Crossrail Bill

HOUSE OF LORDS

Select Committee on the Crossrail Bill

1st Special Report of Session 2007–08

Crossrail Bill

Volume IV: Evidence

Ordered to be printed 19 May 2008 and published 19 August 2008

Published by the Authority of the House of Lords

London : The Stationery Office Limited £price

HL Paper 112–IV CONTENTS IN VOLUME II

Page

List of Proceedings 19 February 2008 Chairman's Opening Address 1 Promoter's Opening Address 3 General presentation by the Promoters on noise and vibration 16

20 February 2008 General presentation by the Promoters on compensation 33 General presentation by the Promoters on ground settlement 46

26 February 2008 Promoters presentation on people with reduced mobility 59 The Petition of the London Borough of Newham 84

27 February 2008 The Petition of the London Borough of Newham 106

28 February 2008 The Petition of the Cyclists' Touring Club 146

3 March 2008 The Petition of Iver Parish Council, the Ramblers Association and the Open Spaces Society 169

4 March 2008 The Petition of the London Borough of Tower Hamlets 195 The Petition of Mr James Middleton 211

5 March 2008 The Petition of Mr David Saunderson 222

10 March 2008 Promoter’s opening remarks on Spitalfields 249 The Petition of Spitalfields Community Association 259

11 March 2008 The Petition of Selina Mifsud and others 273 The Petition of Nicholas Morse and others 294 The Petition of Selina Mifsud and others 296 The Petition of Spitalfields Community Association 312

12 March 2008 The Petition of Spitalfields Community Association 321 The Petition of Spitalfields Small Business Association Ltd 328 Spitalfields – Settlement Issues 346 Spitalfields – Noise Issues 361

CONTENTS IN VOLUME III

Page 13 March 2008 The Petition of the Spitalfields Society 372 General Issues relating to the Spitalfields area 397 Promoter’s closing statement on the settlement issues in the Spitalfields area 420

17 March 2008 The Petition of Kempton Court Residents 427

18 March 2008 Chairman’s Ruling on compliance with the Environmental Impact Directive 85/337/EEC, as amended 451 The Petition of Ms Patricia Jones 454

19 March 2008 The Petition of Canary Wharf Group Plc 488 The Petition of Trustees Of The SS Robin Trust 508 The Petition of the Association of West India Dock Commercial Ship Owners 510

20 March 2008 The Petition of Souzel Properties Ltd 520 The Petition of the City of London Corporation 530

26 March 2008 The Petition of Michael Pritchett 532

1 April 2008 The Petition of London Borough of Bexley 555 The Petition of Mr Roy Carrier 597

2 April 2008 The Petition of Mr Roy Carrier 606

3 April 2008 Statement on the Office of Rail Regulation 618 The Petition of the London Borough of Camden 619 The Petition of David Monro and Adam Scott – The House of St Barnabas- in-Soho

22 April 2008 Promoter's opening address on Crossrail services and operations, the Access Option, general railway industry issues and Bill powers 641 The Petition of Jean Lambert MEP and others 666 The Petition of Association of Train Operating Companies (ATOC) 682

23 April 2008 The Petitions of London Borough of Havering, Royal Borough of Kensington & Chelsea, and Brentwood Borough Council 690

29 April 2008 The Petitions of the Freight Transport Association Ltd; The Rail Freight Group; Freightliner Group Ltd; Mendip Rail Ltd; Quarry Products Association Ltd; Hutchison Ports (UK) Ltd; The Felixstowe Dock & Railway Company; Harwich International Port Ltd; and Maritime Transport Services Ltd 700

CONTENTS IN VOLUME IV

Page 30 April 2008 The Petition of Network Rail Infrastructure Ltd 751 Heathrow Western Link 784 The Petition of English Welsh & Scottish Railway Ltd 790

1 May 2008 The Petitions of the Freight Transport Association Ltd; The Rail Freight Group; Freightliner Group Ltd; Mendip Rail Ltd; Quarry Products Association Ltd; Hutchison Ports (UK) Ltd; The Felixstowe Dock & Railway Company; Harwich International Port Ltd; and Maritime Transport Services Ltd 805 The Petition of the Rail Freight Group 833 The Petition of the Trustees of the SS Robin Trust 835 Promoter’s Closing on railway issues 838

2 May 2008 The Petition of Smithfield Market Tenants’ Association 862

6 May 2008 The Petition of Westminster City Council 911 The Petition of Paddington Residents Active Concern on Transport (PRACT) 919 The Petition of Woodseer and Hanbury Residents Association 949

7 May 2008 The Petition of Westbourne Park Villas Residents Association 973 The Petition of Hammerson (Paddington) Limited and Domaine Developments Limited 990 The Petition of Westbourne Park Villas Residents Association 992 The Petition of Mr John Payne 1011

8 May 2008 The Petitions of the Crossrail Coalition of Residents and Petitioners; and the Residents Society of Mayfair & St James's Mayfair Action Group 1031 The Petition of Mr Leo Walters 1074 The Petition of Woodseer and Hanbury Residents Association 1076 Promoter’s Closing statement 1082

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DAY TWENTY-FOUR WEDNESDAY 30 APRIL 2008

Before: Colville of Culross, V (Chairman) Jones of Cheltenham, L Brooke of Alverthorpe, L Snape, L Fookes, B Young of Norwood Green, L James of Blackheath, L

Ordered that Counsel and Parties be called in.

The following Petition against the Bill was read:

The Petition of Network Rail Infrastructure Limited.

MrRobinPurchasQC andMsSairaKabirSheikh appeared on behalf of the Petitioner.

MessrsBirchamDysonBell appeared as Agent.

9195. CHAIRMAN: Mr Purchas? infrastructure manager for the purposes of the ROGs; that is not in dispute. The diYculty is that this 9196. MR PURCHAS: My Lord, I appear for is an issue which arises under current legislation. Network Rail with my learned friend, Ms Saira What Network Rail are seeking to do is to seek Kabir Sheikh, who is on my right. undertakings from the Secretary of State which would fetter his discretion under existing legislation, 9197. CHAIRMAN: I wonder whether Mr Elvin and to give an undertaking would be unlawful wants to say anything about this. because there is a negotiation both on regulatory and commercial terms where, frankly, the Secretary of 9198. MR ELVIN: Brieﬂy, my Lord. State sees the logic in Network Rail having a considerable involvement in the regulation of the 9199. CHAIRMAN: This is the ordinary method, central tunnel, as I said to you yesterday, and TfL are Mr Purchas. arguing, or were arguing, for almost complete exemption such as is the case with London 9200. MR ELVIN: My Lord, I foreshadowed it Underground and the Docklands Light Railway. yesterday and we have just received materials from That is not acceptable to the Department for it to be Network Rail which I have not been able to look at completely exempt, but the precise nature of the overnight. regulatory system which is to operate in the central tunnel is a diYcult matter and, as I said yesterday, it 9201. CHAIRMAN: So have we. involves negotiations outside the powers of this Bill.

9202. MR ELVIN: It says what I more or less expected it to say. The position is this, as I explained 9205. Therefore, in our respectful submission, whilst yesterday: that there is currently an issue as to how we note Network Rail’s concerns and we do see the central section of Crossrail, that is to say, the Network Rail as having a major role to play, not least tunnel section, is to be regulated. because of course we have to access the central section from Network Rail’s national network and 9203. CHAIRMAN: This is the infrastructure infrastructure, this is unfortunately a matter which manager point? has to continue under existing legislation outside the bill process and, therefore, in my respectful 9204. MR ELVIN: Yes, this is the infrastructure submission, although we are sympathetic to what manager point. Just taking a step back, this involves Network Rail have to say, it is a matter for further at least a three-way negotiation between the negotiation and not a matter where Network Rail Promoter, Network Rail, represented by my learned can properly ask your Lordships to do anything friends, and Transport for London. It is a negotiation about it. as to what precise regulatory mechanism should apply in terms of the infrastructure manager for access and general purposes under the central 9206. CHAIRMAN: It is the European Directive section. It is agreed that Network Rail should be point, is it? Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9207. MR ELVIN: In part, it is the transposition of nothing about any negotiations at all. It is about the European Directives into national law. something pretty simple; it is about the operation and maintenance of the railway. The 1993 Act, as your 9208. CHAIRMAN: Yes, it is the statutory Lordships will know, was careful to distinguish instrument which transposes it. matters of commercial interest, no doubt real interests to TfL, from safety and performance of the 9209. MR ELVIN: And indeed under the Railways rail network, and that is all we are interested in. Act. Whatever TfL may want to negotiate with us or anyone else is nothing to do with our Petition. It is 9210. LORD JAMES OF BLACKHEATH: You quite interesting we heard my learned friend because have an extraordinary situation. It sounds like one of it is exactly what we suspect has been going on, that these problems that is so stupid it should not possibly the financial interests of TfL have obfuscated what be allowed to exist for five minutes, but how long is we see as the very important public interest of that situation going to be allowed to continue and ensuring safe and eVective operation and still be able to proceed to the next stages of Crossrail maintenance of the system. because you cannot possibly go on without agreement? 9221. Having said that, my Lord, can I explain what we want from the Committee which is very simple, 9211. MR ELVIN: My Lord, I understand that straightforward and sharp-edged. My Lord, that, I agreement should not be too far oV. Perhaps I can hope, is going to be number one of the overheads and take precise instructions as to where the negotiations we have provided, 24 hours before we have appeared have reached. (After a pause). I am told, my Lord, in your Committee’s House, a bundle also for your that the regulatory side has to be integrated in the Lordships. Do your Lordships have that? financing arrangements and it is likely to take a number of months, but certainly within the scope of this year. It is not going to run on beyond that. It is 9222. CHAIRMAN: Yes, but only this morning. certainly before work commences.

