.
47. For reasons previously advanced (because
these regulations will contain procedure broadly corresponding
to a precedent), the Department believes that such regulations
are appropriate to be made by secondary legislation subject to
the negative resolution procedure.
Clause 36(1) and 36(3) - Power to amend or revoke
franchising and access exemptions; form
and procedure - Order subject to negative resolution
48. Clause 36 allows the Secretary of State,
by means of an order by statutory instrument subject to negative
resolution, to restrict or amend certain exemptions from regulation
relating to London Regional Transport (Transport for London) infrastructure
and the Heathrow Spur (a relatively short rail link running from
Heathrow to the Great Western Main Line). This power only arises
for the purposes of, or for purposes including, facilitating Crossrail
services.
49. The question of regulation of Crossrail infrastructure
has been the subject of discussion with Transport for London (as
co-sponsor of the project) and with BAA (owner of the Spur who
petitioned against the Bill on the grounds that they were specifically
affected by it) in the context of progressing the hybrid Bill.
Whether or not such powers can be used may be the subject of further
negotiation in the context of consideration of the Bill by the
House of Lords Select Committee to which it is committed. In any
event, the powers under clause 36(1) and (3) could only be executed
for limited purposes and following consultation. The negative
resolution procedure that is provided corresponds to that which
would be required under a conventional decision to exempt a rail
facility from an aspect of regulation.
50. The power under clause 36(3) is an adjunct
to the power under clause 36(1). Again, this issue remains contentious
pending negotiations in advance of the House of Lords Select Committee
where, if no resolution can be reached, BAA would have the opportunity
to request that Committee to make a ruling on this topic. The
Department would expect not to have to use this power because,
at a level of principle, BAA is supportive of Crossrail services
running to Heathrow.
Clause 39(1) - Power designate persons as protected
railway companies; form
and procedure - Order subject to negative resolution
51. Clause 39 allows the Secretary of State by
order to provide that a company be treated as a protected railway
company, which engages the Railway Administration Order regime
as contained in sections 59 to 65 of the Railways Act 1993. Such
a company must be the manager of or have rights relating to a
railway facility that is contained in or associated with the Crossrail
tunnel.
52. In respect of a body designated as a "protected
railway company", the Secretary of State may apply to a court
for a Railway Administration Order in the event of the insolvency
or winding up of the body. The purposes of Railway Administration
Orders are to secure the transfer to another company of an undertaking
so that relevant railway operations may be continued, and to secure
the continuation of such railway operations pending a transfer.
53. It is important to note that the power of
designation can only happen with the consent of the company concerned.
Because the identity or nature of the Crossrail operator is necessarily
undetermined at this time, the power under clause 39 must be exercised
by secondary legislation. As the making of the order will be by
consent in the context of determining the ultimate train operator
and as it engages an existing statutory regime, the Department
considers that the negative resolution procedure is the appropriate
level of Parliamentary scrutiny.
Clause 43(1), 43(2), 43(3) - Power to transfer
statutory powers and duties from a railway operator; form
and procedure - by order
54. Clause 43(1) provides for the Secretary of
State, if he requires any land from a railway operator for the
purposes of Crossrail and on that land there are works authorised
by statute, to transfer to him or the nominated undertaker any
statutory power or duty relating to those works that was previously
exercisable by the railway operator. This clause simply allows
any statutory power or duties to be transferred with the land
acquired. Clause 43(2) makes provision for the onward transfer
of powers or duties. In a corresponding way, clause 43(3) is relevant
if a railway operator acquires any land from the Secretary of
State on which there are Crossrail works. In such circumstances,
the Secretary of State may - with the consent of the railway operator
concerned - by order transfer any duty under the Bill relating
to those works. One example of the use of this power is in relation
to the portals of the principal Crossrail tunnel. At these locations
the nominated undertaker will necessarily undertake works on railway
land and after completion land will be returned to the railway
operator.
55. The powers are intended to marry land ownership
with statutory duties and powers appropriately. Because the question
of land ownership during and after Crossrail construction is not
settled, these powers are necessarily delegated to allow for flexibility.
Since the transfer of any duty to a third party requires consent,
and since the nature of the power is as outlined above, the Department
considers that it should be exercised as an executive order not
subject to Parliamentary procedure. This was the position for
which the Channel Tunnel Rail Link Act 1996 provided.