9212. LORD JAMES OF BLACKHEATH:I 9223. MR PURCHAS: Well, I do apologise. We did cannot see how you can start without it. deliver it yesterday1 and I apologise for that. My Lord, there is not a lot of great complexity in there, but, if your Lordship goes to tab 1, these are the three 9213. MR ELVIN: Well, your Lordship is right, undertakings. My Lord, the second undertaking which is why it has got to be concluded within the year. has been given, or oVered, that we should take on the role of infrastructure manager as soon as reasonably practicable, but, importantly, limited only to the 9214. CHAIRMAN: It does not sound as though we safety regulations. My Lord, I will come back to that are going to have time to deal with it. in due course. In other words, it is not dealing with all operation and maintenance which is a matter of 9215. MR ELVIN: Well, my Lord, as I have considerable public importance. suggested and as I say, although we are sympathetic to Mr Purchas’s clients’ concerns, and indeed we are singing from the same hymn sheet up to a large point, 9224. My Lord, the other two assurances remain I do not think it really is a matter for your Lordships. outstanding. The ﬁrst is an undertaking by the Promoter that we will, on completion of the Crossrail 9216. CHAIRMAN: Up to the last verse. works, have responsibility for, and control over, the operation and maintenance of the Crossrail systems 9217. LORD JAMES OF BLACKHEATH: It is from end to end, including those in the central tunnel only a matter for us in the sense of where the whole section. That is the basic issue we are concerned with. thing’s momentum stands. Also, very recently we had, as it were, a whiV in the air that the Promoter is intending, or may be 9218. MR ELVIN: Well, it is, my Lord, but it is a intending, to exempt the whole of the central section matter lying within the scope of other legislation. from the operation of the 1993 Act. That raises a whole range of very important issues not just for us 9219. CHAIRMAN: Now, Mr Purchas? and for others, and we have asked not once, but now three times, for a straightforward assurance that that 9220. MR PURCHAS: Well, I always revel in is not the intention. sympathy from Mr Elvin; it is always a good start to 1 a Wednesday morning! My Lords, actually this is (SCN-20080430-001) Committee Ref: A54, Undertakings sought by Network Rail Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd 2

9225. CHAIRMAN: They have powers to do that? 9233. My Lord, can I then take your Lordships to tab 2, page 2. Your Lordships may recall that in the 9226. MR PURCHAS: They do. Under section 7, early 2000s the rail industry went through some they have remarkable powers actually. They could, at pretty torrid and gloomy times, to try and use a a stroke, put the whole of the central section outwith neutral expression, leading up to the Government’s the control, in the public interest, of the OYce of the White Paper The Future of Rail in July 2004. The Rail Regulator. That, as far as I am aware, has not central part of that, it is the ﬁrst bullet point in this been indicated anywhere in the paper coming from extract we have made, was that Network Rail, which the Promoter and certainly it never crossed our minds had been created shortly before, would “be given that it would be the intention until very recently. I will clear responsibility for operating the network and for be showing you a document in due course which its performance”. Then the text below is important: came into our hands legitimately, I should “With no one organisation clearly in charge, emphasise, being, as it were, from TfL to the improvements in reliability have been sluggish, the Department, in April which raises that very railway has not delivered the performance that proposition. We think your Lordships ought to ask passengers expect. The changes outlined in this White for a straight answer to that question. Paper will give Network Rail a strengthened role as operator of the network, with overall responsibility 9227. CHAIRMAN: I am sorry, where is it again? I for its performance. Government will set out what am looking at clause 7. Network Rail is expected to deliver for the public money it receives, and on that basis Network Rail 9228. MR PURCHAS: I am so sorry, my Lord, it is will lead industry planning, set timetables and direct in the 1993 Act. I should have made that clear, my service recovery. Too often under the current system, Lord, and I did not make it clear. The 1993 Act, companies have been able to pass the buck for poor under section 7, has a power of exemption. The performance. Under the new structure, Network Rail Secretary of State has to consult the OYce of the Rail will be held accountable for ensuring that the Regulator, but then it is in his, or her, I should say, network delivers a reliable service for its customers discretion. through an agreement with the Government.”

9229. CHAIRMAN: Then he ousts the ORR? 9234. We are concerned, my Lords, that what is presently afoot is to reverse that process so far as 9230. MR PURCHAS: All this time that Mr Crossrail is concerned. My Lords, Network Rail, one Berryman has been giving tutorials to your needs to bear in mind, is not strictly a non-profit- Committee, my Lord, it goes out of the window at a making company, but it is one where all its profits are stroke, so we are modestly interested in that. The ploughed back into the enhancement of the rail 1993 Act has formed the framework for our infrastructure network, and of course it is under the discussions about operation and maintenance of this control of the OYce of the Rail Regulator and indeed railway and we place great store on the OYce of the with ultimate responsibility not only for operation, Rail Regulator in balancing all the various interests but also for safety through the ORR and Her in the overriding public interest. Majesty’s Rail Inspectorate. Now, all of that is enshrined by Parliament in the Railway Act 2005, 9231. My Lords, I say that we yesterday got an and we have included at tab 3, simply by way of answer to those three points, particularly one and shorthand, this is from our Petition, our various three, and we were given a no to both the first and duties for renewal and replacement, and for third assurances, albeit, if I may say so, in the operation, that3 we should do so in a timely, economic customary ‘Promoterese’, if I can call it that, but it and eYcient manner and so on and so forth, and I was no, as far as I could see. We found that both would just ask your Lordships kindly to glance astonishing and, in the public interest, very through that. You will see that we are subject, in the regrettable. public interest, to a wide raft of duties placed upon us for discharging the policy of the Government. My 9232. My Lord, if I can identify the issue as we see it, Lord, I think the Government and we can claim I hope I do not put it too high, but we would see the without undue complacency a measure of success, issue as whether Crossrail and the rail network with and I can do no better than to take the Promoter’s or Crossrail at its centre should run as an integrated the Government’s description, which is at tab 4, in network or on a fragmented and piecemeal basis. their update on the White Paper in July of last year: That is actually the hard-edged point of where we are 2 at present. Now, we think it is entirely unsatisfactory Department for Transport, Cm 6233, July 2004 (SCN- 20080430-002) that it should not be run otherwise than on an 3 Committee Ref: A54, The Future of Rail—White Paper, integrated basis. Rail Infrastructure Ltd (SCN-20080430-003) Committee Ref: A54, Extract from Petition No. 110—Network Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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“Britain now has a railway which carries more people there of having integrated and overall control. Your and more freight than it has in over 50 years. It is Lordships will recall over the page, albeit I think safer than ever before. Reliability, which declined described there as “passenger performance sharply after the appalling accident at Hatfield, is measure”, it is Public Performance Measure, PPM. It now good and improving on most lines, and the is public. finances of the industry are stable and improving. Network4 Rail is on course to improve eYciency by 9238. CHAIRMAN: It is public. nearly one-third in five years, and strong growth in demand means that passenger services require less 9239. MR PURCHAS: You are quite right. I think subsidy.” My Lords, with your Lordships’ leave Mr somewhere else it is described as passenger. Public Gisby will say a little bit more by reference to what is Performance Measure and the 92 per cent which your at tab 5, but I will not do that. Lordships heard about. All of that is something that we would submit to your Lordships, and we believe 9235. My Lords, could I take your Lordships to tab it should be accepted by the Promoters, is critically 21. On Tuesday of last week, my Lords, Mr dependent upon ensuring integrated management, Berryman gave your Lordships a tutorial, which your not just when things are going well but particularly Lordships will recall. It may be worth very briefly during perturbations, accidents and acts of that kind. going back to look at one or two of the points he said My Lord, Mr Gisby will explain how the position of with which we indeed agree. Crossrail at the centre of the network is such that any 5 problems at that point will have a ripple eVect across 9236. My Lords, in tab 21, if your Lordships go to the network as a whole. My Lords, I do not elaborate page 15, your Lordships will see that he dealt first of on that but your Lordships have the passage where all and foremost with the position of Network Rail. Mr George was asking some questions of Mr That is the top of that page: “First of all, who is the Berryman and you will recall at pages 28 and 29 of the infrastructure manager? They are all owned by transcript in that tab. If your Lordships have page 28, Network Rail, who have a legal position as it is an answer to question 8193: “I understand the infrastructure manager as set down in the various bits point, but I would put it to you another way: as you of railway legislation. They are regulated said earlier in your remarks a moment ago, it would economically, and in other ways, by the OYce of the be up to the discretion of the rail regulator to decide Rail Regulator. Network Rail gets a network licence, how the capacity that had been created was allocated. which is issued by the OYce of the Rail Regulator, to If, through some oversight or mischance, we failed to operate the trains, and that is intended to continue, as build all of the bits and pieces which were necessary, far as Crossrail is concerned, both during then it would be up to him to allocate the space”, and construction and after”. I have to ask your Lordships so on. The Promoters rely strongly, as I understand to note that because the sophistry is such that now it Mr Berryman’s evidence, on the role and good is being said, “Well, after all we didn’t mean that, management of the rail regulator to control these what we meant is you can be infrastructure things. We are fully content with that and I will come manufacturer manager but just for one part of the back to that. legislation but not for actually real life operation and maintenance”. Sir, that is the basis of refusing the 9240. My Lords, I leave, if I may, what Mr Berryman assurance we have looked for. said and I come briefly to the Access Option. Our support for the Access Option was premised on our 9237. My Lords, Mr Berryman went on to explain to understanding that there would be integrated your Lordships that there was then the provision of operation and maintenance of the Crossrail system as access rights to both access agreements and a whole as part of a national network as well as franchises and that was again a matter between the responsibility for safety and matters of that kind. We facility owner—we will come back to that in due understood responsibility as infrastructure manager course, it is not the infrastructure manager, that is the meant responsibility as infrastructure manager as facility owner—and those seeking access, as your commonly understood for all the regulations that Mr Lordships know here, the Access Options have been Berryman was referring your Lordships to last granted. He also drew your Lordships’ attention to Tuesday. We submit it would be the antithesis of the bottom of that page the position of Network Rail joined-up responsibility and control to separate in delivery of the operation both within the timetable safely from maintenance and maintenance from and dealing with perturbations and the importance operational control. They all lie at the kernel of the 4 delivery of a safe and eVective system. We would Paper, Department for Transport, Cm 7176 (SCN-20080430- submit to take a diVerent approach, my Lords, would 004) 5 Committee Ref: A54, Delivering a Sustainable Railway—White be to put that whole process in reverse with dire and -006; and -008) essentially unwarranted implications for the network Para 8111 [Mr Elvin; Mr Berryman] (SCN-20080430-005 to Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd as a whole. My Lords, I want to use my language 9243. CHAIRMAN: Before you do, Mr Purchas, carefully here, but we do feel that we have been presumably this issue goes to the question of PPM? misled, if not let down, by what has emerged over the last few weeks and what seems to us to be reneging on 9244. MR PURCHAS: Everything. what was an important and, we believed, a common understanding at least6 last year and through the early 9245. CHAIRMAN: What did the regulator assume part of this as far as we were concerned. I need to for the purposes of their final decision? explain that to your Lordships. Could I take your Lordships to tab 7. My Lords, Network Rail from 9246. MR PURCHAS: My Lord, we have the outset has been proactive in our support for the absolutely no doubt, I am going to show your Department in identifying ways in which this scheme Lordships, if I may, what Mr Fuhr on behalf of the can be implemented satisfactorily and before Department said to the regulator and what Mr Robin proceedings in another place we entered into this Gisby did. Mr Robin Gisby will tell you, as I document, the Statement of Principles, agreed on 4 understand it in any event, that if he had known then November 2005 and for present purposes paragraph what he knows now, he certainly would have made 22, that is the third page, my Lord. It was at least clear that what he was saying was on the basis that agreed, 22: “the parties agree that the Crossrail Network Rail would have integrated responsibility project should in its entirety be managed from a for both the operation and maintenance of the whole single point of responsibility and acknowledge that system. My Lord, I was going to come to that just in the duties and obligations of Network Rail should be a moment. fully respected”. I understand at that point we were way apart on the proper approach to operation and 9247. CHAIRMAN: Good. maintenance, but at least we got the acceptance of single responsibility and management. 9248. LORD BROOKE OF ALVERTHORPE: Just before we leave that, if I may, does 22 not mean that conceivably you could have one party running it 9241. LORD SNAPE: Mr Purchas, forgive me for but not Network Rail? interrupting you. On 22 you said, “single points of responsibility and”, but it actually says, “single 9249. MR PURCHAS: As I said to Lord Snape, it points of responsibility but”. Is the “but” not more was entirely unsatisfactory to us but we actually still significant than the “and”? want to help produce a railway that is going to work, that is why we are here, we are seeking to assist the Promoters as best we can and at that stage we 9242. MR PURCHAS: My Lord, your Lordship thought it important to have a Statement of can imagine that sentence went through all kinds of Principles as far as we could get. We like to think that convolutions and discussions. It was entirely with the assistance of the Committee in another place unsatisfactory and incomplete. When we appeared in we certainly made progress in terms of bringing the other place we had a number of points, two major forward overall regulation of the system, but we now points. One was simply we did not even have the start find we have not made progress on fragmentation. of an Access Option timetable from the Promoters Can I take your Lordships then to the next document and the second was the very point regrettably I am and it is tab 8, my Lords. My Lords, as part of the still troubling your Lordships with, which is discussions with the Promoter on the Access Option7 fragmentation. My Lords, with grateful thanks to the we understood it was accepted that we should indeed Committee, whose Chairman’s words were little be the operator and maintainer of the whole network. veiled, we got after that appearance real activity, That was put into a formal text on 18 July 2007. It which we were grateful for, which enabled the Access is signed by both Mr Fuhr on behalf of the Option to come forward and we took a second House Department and Peter Hendy for TfL. “In June 2006 undertaking. On fragmentation we thought last July it was confirmed that the Department for Transport really the matter was fully settled and understood (‘DfT’) and Transport for London (‘TfL’) together between us, I will come to that, but your Lordship is acting as project sponsors share the view that absolutely right, behind that paragraph lies a great Network Rail can act as Infrastructure Manager for deal of discussion and negotiations which simply had those parts of the Crossrail route that will run on the not resulted in a situation which could be acceptable, existing Network Rail network (‘On-Network we believe, to your Lordships or, indeed, to Works’)”, unqualified and we will come to definitions ourselves. My Lord, can I move on from there— in due course, plainly operator and maintainer.

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“Since last summer discussions have taken place done. That is what lay behind the 2004 White Paper. about the role of Infrastructure Manager for that There have been tragic examples where systems have part of Crossrail Route which is not on Network fallen down. As your Lordship will see from what Rail’s network (‘the Crossrail Central Section’). As TfL have been saying to the Department, they part of those discussions, we have considered the actually want to put safety and maintenance of this safety duties and other responsibilities which are set part of the system on to a commercial basis. So we are out in . . . (‘ROGS’) in relation to Crossrail”. Indeed back into the sort of Hatfield era, if I may say so, there were discussions about all kinds of things, rather than having it dealt with through an operator/ including safety. “The Sponsors have now concluded manager where maintenance is our direct that Network Rail will be the Infrastructure Manager responsibility, and we deal with it on an integrated for the end to end Crossrail rail systems during basis along with operation. My Lord, it is something operation and agree that all appropriate steps should of great concern. be taken to enable Network Rail to assume the role as soon as reasonably practicable, and any event by 9256. LORD JAMES OF BLACKHEATH: 1 December 2007”. Could I tell your Lordships at the Throughout the Committee stages of that Bill, I was moment that the term “infrastructure manager” is a challenging the Attorney General and the others very technical term. If we need to go into definitions we seriously as to the lack of focus as to where the can. It is used for access, management and safety. It responsibility would lie. As it was inspired by railway is understood in the railway industry and under the accidents I think it is quite ridiculous if we do not 2005 regulations for access and management, and the have a very clear definition of the responsibility in 2006 regulations for safety and it means the person any arrangements for safety that come here. who operates and maintains, not the owner, the person who is there with nuts and bolts and the 9257. MR PURCHAS: My Lord, I can give you that spanner and the rest of it. So, my Lord, as far as we answer straightaway, and it is this: as the were concerned that was plain and negotiations then infrastructure manager under the European proceeded for a number of— Directive and under the regulations, we are directly responsible for safety. 9250. LORD JAMES OF BLACKHEATH: May I ask a question, please? You will be familiar with the recently activated Corporate Manslaughter Act. 9258. LORD JAMES OF BLACKHEATH: Who How far is that now going to leave a completely goes to prison? unambiguous responsibility to answer any proceedings under the Corporate Manslaughter Bill? 9259. MR PURCHAS: My Lord, there I am going to hesitate, but it will be a liability both on the 9251. MR PURCHAS: That is a very good company and, also, under the Bill, it will be on the question, my Lord, and I would hesitate to answer individuals. that now. I am certainly not going to ask Miss Kabir- Sheikh to give the answer. 9260. LORD JAMES OF BLACKHEATH: You are not going to get anybody to do the job unless they 9252. LORD JAMES OF BLACKHEATH: It is a know whether they would be liable to go to prison in hugely important question. the first place. I think there are some good questions to ask. 9253. MR PURCHAS: It is a hugely important question, my Lord. 9261. MR PURCHAS: My Lord, there are indeed. Can I pick up your Lordship’s point in this sense: that 9254. LORD JAMES OF BLACKHEATH: It is an to make someone infrastructure manager for safety area of activity which has prompted the Act in the but not to give him the control and responsibility for first place, because of Hatfield and other events. If the maintenance is a complete non sequitur, we would issue is allowed any ambiguity there will be chaos say. from that Act. 9262. LORD JAMES OF BLACKHEATH: The 9255. MR PURCHAS: My Lord, can I say this, example I have been trying to get the Attorney which is not answering the legal point your Lordship General to comment on is what happens if a jockey put to me: safety of our railways depends upon gets killed because there is a faulty fence which was integrated operation. They depend upon how the not corrected on a racecourse, and they have got railways are handled. They depend upon seven choices they cannot decide, going from the maintenance—not simply to have standards but to senior steward at the Jockey Club down to the head ensure that maintenance is planned and that it is groundsman, at the moment. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9263. MR PURCHAS: My Lord, I can see exactly 9268. If your Lordship has the ﬁrst page, page 9 of the the same problems arising. We think a good start for extract, we have Mike Fuhr there. He is Director of safety will be to have one identiﬁable body, Network Major Projects. You will see, in the third complete Rail, as the operator and maintainer for the whole paragraph: “I am particularly glad today to be joined network. That is really the point we make. by TfL, who are co-sponsors of Crossrail, both now and in the pre-construction phase and throughout the whole of the construction phase will continue to 9264. LORD JAMES OF BLACKHEATH: If you be co-sponsors, and by Network Rail, who are a key have any further thoughts on it I think it would be delivery partner for the Crossrail project and its helpful to know. operation once it has been constructed.”

9265. MR PURCHAS: My Lord, I am very grateful 9269. Then it goes on to refer to Network Rail’s role. for that invitation, thank you. I was just telling your One comes over the page, my Lord, to page 10. Your Lordship that following 18 July, we were in Lordship will see, at the top of that page: “As a result, discussion, we thought,8 on an entirely positive and the security of the access rights which Crossrail will common understanding that we were going to be require are vitally important because, like any other operator and maintainer. That is well-illustrated at project which needs to be able to remunerate its tab 9, my Lord. This is actually part of what was an investment, the ability to deliver the operation of the agreement that had gone through all the railway is key to that investment being justiﬁed.” It negotiations; it had gone through the lawyers and it goes on to refer to the role of the ORR, which I was actually engrossed—it was sitting there waiting understand is accepted by the Promoters. to be signed by both sides. You will see included within it is Schedule 5. “Brief. It is intended” (as 9270. “Now, it is for the ORR eventually to judge agreed between both sides of the negotiating teams) whether we have got the balance right under its “that Network Rail will become progressively more general duties, taking account of the interests of all responsible for the design, construction, users and taking account of its duty to promote the commissioning and testing of the On Network Works railway network to the greatest extent that is and subject to the Approved Assurance Regime will economically practicable. We would like to think assume the position of Infrastructure Manager (rail that we have sought to secure that balance as best infrastructure) for the Central Core Area of the we can.” Crossrail Route. 9271. Mr Gisby then took up the evidence, as it were, 9266. “It is intended, subject to various other future on page 13, which is at tab 12. My Lord, this is 1 agreements, that once the Central Core Area of the February this year. Mr Gisby introduces himself, Crossrail route is fully commissioned and Director of Operations and Customer Services, and operational, Network Rail will assume the role of says: “I am here because that function within network operator and maintainer. This Brief deﬁnes Network Rail covers several very important areas the joint objectives the parties have in preparation for relevant to today and the access option and so on the Execution Phase of the Crossrail Project.” before us. It covers the timetabling process itself; the oVer and agreement of track access contracts 9267. Entirely consistent: infrastructure manager between ourselves and the train operators; it involves used in the usual way. We signed that on 11 making it all work when it actually is operating, and December and it went as a matter of formality to TfL delivering the outputs that are expected from this and the Department to sign. It was on the development and other things already existing across background of both our understanding of what had the network. been written to us the previous summer and that agreement, which we had not had back signed but it 9272. “I would like to thank Mike for what he said had been eVectively agreed, that we appeared before and echo some of his words . . . an excellent step the ORR, which, my Lord, Lord Chairman was forward . . . Crossrail, I believe, is a very important asking earlier—or my Lord, Lord Snape. My Lord, and welcome investment for railways within London. we have extracted parts of these proceedings at tab It also, I think, pushes Network Rail further forward 11.. The Access Option application was made jointly into other things that we will be doing anyway across by us and by the Department on the basis that we the network, in increasing capacity, seeking to run would, indeed, be the operator and maintainer, or more services and developing more of what is infrastructure manager. colloquially known at the moment as a seven-day