Clause 48(1), (6) - Power to specify nominated
undertaker; form and
procedure - Order under 48(1) not subject to Parliamentary procedure;
Order under 48(6) subject to negative resolution.
56. Clause 48(1) provides for the Secretary of
State to nominate, by means of an order, one or more nominated
undertakers for the purposes of the Bill. Such orders will reflect
discussions (and probably agreements) between the Secretary of
State and the Mayor - the co-sponsors of the Crossrail project
- about project delivery. Heads of Terms between the Secretary
of State for Transport and Transport for London (TfL) were published
on 26 November 2007. These indicate that the nominated undertaker
is for most purposes intended to be Cross London Rail Links Ltd,
a company that from Royal Assent will be wholly owned by TfL.
The Government made clear during Public Bill Committee that it
is committed to transparency about the way the project is to be
implemented. It intends to publish further information about delivery
of the project, for example as detailed agreements are signed
pursuant to the Heads of Terms (subject to protecting commercial
confidentiality). It is expected therefore that Parliament will
be given a good understanding about how the nomination provisions
will be exercised.
57. In the absence of a named nominated undertaker
for any provision of the Bill, the Secretary of State is deemed
to be the nominated undertaker for the purposes of that provision.
Where this is the case, clause 48(6) provides a power exercisable
by means of an order to modify the Crossrail Act where this appears
necessary or expedient. This would enable the Secretary of State
to modify the provisions in situations such as where the functions
of nominated undertaker are vested in him but he also has the
function of determining disputes between the nominated undertaker
and other parties.
58. Exceptionally, the Department believe that
the negative resolution procedure is appropriate for such a provision
because the context in which the ability to use this power could
arise is very significantly curtailed. Our proposed level of Parliamentary
scrutiny is what was provided for in relation to similar provisions
in the Channel Tunnel Rail Link Act 1996 and the Channel Tunnel
Act 1987.
Clause 60(1) - Power to devolve functions to the
Mayor; form and procedure
- Order to be laid before Parliament after making
59. Clause 60(1) allows the Secretary of State,
by means of an order, to devolve certain provisions of the Bill
to the Greater London Authority, Transport for London or to the
Greater London Authority and Transport for London. This power
is necessary to allow the flexibility for the Crossrail project
to be taken forward by these bodies, should the Secretary of State
consider this to be appropriate.
60. As is acknowledged by clause 60(2), the Secretary
of State and the Mayor may (and probably will) enter into an agreement
as to how the project will be devolved. The Department sees this
as a policy decision - linked to funding and political decisions
about accountability. The decision should be made transparently
but by executive bodies. In this vein, as mentioned above, a copy
of the Heads of Terms between the Secretary of State and TfL was
made available during the course of the House of Commons Public
Bill Committee proceedings.
Clause 63(5) - Power to make rules as to arbitration;
form and procedure -
Rules not subject to Parliamentary procedure
61. Clause 63 sets out how disputes under the
Bill will be dealt with unless otherwise provided for. Disputes
will be settled by a single arbitrator agreed by both parties.
If no agreement can be reached on the identity of that single
arbitrator, either party may, having informed the other, ask the
President of the Institution of Civil Engineers to appoint an
arbitrator.
62. Clause 63(1) is well precedented in Private
Acts for railways, and can also be found as model clause 45 in
the model clauses in Schedule 1 to the Transport and Works (Model
Clauses for Railways and Tramways) Order 2006. Clause 63(5) allows
the Secretary of State for Transport, and the Secretary of State
for Communities and Local Government, acting jointly, to issue
procedural rules made under statutory instrument governing arbitration.
This provision is simply aimed at giving the Secretaries of State
the flexibility of issuing procedural rules should they deem it
necessary.
63. These provisions, and the associated scrutiny,
mirrors section 43 of the Channel Tunnel Rail Link Act 1996.
Schedule 6, paragraph 13 - Power to enable the
acquisition of rights and easements by third parties; form
and procedure - Orders not subject to Parliamentary procedure
64. Section 6(1) of the Bill allows the Secretary
of State to acquire compulsorily land shown within the relevant
Bill limits which is required for Crossrail. Paragraph 13 of Schedule
6 allows the Secretary of State, by order, to provide that new
rights may be acquired by such persons are specified in the order.
However, those rights are only the rights to create and acquire
such easements or other rights over land as may be required for
or in connection with Crossrail works.