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30 April 2008 The Petition of Network Rail Infrastructure Ltd railway, but, certainly, a railway that is much more satisfactorily resolved the issues relating to intensive in its operations, has much higher levels of maintenance of the central tunnel section.” No one performance than perhaps we have been used to and told us that those issues were about maintenance. operates much more around the clock; at weekends One notes it is coming from the “board” level; this is and so on. not those who were involved in actually negotiating the practical agreement. That was the first hint we 9273. “As everybody is aware, this will be a section 18 had. application, so, to assure ourselves that we can 12 support it, we have undertaken a wide range of 9277. Contemporaneously with that, my Lord, we systems modelling. That does show, as everybody, I got the response to our Petition to your Lordships’ am sure, in the room is aware, that there are a number House, and that is at tab 15. It is perhaps worth of issues still to be resolved, but we are confident that looking at. “In July 2007 the principle was agreed we have not identified anything in that modelling yet between the Promoter, Transport for London and to date that could prevent us from delivering the Network Rail that Network Rail will act as project requirements alongside the existing and Infrastructure Manager for the end to end Crossrail future needs of other users of the railway network.” rail systems during operation—in other words, the entire Crossrail route . . . “, and so on. So far, so 9274. My Lord, I must be clear that technically those good. access options were for the network outside the tunnel because the tunnel does not exist. However, my Lord, it does not really take a great deal of 9278. “It was agreed that all appropriate measures imagination to appreciate that the two are absolutely should be taken to enable Network Rail to assume intertwined; you cannot have one without the other. the role as soon as reasonably practicable, and It is quite clear, in our submission, that there was no discussions have been ongoing since then, focusing suggestion at that stage that Network Rail should be on Network Rail’s input in relation to the design and acting otherwise than as infrastructure manager. I construction of the Crossrail central tunnel section.” have no reason to think that Mr Fuhr thought Just pausing there, that is unqualified, infrastructure anything else; I am not suggesting he was deliberating manager, in the usual way, as far as one understands. sitting there keeping mum—there is no suggestion of that kind—and certainly not to the ORR. 9279. Then: “These discussions between the 10 Department for Transport, Transport for London 9275. My Lord, if I then go on, please, to tab 13, by and Network Rail have recognised that there will be a the middle of February we were a bit conscious we commercial aspect to the detailed arrangements that had not had the agreement back signed. We will allow Network Rail to take on the role of thought there might be the sort of normal time-lag in Infrastructure Manager, as Network Rail will not these things, so we wrote a letter saying: “Can we own the central tunnel and its associated please have it signed back?” It was following that that infrastructure.” I am going to come back to that we were informed, for the first time, on the telephone, because it is bad in law and it is also contrary to the on 19 February, that TfL—and I do just note that— facts of the situation. TfL were not prepared to sign the agreement because it included a reference to maintaining and operating the whole system—the one I have shown your 9280. “The Crossrail Bill does not have to address the Lordship. We were told that on the telephone. issue of Infrastructure Manager as these arrangements need to be settled in accordance with . . . ROGS.” ROGS is one of the regulations; much 9276. That was followed (we got it on 3 April) by a 11 more relevant, of course, is the Access and somewhat Delphic response from the Promoters (I Management Regulations 2005. “It follows from the say “Promoters” but, to be absolutely clear, this is the July 2007 agreement that the Promoter will not Crossrail team). That is at tab 14, my Lord. So we sanction detailed arrangements that would prevent got this on 3 April. He said: “As you are probably Network Rail from fulfilling the role of aware” (well, we had been telephoned on 19 Infrastructure Manager under the ROGS. February) “we have not been able to obtain board Ultimately, these arrangements are being developed authorisation to permit us to sign the agreement.” in parallel with the Bill process as part of the project (This agreement had been agreed.) “I doubt that such implementation process, and it is diYcult to see what authorisation will be forthcoming before we have the Select Committee could be invited to do in respect 10 of these ongoing and complex discussions.” Network Rail and CLRL, 15 February 2008 (SCN-20080430- 017) 12 11 Committee Ref: A54, Extract from correspondence between Document to Petition No. 110—Network Rail Infrastructure CLRL and Network Rail, 31 March 2008 (SCN-20080430-018) (SCN-20080430-019) Committee Ref: A54, Extract from Promoter’s Response Committee Ref: A54, Extract from correspondence between Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9281. My Lord, can I just pause there to say a word other words we have to use it for maintaining the or two on those points. First of all, it is disingenuous railway, so it is all subject to the European Directive for the Promoters to have said there were discussions and, what is more, we are put under a statutory duty with us about the operation and maintenance of the to justify the charges and show that they comply with network that recognise (and I use the word) “the the methodology rules and statement, so there is a commercial aspect” to taking on that role. Operation very tight framework by which we can only charge and maintenance of a rail network is nothing to do what is reasonable and we only use it for what we with the capital costs of providing it, or the costs of have been brought into business to do. That is a providing access to it. structure that exists under the 1993 Act. It has been put on the board now, my Lords, but it is a very 9282. My Lord, I will take it shortly now, and if it is simple structure and it simply does not need to be in dispute then we may have to trouble your caught up in whatever negotiations TfL want to carry Lordships with more detail. The 1993 Act provides a on; the structure is there. So we say it is totally very simple structure, which Mr Berryman referred disingenuous for them to have said that this is bound to. up with some capital discussion about no doubt interest payments, the question of hypothecation, or whatever it might be. 9283. First, if you have a railway and you want to use it as a railway you have to have a network licence. To do that you need to be the operator. You do not need 9285. CHAIRMAN: Lord James? to own it; you need to be the operator. To grant access onto it, either through access agreements or franchises, of which your Lordship will be aware, those have to be applied for by the facility owner. We 9286. LORD JAMES OF BLACKHEATH: Can I are not the owner and we do not want to be and for ask you to think this one through—and I think the the purpose of operation and maintenance, it is answer is probably going to be very simple but I nothing to do with that. As far as those are would like to hear it—let us take an actual case that concerned, the owner—at the initial stages TfL no we have already had before this Committee relating doubt and the Promoters—can either go for an access to a Grade I building in Soho which is the only Grade agreement where the ORR can approve it, and that I building anywhere near the route of central London allows for payment to them what they pay to it or Crossrail and let us suppose that the obligations for other measures they want to include, or the Secretary protecting that building during the construction have of State herself can grant a franchise, again after properly been discharged by the Promoters, and I am tender, with the same financial provisions. To satisfied that there has been a significant dialogue to obfuscate operation and maintenance by saying it is that eVect and that is fine, but let us suppose that in all bound up with TfL and the question of access so doing they have preserved the life of the building rights and capital repayments is a great disservice at the moment but after the completion of all the and, in our respectful submission to your Lordships, construction work that some new factor emerges the two should be understood separately because thereafter which is no longer the responsibility of the operation and maintenance is of a wholly diVerent Promoter because his time has ended but cracks importance to the public interest from the recovery of begin to appear and remedial action is required then. capital assets, which no doubt are important for Where in this whole process does this responsibility delivery of the proposal but should not imperil the shift from the Promoters to any new authority and assurance for the public interest of proper operation, how clear-cut is that continuing responsibility? safety and maintenance.

9287. MR PURCHAS: My Lord, the facility owner 9284. My Lord, can I also say this: I have referred to remains here the Promoters, TfL and the the 2005 regulations which again are based13 on the infrastructure manager. Under the 2005 regulations, Department, they built the thing and it is theirs. They regulation 12 is the provision by which we, the are able to sell it elsewhere but they remain the owner operator and maintainer, recover our costs. It is and on the face of it they will be liable for the totally separate from access rights and all the rest of nuisance that is caused subject to the statutory it. It is a simple basis: the OYce of the Rail Regulator protection. determines the charging framework and the charging rules. We then must charge as he has determined and we must utilise those fees to fund our business, in 9288. LORD JAMES OF BLACKHEATH: So there is a seamless continuity of responsibility for 13 Management) Regulations 2005 (SI 2005/3049) (SCN- secondary errors occurring after construction? That 20080430-020) is my concern. Committee Ref: A54, The Railways Infrastructure (Access and Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9289. MR PURCHAS: Indeed, my Lord, the usual services for the purpose of Railways and Other protection for statutory authorisation, if they have Guided Transport Systems Regulations.” That is the done it negligently then they can be liable, as I qualification that is being added in. “TfL believes understand the position. that the Department shares TfL’s view that Network Rail’s role as Infrastructure Manager will be limited 9290. LORD JAMES OF BLACKHEATH: It to the application of the ROGS. TfL has not agreed might not be negligent; it might just have been that maintenance will be carried out by Network unavoidable fact of circumstance. Rail, or that Network Rail will be responsible for capacity allocation. On the issue of maintenance of 9291. MR PURCHAS: Then there will be the central tunnel section, TfL believes that it has compensation provided for under the Act, my Lord. been agreed in principle with DfT that TfL will manage the regime and that maintenance will be 9292. LORD JAMES OF BLACKHEATH: Okay, carried out on a commercial basis, i.e. there will be a but it is a seamless responsibility, that is what I commercial contract for maintenance services that wanted to know. may be carried out by Network Rail, subject to performance incentives.” Your Lordship will see the 9293. MR PURCHAS: Mr Elvin will put me right stark contrast between that and what the on that but it is nothing to do with us anyway. We Government has been seeking, and successfully have a very modest ambition in life; we are in business seeking, to secure since 2004 through the rail industry to operate and maintain safe and eYcient railways, and ensuring that negotiations by TfL and anyone and that is all we want to do. else on a commercial basis for the safety of the system is really inappropriate on the rail network. 9294. My Lord, I have essentially made the first comment on what is said here and I think I need not 16 9301. My Lord, it goes on if we go to paragraph 14 elaborate on that. That is where we started oV in the at the bottom to “Exemption of the Crossrail tunnel response. My Lord, on 9 April, emailed to one of our section from regulation under the 1993 Act”. This team—and I say that because it did not filter, as it 14 is the first time we have actually seen this suggested: were, upstairs or down the corridor until a little “In the light of DfT’s intention to withdraw the later—is an interesting document and you have got it railway provisions—your Lordships will recall the at tab 22. Just so you have the context of this, your ORR’s interim decision—“TfL has considered how Lordships we were seized of the matter at this stage, these concerns might otherwise be addressed.” (So we 9 April, it was emailed to us— have lost that one, we will see if we can get it in through the back door in some other way). “There 9295. MR ELVIN: By whom? are precedents for the exemption of railways from regulation under the 1993 Act. In addition to the 9296. MR PURCHAS: By TfL. TfL emailed it to us. LUL and DLR networks, both the Channel Tunnel I think it may have come from the Crossrail team. Rail Link and the section of line from Airport Junction to Heathrow Airport owned by BAA are 9297. MR ELVIN: It did not. exempt from the provisions of the 1993 Act. TfL understands that BAA is anxious to retain its rail 9298. MR PURCHAS: It came from the Promoters’ system as an exempt network.” Mr Gisby will show wider team and if need be I will produce the email. the diVerences between those and what we are talking about with Crossrail in the middle of the national 9299. MR ELVIN: It is important. network. “If an exemption from the licensing and access provisions under the 1993 Act could be 9300. MR PURCHAS:15 If it is going to help your granted for the central tunnel section”—and my Lordships, we will deal with that later this morning. Lord, Lord Colville, referred to that and the power is It is a document from Transport for London to the there indeed under the Act—“then this would Department. I will come back to it with Mr Gisby address the issues identified above and specifically but for the moment can I take your Lordships to oVer certainty in order to assist the establishment of paragraph 10. This is the bid from TfL to the a funding mechanism to deliver the required Department. “Control of Network Rail activities: It infrastructure. This exemption could be achieved by has been agreed that Network Rail will be the amendment to the Bill or (and this is the power to Infrastructure Manager for the end-to-end Crossrail which I referred) by order under sections 7 and 20 of 14 the 1993 Act.” It goes on to talk about CTRL being Tunnel Section (SCN-20080430-022) 15 16 CommitteeTunnel Section, Ref: A54, Control TfL—Regulation of Network of Rail the Crossrail activities Central (SCN- Tunnel Section, Exemption of the CTS from regulation under 20080430-023) the 1993 Act (SCN-20080430-023 to -025) Committee Ref: A54, TfL—Regulation of the Crossrail Central Committee Ref: A54, TfL—Regulation of the Crossrail Central Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd privately financed and then 17, and I will pick it up for maintenance and operation, who actually plans halfway through if I may: “TfL as owner of the CTS when the maintenance will be carried out, to what would be able to ensure that any usage rights for the standard, and on what basis, that is something that CTS are consistent with the regulated access rights will be normally looked for as the operator and over the national network. Certainty of usage maintainer, which would be under the access and charges could be established to maximise the value of management regulations. But, my Lord, this is the the re-financing proposition. If third parties wished problem— to use the infrastructure, TfL would enter into commercial negotiations as to terms.” It is driven by 9306. CHAIRMAN: There is no statutory provision commercial incentive. There is nothing wrong with which lays down who shall do it? commercial incentive unless it is going to imperil operation, maintenance and safety. “Network Rail would exercise functions as Infrastructure Manager 9307. MR PURCHAS: My Lord, to say who will under the ROGS”—that is just the safety regs—“but actually do it, the responsibility under the safety its role to provide timetabling, train control and regulations will be for a safe railway, but so far as the engineering access would be carried out under ability to deliver that is concerned, we want that contract. Other services could be unbundled with for assurance that we should be the operator and instance maintenance being contracted directly by maintainer, and normally the network licence would TfL or through Network Rail. The key point being take into account whether you have suitable that this would be at TfL’s discretion. The nature and provisions in place to ensure a safe railway. The extent of Network Rail’s role would be controlled conditions that would be imposed are the sorts of through commercial negotiations as would its costs duties that your Lordship has seen in our Petition and performance.” One might ask where does the that have been summarised that are placed on us ORR fit into all of this. Perhaps I will just read under our network licence. paragraph 20— 9308. CHAIRMAN: The safety must include the 9302. CHAIRMAN: Would you just go on to tell us maintenance? about the access and management regulations because I am not sure how those fit in with the ROGS. 9309. MR PURCHAS: My Lord, you are pushing on a totally open door as far as we are concerned. The idea of making us responsible as safety manager and 9303. MR PURCHAS: The access and management whether we would be prepared to be safety manager regulations are the senior regulations. They provide without actually having the ability to deliver an for the management of the network; they provide for integrated, safe and eYcient railway system is a very charging through the ORR; and they also provide for diYcult one, and we for our part find it very inter-operability. In other words, they deal with the disappointing that for commercial reasons this practical operation and access to the railway. They should be the stance taken by the Promoters in this are the senior regulations if you are looking to see Committee. who runs this railway. The safety regulations also are eVected by the European Directive and deal specifically with the safety management system which 9310. LORD BROOKE OF ALVERTHORPE: Are has to be in place to run a railway, or indeed other you saying that unless you could have full railway assets, and within that there has to be responsibility you could not operate the safety identified an infrastructure manager who is regulations? ultimately responsible for safety. But the non sequitur here is to suggest that the infrastructure 9311. MR PURCHAS: My Lord, at this point in manager under one set of regs is for all the time—and this only emerged in the course of the last commercial reasons it makes sense, TfL, being few weeks and I mean that because although the separated from the infrastructure manager for the document was provided to us on 9 April it only senior regs, the access and management regulations. filtered upstairs, or down the corridor as I put it, rather more recently—we have asked the Promoters 9304. CHAIRMAN: But does safety include three times for a straight answer on “Are we to maintenance? operate and maintain this railway?” The first time we got a clear “No” was yesterday. That decision has not 9305. MR PURCHAS: The standards of safety will yet been taken but clearly we have to consider very be those required under the safety management carefully whether you could responsibly take on the system. In other words, within that system you will safety of this system without having the operation have the safe railway but the responsibility we want and maintenance of it. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9312. LORD SNAPE: Railtrack did that for years, gone through. The Secretary of State is piggy-in-the- not particularly successfully, did they not? middle at the moment, listening to the position of Network Rail and TfL who are not in agreement over 9313. MR PURCHAS: My Lord, that was in the this issue. It does not represent the Department’s unhappy days before the new White Paper. position as to Network Rail’s role other than the ROGS. It is simply TfL’s wish that that be the case. 9314. LORD SNAPE: They operated the regime that you are now saying would not be satisfactory 9322. LORD BROOKE OF ALVERTHORPE: But from the point of view of your clients but that is how having listened to all the evidence so far this morning, Railtrack operated. it would indicate that the position of the Department was abundantly clear hitherto. 9315. MR PURCHAS: And Network Rail came into business to put that right under the new 9323. MR ELVIN: There is a diVerence between us approach. on that and I do not want to steal Mr Purchas’s thunder in making his opening. I just wanted to make it clear to Mr Purchas so he knows where we are 9316. LORD SNAPE: To put a stop to all that. going that that document from TfL is not departmental policy and it does not represent any 9317. MR PURCHAS: To put a stop to it, my Lord. view by the Department. My Lord, indeed— 9324. CHAIRMAN: Mr Elvin, do you say that the 9318. MR ELVIN: I wonder if I could help Mr duties under the ROGS include maintenance to Purchas, at least to this extent, the document from produce safety? TfL—and I would like to see the way in which it was provided because that may shed some light on it—is 9325. MR ELVIN: The duties under the ROGS do not a document which is endorsed by the not go as far as the entire management and access Department. It is TfL’s bid to the Department just as regulations. much as Mr Purchas is making his bid to the Department through your Lordships as to what 9326. CHAIRMAN: I did not ask that; I said should happen. Although TfL says, “We think the maintenance. Department thinks this, we think the Department may think that,” it does not represent departmental 9327. MR ELVIN: I will take a view from those policy; it represents TfL’s bid for power or bid for a sitting behind me as to how far we think they intend position to the Department and no more. Mr Purchas and I will see if I agree with Mr Purchas in due course, can rest assured that that paper does not represent but I would rather ﬁnish hearing what Mr Purchas departmental policy. has to say and then I will come back to it.

9319. LORD SNAPE: Perhaps you could go a bit 9328. CHAIRMAN: Yes please, I want an answer to further. this sooner or later.

9320. LORD BROOKE OF ALVERTHORPE: 9329. MR ELVIN: You will get an answer to that. Can I ask you a question on that, just going back to paragraph 10 in the document it says that TfL believe 9330. LORD SNAPE: While you are looking at that that DfT shares TfL’s view that Network Rail’s role one, Mr Elvin, can you relay to the Department that as infrastructure manager will be limited to the it is somewhat bizarre at this stage in the application of the ROGS. That is not true. parliamentary proceedings that a situation like this has arisen, and if the Secretary of State is piggy-in- 9321. MR ELVIN: We are agreed and there is no the-middle, as you put it, then perhaps mixing my dispute that the ROGS apply. Where one goes metaphors, you ought to climb oV the fence and give beyond that the Secretary of State has not yet us an answer sooner rather than later. decided. We are in a position where there are two parties—Network Rail on the one hand and TfL on 9331. MR ELVIN: Can I say this my Lord, the the other—and both are essential to the delivery of position is this: the Secretary of State has to discharge Crossrail and they have adopted diVerent positions a statutory power and a statutory duty. What we do on maintenance and operation after construction. not wish to be in the position of is to be railroaded We have to listen to both of them and reach a view. into the proper decision to be taken by either party. If we are not to apply the regulations and seek an At the minute TfL has made its bid. Negotiations, as exemption there is a proper process that has to be I understand it, have moved on since that document Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd was produced. Network Rail is making its bid by clear, the principle which Mr Purchas has set out of trying to up the ante by making the point to your integration to ensure proper safety and maintenance Lordship when there are representations and is not in issue; the issue is who controls access and discussions to be had. The diYculty is, as your how maintenance is paid for. To suggest that this is Lordship would accept, that the Secretary of State divorced from finance is unreal bearing in mind we has got to take a proper decision, and it would be are talking about a £16 billion investment of which a wrong, given that TfL has raised these issues—and it significant proportion will come from TfL. We is unwelcome to everybody that there should be cannot simply ignore the views of TfL before we uncertainty at this stage but it has now arisen and reach a decision. having TfL as an important partner in the delivery of Crossrail—to simply ignore it. 9338. LORD SNAPE: There will be degree of cynicism amongst the Committee, Mr Elvin, that the 9332. LORD SNAPE: As my colleague Lord reason TfL are not Petitioners before this Committee Brooke indicated a few moments ago, it seems the is that they have had a nod and wink from the Department has somehow changed its position so far Department that if they keep quiet on this then a as the central section of Crossrail is concerned. decision will be made at some unspecified time in the future with which they might not disagree. 9333. MR ELVIN: It has not, my Lord, because the position that was agreed was the position under the 9339. MR ELVIN: My Lord, all I can tell you is that ROGS. Let me make it clear now—and if your my instructions are that the position TfL has marked Lordships want an answer that is my answer. If you out in that document is not departmental policy, it look at Schedule 5 of the draft agreement, which is does not represent the Secretary of State’s view, and not yet an agreement because it has not been the Secretary of State is having to manage through executed, you will see that it says “subject to future the departmental team a fairly sensitive negotiation agreements” and the subject to future agreements is on matters which are of considerable importance, not what we are trying to sort out at the moment, so it is only to Mr Purchas’s clients but to TfL as well, and not inconsistent and, in any event, the position still is you will understand that such a sensitive negotiation that the Secretary of State has a statutory power is rather diYcult to conclude when one is facing this which Parliament has given to her to discharge, and sort of argument in Committee seeking to force Mr Purchas and Network Rail increasing the undertakings. It is seeking to conclude that temperature by ventilating it before your Lordships negotiation without TfL being a party to it. when TfL is not a Petitioner and there is a negotiation and discussion to be had outside under those 9340. LORD SNAPE: Again I understand that but provisions in order to ensure what decision is made, this is not a new project, it has been around since the it does not help the position for Network Rail to late 1980s. This is a fairly fundamental question and adopt this stance because it is eVectively trying to here we are at the fag end of the parliamentary steal a march on the negotiations. procedure and still no resolution to this dispute.

9334. CHAIRMAN: I do not think this is altogether 9341. MR ELVIN: My Lord, that is right and I the end of the story. understand your Lordship’s position on that but we are where we are in terms of what TfL and Network 9335. MR ELVIN: It is not. Rail are saying to us and they are saying diVerent things. Do not forget as well in this context that 9336. CHAIRMAN: We are going to finish our funding was only secured for this project in October business at the end of next week. Are we going to get of last year. The funding position has remained a resolution of this issue by then, because we will have uncertain for the majority of the passage of the Bill to report to Parliament what the situation is? through the Commons and it was only at the closing stages that the funding mechanisms have been 9337. MR ELVIN: I am sure the Committee will but resolved. It therefore has brought those issues into I think it highly unlikely, my Lord, that there will be sharp focus, particularly since as part of that issue a final resolution to the question of the issue that TfL has committed itself to a significant injection of Network Rail raises. Our position, I am afraid, is a funds as its part of the capital investment. One can firm one that this is a decision that the Secretary of see therefore that TfL has a point of view. Whether State has got to take listening to the concerned the Secretary of State agrees with that or not is still a parties and reaching a decision then based on the matter which is on-going in the discussions. We have, discussions that have been held. We are not going to as I have already said, considerable sympathy for conclude that within two weeks. It is an unfortunate Network Rail’s position and Network Rail holds an position, I can well understand that. Let me make it important card in that we have to operate the access Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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option to get access to and from Network Rail’s main 9352. LORD BROOKE17 OF ALVERTHORPE: If I network but we have to conclude that process and I may, I am trying to understand the consequences. hope your Lordships will understand the diYculty Could I just go back to paragraph 10 and seek some that the Secretary of State is in in this situation. clariﬁcation on that. What would be the consequence, Mr Purchas, if Network Rail was no 9342. LORD SNAPE: Did TfL attach any longer responsible for capacity allocation? conditions to their proposals for funding? 9353. MR PURCHAS: My Lord, so far as capacity allocation, perturbations, a matter of that kind, if I 9343. MR ELVIN: Not that I am aware of but I can look at that, that is critical to the operation of the really do say “not that I am aware of”. network as a whole and it is those sorts of moments and that in itself—and Mr Gisby will explain much 9344. CHAIRMAN: I think you will ﬁnd that better than I—is the interface between changes in members of the public who are potential users of operations and allocation of capacity on a day-to- Crossrail will be very concerned about the day basis is very closely connected with safe maintenance of the track in the central tunnel. operation. My Lord, can I come back—