65. Some of the land which has been identified
as land to be acquired or used in respect of the project is intended
to be used for the purposes of diverting statutory undertakers'
apparatus. For apparatus placed underground, it would be common
for this to be done by the acquisition of easements by the utility
concerned, rather than by acquiring the outright. In other
cases rights of way will be required for the purpose of maintaining
works to be constructed on the existing rail network. It is Network
Rail, the owner for the network, which needs the benefit of these
rights rather than the Secretary of State. The purpose of this
provision is to ensure that any such rights acquired can operate
properly as legal easements by ensuring that the appropriate body
acquires them. It is not a power to extend or alter the nature
of the rights to be acquired but essentially an administrative
provision to ensure the proper working of the land acquisition
powers of the Bill. Given the limited nature and purpose of this
power no Parliamentary scrutiny is necessary. A similar
provision was included in the Channel Tunnel Rail Link Act 1996
(but which given the different circumstances of that project
related only to the relocation of apparatus and did not address
obtaining access to works on the rail network).
Schedule 7, paragraph 1 - Power to specify qualifying
authority: form and
procedure - Order subject to negative resolution (as regards the
power under 1(3) and 1(4))
66. Schedule 7, paragraph 1 requires the Secretary
of State, by means of on order made by statutory instrument (not
subject to Parliamentary procedure) to specify - in effect, name
- "qualifying authorities" for the purposes of Schedule
7. Schedule 7 provides two sets of planning conditions as alternatives.
The shorter of the two sets of conditions applies to developments
within the areas of non-qualifying authorities. A longer set applies
to development within the areas of qualifying authorities and
thus these authorities have extended powers.
67. It is intended that the qualifying authorities
will be local planning authorities which, by the time the Select
Committee in the House of Lords reports, have given the Secretary
of State various undertakings about handling of planning applications
(intended to be included in a "Planning Memorandum"
- or statement of agreed decisions about what will be acceptable
for Crossrail in planning terms - which is being developed with
local authorities). A similar arrangement was adopted for the
planning aspects of the Channel Tunnel Rail Link Act 1996. Reference
to paragraph 5c of this memorandum above may further assist in
understanding the planning arrangements.
68. This is delegated legislation only in the
sense of an obligation to list those with whom the Select Committee
processes have yielded satisfactory results and where the authorities
in question have decided to become qualifying authorities. As
it is merely a function of putting matters formally on the record
after Parliamentary scrutiny, no further scrutiny is required.
The powers in this regard are identical to those contained in
paragraph 1 of Schedule 6 to the Channel Tunnel Rail Link Act
1996 .
69. The powers under 1(3) and 1(4) are also identical
to those in paragraphs 1(3) and 1(4) of Schedule 6 to the Channel
Tunnel Rail Link Act 1996. Subparagraph (3) enables the Secretary
of State by order made by statutory instrument to provide that
an authority shall cease to be a qualifying authority. Subparagraph
(4) effectively provides for the reverse - that is to say, it
enables the Secretary of State by order made by statutory instrument
to provide that a non-qualifying authority shall become a qualifying
authority where there has been a significant change in circumstances.
70. These powers might be used if, following
the completion of major works, an authority asked to change its
status because it felt that the increased controls that had been
conferred on it as a qualifying authority were not cost effective
for the remaining minor works. The powers might also be used if
a qualifying authority persistently failed to comply with the
undertakings that it had given in relation to the handling of
applications. Alternatively, an authority that had not been a
relevant planning authority at the time that the Bill was reported
from the Select Committee in the House of Lords, but became on
subsequently, might be designated a qualifying authority at a
later date where there has been a significant change of circumstances.
This power was used in relation to the Channel Tunnel Rail Link
to deal with changes to the structure of local government in Kent
after the 1996 Act was enacted.
71. Paragraph 2 of Schedule 7 allows such orders
to make transitional provisions if a request for approval under
Schedule 7 is still under consideration at the time when a local
authority's status is changed. To allow the Secretary of State
to give some reassurance to any body that may be appointed as
nominated undertaker, the Secretary of State has also been given
the power to fetter his discretion. This would enable him to include
requirements to take into account potential disruption to the
construction programme, for example. This is equivalent provision
to paragraph 2 of Schedule 6 to the Channel Tunnel Rail Link Act
1996
72. Paragraph 1(5) requires the Secretary of
State to consult the nominated undertaker and the authority concerned
before making an order under subparagraph (3) or (4). As this
would involve a change in designation after the Parliamentary
scrutiny by the Select Committee had been completed, orders made
under subparagraph (3) or (4) would be subject to the negative
resolution procedure, to provide an appropriate degree of Parliamentary
scrutiny.