9345. MR ELVIN: My Lord, we are all concerned 9354. CHAIRMAN: You must be allowed to go on. to ensure proper maintenance and safety. There is no doubt that Mr Purchas’s starting point is common 9355. MR ELVIN: I am sorry, I had not intended to ground between us. be so rude but your Lordship asked me questions and I was only trying to clarify to Mr Purchas what the 9346. CHAIRMAN: Is there any way in which it is status of the TfL document was. going to be resolved while this Bill is in Parliament? 9356. MR PURCHAS: May I start with Lord 9347. MR ELVIN: My Lord, I have said already I James’ question if I may. My Lord, it was emailed to think it is unlikely. us by the Finance Director, Mr Allen Stephen of TfL, copied to various other members of TfL and London Rail, on I think I said 9 April—actually it was 10 9348. CHAIRMAN: While the Bill is in Parliament? April at 8.54 and I will give a copy to Mr Elvin. It says a copy of the paper we sent to the Department on 9349. MR ELVIN: I think it is unlikely. If Royal regulation of Crossrail, so certainly TfL seem to Assent—and I understand there is a possibility we regard it as relevant as to the situation. My Lord, I may get to Royal Assent before the summer—is had not quite finished going through the documents before the summer, I suspect the answer is no. Can I and you may see how far apart the Department is say this though: the question is not that there should from what seems to be the TfL agenda. That is where be proper safety and maintenance; the question is do it came from and, as I say, we will have it copied and Network Rail get it by being infrastructure manager then provided if we may. Can I then come to the under the access regulations or do they get it by fundamental flaw which runs through the recent contract from TfL. It is not about who does it; it is letters, and I mean those of the last few days. What how the financing of that is structured. That is all this we seek is nothing whatever to do with charging for is about: what is the mechanism for delivering the access rights. It is nothing to do with that. I showed safety and who pays. That is what this dispute is your Lordship regulation 12 of the 2005 regulations. about. It is not about achieving safety and Under those regulations we charge for operating and maintenance; it is a question of which is the right maintaining through the ORR for that service. That mechanism to achieve it. leaves entirely apart what arrangements are made by TfL and others for consideration for access rights or 9350. LORD JONES OF CHELTENHAM: what the Department may negotiate through tender Chairman, I am a little perplexed as to how this for franchises. It is a fallacy and it is wrong in law to document came into being? How did Network Rail say that the two are necessarily connected; they are get hold of a copy of this when it seems to be a punt not. From the European Directive and the 2005 by TfL to bid for some business? regulations it specifically establishes separate regimes and ensures that what we charge for as operator and maintainer we get paid for at the rates approved by 9351. MR ELVIN: I am sure Mr Purchas will have the ORR and we use that for our business, which is plenty to say about what I have just said but I say 17 again it is TfL’s bid and no more; it is not the Tunnel Section, Control of Network Rail activities (SCN- Department’s view. 20080430-023) Committee Ref: A54, TfL—Regulation of the Crossrail Central Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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18 operating and maintaining the network. If the not be inconsistent with ministerial statements made Department has been advising itself that is all concerning the future development of Crossrail and connected with recovery of the capital costs of this the possible role of the ORR.” My Lord, we regard scheme, they have been misadvised and are wrong that as totally unsatisfactory given the position of the in law. regulations that are there. There is no need for that sort of approach. 9357. MR ELVIN: I did not say that, Mr Purchas. 9361. I will finish very briefly. At tab 16, we ask for 9358. MR PURCHAS: I am going to continue, with the assurance, and I make it clear there was an error your Lordship’s leave, notwithstanding the in that, this is on 17 April, it included reference to the assistance from my right, for which I am always fabric of the tunnel, that was a misunderstanding,19, 20 it grateful. I am very glad they are not saying it because should not have been there, and that was corrected at it is quite unhelpful of my learned friend to suggest tab 17, including the assurance on regulation, and my that it has to wait on negotiations by TfL with Lord, then we get the reply at tab 18. If your whoever—I do not know who they are going to Lordship has that, it gives us the assurance under negotiate with about where the money for this comes ROGS but then goes on. Can I ask your Lordships from. We are told it has been secured in capital terms simply to look through it. It is making the same point and funded and the ORR has been satisfied with 30 about the necessary commercial dealings with TfL. I years access options. will not read it out and to save time if your Lordships would glance through that. 9359. My Lord, can I make a third point on what my 21 9362. In light of that, we ask for what we regard as the learned friend has said a little earlier this morning unequivocal assurance we are still asking for, and and it is this: he says the Department is piggy-in-the- 22 that is at tab 19. So at last we get a straight answer, middle. My Lord, that is not essentially the position, and then the answer we got, I think yesterday, is at is it because we understand that your Lordships have tab 20. Firstly, “In relation to the maintenance of control over the specific interests one of which is the central tunnel section, the project sponsors are Network Rail’s and your Lordships can determine working on the basis that Network Rail will be what is appropriate, and if your Lordships take the responsible for this, subject to satisfactory view that the operation and maintenance of this commercial terms being agreed. We understand that system should be on an integrated basis and should this is under discussion . . . ” Your Lordships have proceed on the basis of the regulations that have been my submissions on that. That is simply inappropriate passed through Parliament, the 2005 regulations, and unnecessary given the position of the regulations your Lordships are able to do that. They leave under the overseeing of the ORR. Secondly, “In entirely intact any negotiations on capital matters relation to your questions about the operation of the that TfL or anyone else wants to carry on. My Lords, Crossrail system and regulation, we are clear that the that is what we ask your Lordships to take the arrangements must be suitable to enable the access responsibility for, which is your Lordships to ensure rights contained within the Crossrail Access Option that the safety and maintenance and operation of the with Network Rail to be drawn down. Although here system in practical terms is properly secured in the are three networks (Network Rail’s, the central public interest. Your Lordships can do it and we tunnel and the Heathrow Spur) they have to operate respectfully submit your Lordships ought to do it as one.” There is nothing that we seek to do that now. interferes a negotiation of access rights, be it through the franchise or be it through access agreements; it is 9360. I am now going to return to my opening, if I not any part of our case. Thirdly, “There is not a one may. I had not quite read paragraph 20 and perhaps size fits all approach to regulation. There are I ought to do deal with that, it is on page iii: “TfL significant diVerences between the central tunnel would plan to establish a charging/access regime that 18 meets the requirements of the 2005 regulations. TfL Tunnel Section, Exemption of the CTS from regulation under understands that DfT has indicated some flexibility the 1993 Act (SCN-20080430-025) on the regulatory and commercial arrangements and 19 Committee Ref: A54, TfL—Regulation of the Crossrail Central Bircham Dyson Bell and Winckworth Sherwoods, 17 Aril 2008 has indicated that the establishment of the CTS as a (SCN-20080430-026) separate network would be possible. TfL welcomes 20 Committee Ref: A54, Extract from correspondence between this and considers that a flexible approach is desirable Winckworth Sherwoods and Bircham Dyson Bell, 18 Aril 2008 (SCN-20080430-027) to ensure that Crossrail remains subject to regulatory 21 Committee Ref: A54, Extract from correspondence between supervision by the ORR while preserving commercial Bircham Dyson Bell and Winckworth Sherwoods, 28 Aril 2008 flexibility to design the optimum financing package (SCN-20080430-028) 22 Committee Ref: A54, Extract from correspondence between for the construction and maintenance of the CTS. Winckworth Sherwoods and Bircham Dyson Bell, 29 Aril 2008 TfL also considers that such an arrangement would (SCN-20080430-029) Committee Ref: A54, Extract from correspondence between Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd section and Network Rail’s own railway and these somewhat over the top for very basic schemes and need to be allowed for. In particular the financing maybe TfL are thinking they have a fiduciary duty to and ownership arrangements for the latter are their taxpayers and would like some comparison so diVerent.” That is the key point. It is financing and far as work is concerned. ownership, which is nothing to do with what we are talking about. There is no diVerence whatever as to 9371. MR PURCHAS: I obviously go straight to operation and maintenance and safety, they should regulation 12. It is in the purview of the ORR. There be operated together under the regulations. If there is are procedures for that to be tested and we are under any diVerence going to be pointed to one would a statutory duty only to charge within that expect to find it in this letter. Finally, “This is a framework. The machinery is there under the complex matter on which an overall package of regulations which accord with the European financing, operational and regulatory arrangement Directive and there is absolutely no need at all for needs to be produced in discussion with Network negotiation, flexibility or commercial dealings on Rail and the ORR as part of project implementation. this. It is far too important for that, in our It is not sensible in the meantime to give piecemeal submission, and there ought to be a straightforward undertakings.” signing up to those assurances. Your Lordship notices there is not a word here for what TfL are 9363. Your Lordships know if there was ever a hope asking for; that is deregulation. If the Promoters are of having some comprehensive package dealing with so far away from what TfL are asking why have they capital financing as well as safety operation and not said— maintenance, that is now a forlorn hope. It is not going to happen during the passage of the Bill. 9372. MR ELVIN: —It is sensitive. Therefore in our submission the time has come where operation and safety need to be dealt with now and 9373. MR PURCHAS: It is sensitive, my Lords, they can dealt with separately not on the basis of because your Lordships will know the weight that has piecemeal undertakings but by comprehensive and been placed by Mr Berryman, by the industry and by specific assurances that we have been seeking and the public on the ORR and the structure in the Act. continue to seek. My Lord, without any reference anywhere that I am aware of publicly of the proposal to deregulate, it 9364. CHAIRMAN: Is this reference in the first came to our attention first when the Finance Director paragraph to “satisfactory commercial” terms a of TfL in April sent us this paper, then you would reference to bringing in contractors to do the think the Department would have made it clear, at maintenance? least to your Lordships and so far it is wholly silent.

9365. MR PURCHAS: My Lord, indeed, I suspect 9374. My Lord, that was all I was going to say in it is. It is back to Railtrack and all that I think. opening. I am sorry I have gone on slightly longer than I would have intended and I am going to call 9366. CHAIRMAN: This is why I am concerned Mr Gisby. about the maintenance side of it. 9375. CHAIRMAN: Before we do that, it is now 9367. MR PURCHAS: My Lord, rightly. Although traditional that everybody goes and has a cup of it is said by Mr Elvin that it is nothing to do with us, coVee. TfL and the paper, this is precisely what TfL are seeking. They want to go out and drive the After a short break negotiations with Balfour Beatty or whoever it may be, and I have no criticism of those firms, but it needs to be, and firmly in the public interest, within the 9376. CHAIRMAN: Mr Purchas, do you want to context of unified and integrated responsibility. begin your evidence?

9368. CHAIRMAN: It is a Metronet situation, is it 9377. MR PURCHAS: Thank you, my Lord. I will not? call, if I may, Robin William Gisby.