Schedule 7: Paragraph 28(1) - Power to require
a planning authority to refer any request for approval under Part
2 or 3 to Ministers; form
and procedure - directions not subject to Parliamentary procedure
73. Paragraph 28 of Schedule 7 enables the Secretaries
of State for Transport and the Secretary of State for Communities
and Local Government ('the appropriate Ministers' as defined in
paragraph 37(2)) to give directions to a planning authority requiring
it to refer to them any request for approval under Part 2 or 3
of the Schedule. Such Directions may relate to a specific request
or to requests of a specific description and may cancel or vary
specific requests.
74. This paragraph is identical to paragraph
30 of Schedule 6 to the Channel Tunnel Rail Link Act 1996 which
was scrutinised by the Delegated Powers of Scrutiny Committee.
This in turn followed the precedent set by paragraph 19 of Schedule
3 to the Channel Tunnel Act 1987. It was thought that there might
be particular cases where it would be more appropriate for the
request for approval under Schedule 7 to be determined at Ministerial
level rather than by the relevant planning authority. This paragraph
gives the appropriate Ministers the flexibility to give directions
in such cases.
75. This power is analogous to the one in section
77 of the Town and Country Planning Act 1990 with respect to applications
for planning permission, often referred to as 'call in'. No Parliamentary
scrutiny is considered necessary. Under the Bill, the Secretaries
of State for Transport and the Secretary of State for Communities
and Local Government acting jointly would, in any event, have
the power to determine any appeals relating to a request for approval
under Part 2 or 3 of the Schedule. Therefore, Parliament has already
accepted that they are the appropriate authority to decide such
matters.
Schedule 7: Paragraph 29(1) - Power to restrict
a planning authority's powers in relation to a request for approval
under Part 2 or 3; form
and procedure - directions not subject to Parliamentary procedure
Paragraph 29 of Schedule 7 enables the Secretaries
of State for Transport and the Secretary of State for Communities
and Local Government ('the appropriate Ministers' as defined in
paragraph 37(2)) to give directions to a planning authority which
restrict its powers in relation to the granting of approval of
requests made under Part 2 or 3 of the Schedule. Such Directions
may relate to a specific approval or to approvals of a specific
description, may relate to a specific period or be without a time
limit and may cancel or vary specific requests.
This paragraph is virtually identical to paragraph
31 of Schedule 6 to the Channel Tunnel Rail Link Act 1996. This
in turn followed the precedent set by paragraph 20 of Schedule
3 to the Channel Tunnel Act 1987.
This provision is similar to that found in article
14 of the Town and Country Planning (General Development Procedure)
Order 1995 (SI 1995/419), made under section 74(1)(a) of the Town
and Country Planning Act 1990. Its use in practice is generally
coupled with the possible exercise of powers of call-in similar
to those provided in paragraph 28 of Schedule 7 to the Bill -
for example, the directions may require an application in a given
set of circumstances not to be granted until relevant information
has been supplied to the Secretary of State to enable him to decide
whether to call the application in.
No Parliamentary scrutiny is considered necessary.
Under the Bill, the Secretaries of State for Transport and the
Secretary of State for Communities and Local Government acting
jointly would, in any event, have the power to determine any appeals
relating to a request for approval under Part 2 or 3 of the Schedule.
Therefore, Parliament has already accepted that they are the appropriate
authority on such matters.
Schedule 7: Paragraph 30(1) - Power to make provision
for the forms of notice of appeal against a decision of a planning
authority;
Paragraph 30(5) - Power to make provision for
the extension of the period for payments by cheque;
Paragraph 34 - Power to make provision about appeals
under paragraph 30;
form and procedure for all such powers - Regulations
subject to negative resolution
76. Paragraphs 30 to 35 of Schedule 7 set out
a mechanism for the nominated undertaker (being the person appointed
to construct or maintain one or more aspects of Crossrail) to
appeal decisions by local planning authorities under the Schedule
(i.e. decisions in respect of such planning issues for which the
local planning authority has retained responsibilities). Appeals
are made to the Secretaries of State for Transport and Communities
and Local Government acting jointly. These paragraphs follow very
closely corresponding provision in the Channel Tunnel Rail Link
Act 1996.