9369. MR PURCHAS: My Lord, yes. MrRobinWilliamGisby, sworn Examined byMrPurchas 9370. LORD SNAPE: I am sorry, forgive me, Lord Chairman, Mr Purchas, not necessarily, is it? There is 9378. MR PURCHAS: Mr Gisby, you are Network a widespread view within the railway industry, if I Rail’s Director of Operations and Customer can put it this way, that Network Rail’s pricing is Services. Is that right? Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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(Mr Gisby) Yes, that is correct. organisation would be letting the maintenance contract for that network. 9379. You have a Master of Arts in Engineering and 9382. Has any decision been taken by Network Rail Science and a Masters in Business Administration. whether it is prepared to take responsibility for safety You are a Chartered Engineer and you have 20 years’ in a situation where it was not the infrastructure experience in a variety of industries. You are a manager for the whole system? Member of the Institute of Production Engineers, (Mr Gisby) No, it has not and it would not be, given you have a Chartered Diploma in Accountancy and that, as was made clear earlier, from last summer Finance, and you are a Fellow of the Chartered onwards we never contemplated that we would be in Institute of Transport. Is that right? that position. (Mr Gisby) That is correct. 23 9383. I want to come to performance briefly, if I may, 9380. Just tell the Committee please about your and we do not want to weary the Committee with practical experience and involvement in the this, but we have got some exhibits in tab 5. Do you management of the railways in this country. have those? (Mr Gisby) I was involved in railways a little earlier (Mr Gisby) Yes. These show the main basis by which on and I then went oV to do other things and I came the industry measures train performance. This has back and joined Railtrack in early 1997. I did a been referred to elsewhere as the ‘public performance number of posts there. I guess the most significant measure’. You can see the big dip in 2000 one in relation to my current role is that I went to run immediately after Hatfield. That would mean that one of the zones, as they were, of Railtrack at that little over half the trains were arriving on the on-time time, immediately after the Hatfield incident, in measures that we use. You can see a steady York. Most of my time thereafter was about improvement since then. The dip during the year was restoring the performance of the services, about the traditional autumn issue which increasingly we dealing with the maintenance issues and the have got better at dealing with, and you can now see infrastructure issues that were apparent in Railtrack that we are running at an MAA, which is a moving at that time. As Railtrack moved on to become annual average— Network Rail, I became part of the senior management team at Network Rail. I am now 9384. CHAIRMAN: What is it? accountable for the operation and performance of (Mr Gisby) It is the moving annual average, so you the network, the timetabling of it, dealing with access are taking the position over the previous 13 periods. issues and so on for the day-to-day running of the We run 13 four-week accounting periods, so it railway across the whole network. averages out with individual days or individual seasonal things or floods or other things that aVect 9381. I have said a word or two about the structure the railway. These figures are now about four or five of the rail industry which my Lords had heard in any weeks old and the industry collectively has achieved event from Mr Berryman. I want just to take you, if a tremendous target where we are now running at 90 I may, to the position under the safety regulations per cent PPM on the moving annual average. I think and the question raised by my noble Lords, Lord the first page really summarises where we are and the Colville and Lord Snape, about the situation next couple of pages refer to that. described by the TfL paper where one had responsibility on Network Rail as infrastructure 9385. Just before you leave that, is this an example manager under the safety regulations, but there of PPM? would be commercial provision through TfL of (Mr Gisby) This is the network-wide PPM for all maintenance and operation. Can you just help with trains. that? (Mr Gisby) I have to say, I have no experience of that 9386. So it is an example of a PPM? and I think that was more diYcult than actually the (Mr Gisby) Yes, this is what has happened over the situation Railtrack was in. Railtrack, as is well last four or five years. This is the total position for the known, had contracted out maintenance, but at least 20,000-plus trains that we run. the contract had been let by Railtrack directly. Of course, all the work that we have done in the last few 9387. I perfectly understand that, but we have always years has been to reintegrate that and to transfer, I had diYculty with all these acronyms, and I am not think it was, some 16,000 staV from the maintenance alone in not knowing what a PPM is, but now this is contractors back into direct employment by Network an example of one, is it? Rail. I have no experience of being accountable for 23 the safe operation of the network in which another 20080430-030) Committee Ref: A54, Network Rail—Performance (SCN- Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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(Mr Gisby) Yes, it is. level crossings which remains one of the significant 24 safety risks for users both by road, rail and on foot, 9388. MR PURCHAS: We can go to the next and those again are at the27 lowest levels. While doing sheet. that, we have been building and expanding the (Mr Gisby) Yes, I think the second page just notes railway. There are some figures on the next slide that punctuality on the railway is now at its highest called ‘output volumes’. These are a few measures level for nine and a half years. I would also point out of things that we do. They are referred to often as that that is more trains and many more people on ‘engineering works’ and they appear often in the those trains. Considering the position that the press where we appear to be disrupting people, industry was in nine and a half years ago, it is now particularly at weekends and bank holidays and so handling more passengers than, I think, since records on. S and C units are sets of points, individual sets of points that connect two diVerent tracks, and you can began25 outside the unusual circumstances in the Second World War. There is one other way of it being see from six or seven years ago that we put in 130 of measured, if I may go to the next slide with the bar those, so maybe two in a weekend and we now do charts. We obviously, in working closely with the seven, eight, nine, ten in a weekend. It is a bank train operators, measure things as they are our holiday this weekend and we will do significantly customers in their terms, which is the trains that run more than ten, I expect. We replace the ballast, the on time. In addition, we look at the delay minutes stones underneath the track, and you can again see that we cause and these are adding up all the minutes more than a doubling of the volume that we are doing attributable to our own performance from things that at, and you can see in the right-hand column the that happen day to day on the network. We are set number of miles of rail that we replace every year, so targets every five years by the OYce of the Rail we are now replacing more than ten miles a week Regulator. We then set ourselves tougher targets compared with less than half that figure six or seven because we like to do better, and this is the position years ago. over the last couple of years. The actual position four or five years ago immediately after Hatfield, that 9390. MR PURCHAS: Before you go on to that, we number would have been something like, I think it are going to come to fragmentation in just a moment, was, 14.8 million minutes, so we have continued to but how important from the public point of view and bring that down. This is a diVerent way of looking at the eYciency of the railway is the planning and co- performance, but it is the total minutes that are ordination of works of that kind? attributable to us and, if I may go to the next slide (Mr Gisby) Well, it forms a significant part of what I headed ‘Safety’, of the26 indicators that we use, I think am accountable for. Access to the railway to do this it is a comfort to everybody that those are in better work is critical. We all know that there is a sense, shape than ever and have continued with year-on- particularly at weekends, that too many people go on year improvements. We do get broken rails on the buses for cancelled trains and so on, so organising network, and it is a consequence of essentially the access to do a significantly increased volume of work friction-based system of a steel wheel on a steel rail, while continuing to run the service for the benefit of but those are record low levels. Of significant tragic people who want to use it and drive up performance accidents in the past, one thinks of Ladbroke Grove is several diVerent ends of quite a diYcult challenge, and Southall and so on, trains passing signals at red, but I think over the last two or three years we have so a tremendous reduction in the last six or seven done that quite well. What, without doubt, has made years, as much due to the eVorts of the train it significantly easier compared with where we were operators as ourselves. Regrettably, we have had two pre-Network Rail and when things were contracted workforce fatalities this year, but actually again, if out, if it is all within the same organisation,28 it is just you go back in the statistics, those are at very low easier to manage and organise these things than if it levels compared with the safety record— was more widely dispersed. That also, if I may go to the next slide, has helped with this issue here. These are percentage reductions in our costs that we are 9389. LORD JAMES OF BLACKHEATH: Were asked to make in what is referred to as “CP3”—I these separate incidents? regret yet another railway acronym—that is the third (Mr Gisby) They were separate incidents, these two, control period, a five-year period that ends March yes. Those again are at low levels, looking back over next year. Prior to this five-year period the OYce of the last five or ten years. The one other aspect is Rail Regulation set out what it expected us to achieve where the railway touches on other parts of life at in terms of reducing our operating costs, our 24 maintenance costs and the costs by which we carried 20080430-031) 25 27 Committeeminutes (SCN-20080430-032) Ref: A54, Network Rail—Performance (SCN- 20080430-034) 26 28 Committee033) Ref: A54, Network Rail—Performance—delay CommitteeeYciencies in Ref: CP3 A54, (SCN-20080430-035) Network Rail—Output Volumes (SCN- Committee Ref: A54, Network Rail—Safety (SCN-20080430- Committee Ref: A54, Network Rail—Improvement in Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd out renewals on the network. Those are significant did not have to do that and at the state we were in at numbers. Overall, we expect to have taken a third of the time that was quite a bold thing to do because we the cost out of delivering improvements on the took on another enhancement and development railway over this five-year period. That is many, which would have been critical to the opening of many millions of pounds. The discussions we are Terminal 5, to be honest for no real upside. We do not having with the OYce of Rail Regulation for the next make an awful lot more money for doing that, we do control period of five years, the total figures in there not get much more to do, but it was just the right are well in excess of £20 billion over five years. If you thing to do and we delivered it on time. are receiving 20 or 30 per cent of that amount, that is a significant amount to take out. It is just much more diYcult to do it if you have multiple interfaces with other organisations as opposed to whether it is more 9394. For the lay man like myself, they are seen as an integrated. That is not to say that there is not a view independent operator, an independent operation. out there—and I know Lord Snape expressed that (Mr Gisby) It is a unique case, if I may, my Lord, that earlier—that we are still expensive and other people they are both an independent train operator and they at times think they can do some of this more cheaply. have their own bit of railway as well as they come In cases that may be the case, but certainly the onto our network. That is quite a unique position. transparency and openness with which we now do The Channel Tunnel Rail Link is a bit like that. They this and the eYciency we have made I think puts us came to us and asked us to maintain and operate the in a pretty good place for the five years. railway so it is planned, maintained and operated in a seamless fashion where they, as a train operator, can bid for access all the way into Paddington and 9391. MR PURCHAS: Indeed it was Lord Snape’s stopping patterns between Paddington and the question, but under regulation 12 of the access and terminals. management regulations, as infrastructure manager, is the machinery for the ORR to approve the charges you are entitled to make? (Mr Gisby) Indeed, it is. 9395. Is that a model that could be replicated elsewhere? 9392. Is that a transparent process? (Mr Gisby) Yes, it is. It works very well. (Mr Gisby) All too transparent at times, yes.