77. Paragraph 30(1) - which should be read in
conjunction with paragraph 30(9) - provides a power for "the
appropriate Ministers" (being the above-mentioned Secretaries
of State) to prescribe the form which such notices of appeal must
take.
78. Similarly, paragraph 30(5) provides a limited
power to extend the period for consideration of a request for
planning approval where payment has been provided by cheque. Such
amendment of the primary legislation by statutory instrument would
only be to extend the time period in this limited circumstance
by a number of days.
79. Finally, in this area, paragraph 34(2) provides
that the appropriate ministers may by regulations make such provision
as they think fit about procedure in relation to appeals under
paragraph 30. This power is equivalent to the power to make procedural
regulations for written representation procedures in section 323
of the Town and Country Planning Act 1990, and to make rules for
public inquiries and hearings in section 9 of the Tribunals and
Inquiries Act 1992 (such regulations/rules have been made). They
are subject to the negative resolution procedure.
80. The provisions in paragraphs 30(1), 30(9),
30(5) and 34 (2) are equivalent to those in paragraphs 32(1),
32(7), 32 (5) and 36(2) of Schedule 6 to the Channel Tunnel Rail
Link Act 1996 respectively. As these powers relate purely to procedural
matters, paragraph 35(2) provides for them to be exercised by
the making of regulations in a statutory instrument subject to
the negative resolution procedure (as was the case for the equivalent
powers in the 1996 Act).
Schedule 7, paragraph 36 - Power to amend Schedule
7 to accommodate the Olympic Delivery Authority as a planning
authority; form and
procedure - Order subject to negative resolution.
81. Schedule 7 allows the Secretary of State,
by means of an order, to name "qualifying authorities"
for the purposes of Schedule 7. These qualifying authorities will
be local planning authorities. Parts 2 and 3 of Schedule 7 confer
on local planning authorities different levels of control on Crossrail
development depending on whether or not they have been designated
a qualifying authority.
82. Section 149 of the Local Government, Planning
and Land Act 1980 ("the 1980 Act") provides a mechanism
for an urban development corporation ("UDC") to be the
local planning authority for the whole of any portion of its area
in place of any authority which would otherwise be the local planning
authority. The mechanism under the 1980 Act in respect of UDCs
is not directly relevant to Crossrail - as no such bodies now
exist or are likely to come into existence.
83. However, the London Olympic and Paralympic
Games Act 2006 makes use of this statutory mechanism (i.e. section
149 of the 1980 Act) for altering the identity of the local planning
authority. Specifically, section 5 of the 2006 Act provides for
section 149 to apply in relation to the Olympic Delivery Authority
("ODA") as it applies in relation to an UDC. The area
for which the ODA would become the local planning authority would
be determined by order under section 149(1) (see section 5(2)(b)
of the 2006 Act). Such an Order - covering the Olympic Park area
- has been made (S.I. 2006/2185).
84. Crossrail works are expected to take place
within the area specified in this Order. This raises the prospect
that the power in paragraph 36 of Schedule 7 will be required
in order to accommodate the ODA as a local planning authority
for the purposes of the reserved matters set out in Schedule 7.
Discussions are, however, continuing with the ODA and the relevant
local planning authority (the London Borough of Newham) as to
whether the ODA will wish to exercise control on any of these
reserved matters, and if so whether they intend to negotiate an
undertaking with the Secretary of State with respect to the handling
of planning matters arising under Schedule 7 (please refer to
paragraph 1(1)(a) of Schedule 7).
85. As the exercise of the power in paragraph
36 has consequences both for the ODA and the local planning authority
concerned the level of Parliamentary scrutiny proposed is the
same as for the exercise of the powers in sections 1(3) and 1(4)
of Schedule 7.
Schedule 13, paragraph 45 - Power to make further
provision in relation to transfer schemes; form
and procedure - Regulations subject to negative resolution by
the House of Commons
86. Schedule 12 to the Bill enables the Secretary
of State to make a scheme to transfer property, rights or liabilities
from Cross London Rail Links Ltd (the publicly owned company assisting
in the promotion of the project) or the Secretary of State, or,
with their consent, the Greater London Authority, Transport for
London, the London Development Agency or any of their subsidiaries.
This means that assets and obligations can be transferred as a
matter of law under statute rather than by a lengthy and complicated
series of contracts requiring the input of various third parties.
The power to make a transfer scheme will assist in ensuring that
assets and liabilities are held by the right parties, so helping
the process of project delivery.
87. Where assets and liabilities are transferred
between public bodies to produce the optimal project structure,
it would be an unnecessary administrative burden and of no net
value for the tax regime to create charges - and to produce notional
gains and losses - within the public sector. Such changes in tax
treatment could inhibit the adoption of the most advantageous
project structure.
88. Schedule 13 therefore contains detailed and
technical provision intended to avoid the unnecessary flow of
tax liabilities and benefits. However, the major construction
works for Crossrail will not start until 2010, the period during
which transfer schemes under Schedule 12 are most likely to be
made is 2010 to 2017. This means that there is scope for general
tax rules to change over time, which could impact on the effectiveness
of these provisions. The government has therefore recognised a
need for there to be provision for "future-proofing"
the function of this Schedule.
89. Paragraph 45 of Schedule 13 therefore allows
the Treasury, by regulations, to make provision for varying the
way in which certain, defined or "relevant" taxes will
have effect from time to time in relation to Crossrail transfer
schemes. Such regulations would be made by statutory instrument
subject to annulment in pursuance of a resolution of the House
of Commons.
90. As a power to modify the application of primary
legislation, this form of scrutiny is an exception to the general
rule. However, because it is a reserve power for an understood
and uncontroversial purpose in respect of identified taxes, the
Department suggests that this is the appropriate level of scrutiny.
Schedule 15, paragraph 7(2) - Power to give directions
with respect to the carrying out of any function under the Schedule;
form and procedure -
directions not made by statutory instrument and not subject to
Parliamentary procedure
91. Schedule 15 details the bespoke arrangements
that have to be made for the removal and reinterment or cremation
of any human remains or for the removal, keeping, disposal and
recording of any monuments found in any land comprised in a burial
ground used for the purpose of constructing the Crossrail works.
92. Paragraph 7(2) of the Schedule allows the
Secretary of State to give such directions as he thinks fit with
respect to the carrying out of any function under this Schedule.
93. The provisions of this Schedule are identical
to the equivalent Schedule (Schedule 11) in the Channel Tunnel
Rail Link Act 1996. No directions were issued under that Schedule.
94. The arrangements set out in this Schedule
are already quite detailed. However circumstances may arise in
which further detail is needed - for example to specify in which
local newspapers the nominated undertaker shall publish notices
regarding remains or monuments (paragraph 1), or where a licensee
may reinter remains (paragraph 4). It was therefore thought appropriate
that the Secretary of State should have the flexibility of being
able to give such directions.
95. As such directions can only be made in relations
to matters of administrative detail it was not considered appropriate
to make provision for any Parliamentary procedure.
Schedule 16, paragraph 2 - power to specify conditions
of the deemed planning permission in relation to reinstatement
of discontinued facilities: directions
not made by statutory instrument, not subject to Parliamentary
procedure
96. Schedule 16 makes provision concerning the
reinstatement (within Bill limits) of facilities which have been
discontinued as a consequence of Crossrail construction, and the
conditioning by the Secretary of State of the deemed planning
permission for such reinstatement provided by the Bill[8]
. Because these reinstatements are indirect consequences, rather
than direct elements, of construction, specific powers to re-site
such facilities are needed. It is envisaged that these powers
will be used in a limited number of cases - for example a concrete
batching plant at Royal Oak, and a travellers' site in Tower Hamlets.
97. The facilities likely to be reinstated are
unlikely to be railway development. They are therefore likely
to require a different set of conditions than provided for under
the normal regime for reserved matters in relation to Crossrail
works set out in Parts 2 and 3 of Schedule 7 of the Bill. Paragraph
2 of Schedule 16 provides the requisite powers to attach conditions.
It should be noted that the Secretary of State's power to disapply
or modify Parts 2 or 3 of Schedule 7 can only be exercised in
consequence of directions given to impose new conditions.
98. These conditions will be entirely site specific
details. It would be most unusual to provide for Parliament to
have scrutiny of planning conditions.
Department for Transport
January 2008
8 Paragraph 5c of this memorandum summarises the planning
arrangements provided by this Bill. Back
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