9393. LORD BROOKE OF ALVERTHORPE: 9396. CHAIRMAN: Are you the infrastructure Could I ask a question, if I may, at this point. manager? Heathrow Express operates as a separate and (Mr Gisby) Yes. independent entity, I believe. What is the nature of the relationship between yourselves and them? (Mr Gisby) We operate that railway for BAA. We do not own it, we operate it and maintain it to agreed 9397. BARONESS FOOKES: BAA have delegated standards and we integrate the trains coming oV it to you the whole of this in practical terms? onto the Great Western Main Line and the trains (Mr Gisby) Yes, for the maintenance and operation leaving the Great Western Main Line in the of the tracks and signals, not the station, the central timetabling process that we develop for all operators. terminal area stations and so on. We do not wish to The trains running on that this morning and the seek to run things like that, but the track and the pattern of services will have been developed by us and signal and maintenance of it, we would do that. Also all the other operators, starting a good 18 months ago if, for example, as we did last Christmas, we dug up actually and we would have worked out what is the and put back the junction itself because it had not right pattern to work. We did have a discussion with been working very well, we would have organised BAA I think about—I could check exactly—three that and what it meant for getting passengers into years ago about how Terminal 5 would be developed Heathrow on Boxing Day and beyond when we chose and whether they might want to take it all back to do it and what it meant for passengers on the First themselves, run it diVerently, put their own signalling Great Western services. We would organise all of that system in and have their own signallers operate what in a balanced way and we would make judgments we call “Airport Junction” onto their bit of railway. about is it better to maintain a Reading service and After some fairly high level discussions at chief not Heathrow, or to get some trains into Heathrow executive level they decided that was not the right and not Reading, or stop the CardiV service? That is thing to do and we could expand the development of what we do day by day everywhere, what we are the service and do some things to the signalling at the doing this weekend in rather more places than people junction which would be a better way of doing it. We might wish. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9398. It is wholly integrated? (Mr Gisby) I think one needs to get a sense of what (Mr Gisby) Yes. the broad scale of something called “operation” it is. It is not just running the trains in the morning and 9399. MR PURCHAS: You have made a signalling them; it is not just dealing with them when distinction, my Lords, between running trains and they may go slightly wrong and getting them on back maintaining and operating the railway, which is your on plan, as we say. It starts a couple of years in business? advance. The timetabling process is not quite as (Mr Gisby) Yes. arcane as described in previous meetings and hearings and so on, it is more automatic and 9400. Just in case a comparison is made, as I think systematic than might have been the case. We work TfL made it, are there any dissimilarities in terms of with the industry, we listen to where they would like integration between Heathrow Express and the to run services, we are cognisant of the commitments Crossrail central section? they have already made in franchise agreements and (Mr Gisby) I think in scale and location, yes, there we get into some very detailed analysis and modelling are. It was sensible for both parties that we have of how we could fit that all into together and what ended up where we are with Heathrow Express. Had would be the ideal pattern of services. We do not we not done so, it would have been, I think, a brave always get unanimity and it is useful, I think, for all move for them to be involved in the maintenance and parties that the ORR is there to judge, to make operation of a relatively short stub of railway. It considered views, to act as arbiter where there are would have created a planning and timetabling diYculties in relation to some of the pinch points on interface between the two organisations, which I the network that we have at the moment, people want think would have been diYcult and a signalling to run more trains then we might reasonably be able interface which would have been diYcult. If my staV to fit in given the criteria and pressure on raising were just running the Great Western Main Line, they performance, but we do that under a set of would constantly be on their toes, wondering what regulations, practices, case law, appeals, hearings trains were coming up the tunnel and how they would and judgments that have been quite fine-tuned and fit them in and so on. If you consider a high-speed very well-tuned under the ten years plus they have train coming up from CardiV, that takes about two been operating. It works pretty well. I think the miles to stop, one and a half miles depending on the evidence of the last three or four years shows it works gradients and so on. If you are running those at times pretty well. Performance is very good and volume is to ten, you are trying to clear a headway in front of it up and seems never-ending in its increase. To come because it is going at two miles a minute and it has into that with a diVerent structure and to come into about a 14, 15-mile headway in front of it, so you are it bidding for things in a diVerent way to what I think trying to match things coming in at a high speed from the rest of the industry is used to would be very the west with things coming in relatively slowly. Why diYcult to manage and it seems to me to make things Crossrail is so diVerent is that you are doing that at more complicated than probably they need to be. either end of two of the busiest parts of our network, so you have trains emerging into what we call “the throat” at Paddington and trains emerging into the 9402. You have dealt with maintenance and throat of Liverpool Street heading west and east in renewals. What about the eYciency of the system some very diYcult, busy parts of the network to run. itself? To what extent is that going to be aVected? I have seen some previous hearings; the scale and (Mr Gisby) Again another aspect of the job and the intensity of those are really, really quite significant. role that we carry out is how live minute-by-minute There has been debate about a western cord into the railway is. Something happens somewhere on it Heathrow. Liverpool Street Station handles twice the all the time and, while there is a planned timetable volume of Heathrow every day and it does it in about which one can model and say, “Yes, in this route with a three-hour window in the morning and in the these trains you should get a high level of evening. We all know regrettably from 2 January performance”, things in a live system happen all the what happened if Liverpool Street Station does not time. A part of my function is about controlling it, open for a few hours. It is not a comfortable place to bringing it back to plan, getting it back on track, an be. Being able to do this in an integrated manner eye to what is happening in the next hour, an eye to seems to me quite important. what is happening in the next rush hour and tonight and tomorrow. 9401. Thank you very much. I think we have finished exhibit 5. Can we then come on to the question of integration and fragmentation and can you help us 9403. 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(Mr Gisby) They are huge in as much as they are exhibit 8. This is a letter of 18 July, 2007. I will come intense and spread rapidly and the impact can be felt back to the email in due course, if I may. I do not 50 or 100 miles away and on some routes within ﬁve want to take time on how this letter is construed. or ten minutes or half an hour. Given the scale of What was your understanding—Network Rail—as Liverpool Street, if one had got everybody into to the infrastructure manager of the central section? Liverpool Street in the morning and lost the services, (Mr Gisby) At the time that all this was going on, I something happened, there is an electricity blackout was quite clear that that is what we were going to do or something, we would have public order issues at and that it was not deﬁned narrowly, as I would say Liverpool Street Station probably within 45 minutes, it, in terms of the ROGS but it was the broader things escalate that quickly. If we had delays or understanding of what an infrastructure manager something, for instance, between Reading and does in the wider context of access planning, of Paddington that would ricochet back up the tracks judging the right balance between performance and towards CardiV, Bristol and Exeter very quickly capacity, which is something that was given to us on within about ten or 15 minutes depending on the time behalf of the industry post the rail review, as well as of day. Again, if Reading locks up, then services, say the day-to-day safe operation and management of the freight trains, running from Southampton up to the railway in its actual delivery. the North West again would be aVected almost immediately. Of course, there is not a lot of places 9406. So infrastructure manager as within the 2005 you can put trains of that size once they have started regulations? out on the journey. So the ripple eVect across the (Mr Gisby) As we do everywhere else; as we do for network because of the location of where Crossrail is the main network, as we do for Heathrow and as we would be very profound very quickly. do for one or two odd bits of railway in ports and elsewhere. Yes, exactly the same as everywhere.

9404. Is there anything you want to add on the 9407. When one finds (this is in tab 9) the Network importance of integration, so far as safety is Works Development Agreement, which you concerned? appreciate is one of the areas being looked at, (Mr Gisby) I think I come back to the point earlier referring to30 the role of Network Rail as “assuming that if things are across diVerent contractual the role of network operator and maintainer”, first, commercial interfaces it does raise questions about what was the position so far as this agreement was standards, about compliance, about checking, cross- concerned? We know it was not signed because of checking, inspection, and so on, that just get TfL’s board, but what was the position as far as those unnecessarily complicated. I think that is one of the who were negotiating were concerned? lessons coming out of Railtrack and going to (Mr Gisby) There were some interesting details in the Network Rail and bringing maintenance back in- negotiation but this seemed a very obvious thing to house. I think, also, on the eYcient cost and the do. As I have said earlier, Crossrail is a tremendous eYcient operation of what is being contemplated scheme. Its impact on an awful lot of people who being built here as well, it is very useful if the come in and out of London for many years will be organisations that are going to run it at the end of the wholly negative. There is some massive work to do at day are involved early on in its specification and its Paddington and to the west, and some significant design, because you can apply hard lessons that we work to do at Liverpool Street and elsewhere. have learnt day-in, day-out from the results of things Getting that done when you are also trying to run a that have gone wrong, and so on, and make sure that railway for the next few years is going to be a major you build something that you have a much better challenge. We will have reduced access into chance of operating next time round. Clearly, what is Paddington and Liverpool Street while this work is being built here is going to be tremendous but it is going on. So it just seemed obvious that such an going to take performance, volumes and intensity agreement would come into being that we would be further up to new levels than we are used to at the directly accountable for the works that were on our moment. So getting it right at the design stage and railway. designing things out and having an integrated approach to operating it, seems to me, absolutely vital. 9408. Was it controversial as a point, during the negotiation of this agreement?

29 DfT and TfL to Network Rail, 18 July 2007 (SCN-20080430- 9405. Thank you very much. I want to turn to some 010) 30 Committee Ref: A54, Extract from correspondence between other exhibits, if I may, very brieﬂy, because I have Development Agreement, Schedule 5—Brief (SCN-20080430- gone through them in opening the case. We have 011) Committee Ref: A54, Extract from Network Works Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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(Mr Gisby) Not as far as I am aware; not at all. of other challenges. The idea that one could operate domestic trains coming in through Kent on to the

9409. We know what31 transpired. The next thing high speed line and into St Pancras in a diVerent way chronologically was your appearance with Mr Fuhr seems to be to be very diYcult. We do operate the at the railway hearing. That is tab 11. I have read the Channel Tunnel Rail Link and we do provide the relevant parts of that. What was the basis, as you maintenance for it, but it is slightly to one side of the understood it, and would the ORR, as far as you rest of the network. Crossrail is just diVerent because could see, have understood, for the maintenance and it is right in the middle of two very important bits of operation of the railway? our infrastructure. Having another party do the kind (Mr Gisby) I have been to ORR hearings on these of things that I certainly sense fall naturally to us kinds of issues a number of times. While, again, would be very diYcult to contemplate. Crossrail is a big and new scheme, I had no sense, sitting there, that one was not doing it in any way 9412. MR PURCHAS: So far as your concern about other than, dare I say, the normal way now that the the operation or maintenance of that part of the railway goes about these things; that the timetable network is concerned, does that in any way require modelling had all been done by my staV jointly, under the Timetable Group, on behalf of the Promoters, all ownership or any involvement in the capital funding the existing operators and the new train operator that of that section of the railway? would run the Crossrail services; that everybody had (Mr Gisby) No, we do not own the Channel Tunnel contributed to that; and that this was unusual in that Rail Link and we are certainly not involved in the it was an access option but that we were all talking capital structure of that, nor do we own the about an infrastructure that we would timetable, Heathrow extension, nor would we wish to. The rest operate and maintain as infrastructure manager. I of the railway was vested in us, so we do own the rest had no sense that it was going to be anything else. of it, including the stations, but I do not have a problem with operating and maintaining infrastructure that I do not own. I could certainly 9410. I am not going to take you through the cope with that. So this is not a thing about ownership correspondence; we have got that. I want to take you and funding and ﬁnancing structures; it is just about to tab 22, please. We now have the email which has been copied. My Lords, I think the email has been trying to run the railway properly day-to-day. passed to your Lordships.32 We can see it as I have described. The only point I want to ask you about, 9413. A very unfair question, Mr Gisby: is there because it is entirely clear what is being said in it, is if anything else you want to tell their Lordships? we go to paragraph 14. This is about deregulation. (Mr Gisby) No, not at the moment, my Lords. You have dealt with the Heathrow link and diVerences. What about the Channel Tunnel Rail Link? 9414. MR PURCHAS: Thank you very much. (Mr Gisby) Operating the Channel Tunnel Rail Link, or now High Speed 1, is another part of my responsibilities. It is outside the 1993 Act of the Cross-examined byMrElvin domestic, classic railway, if you like. At the moment, that does not really matter because it is, if you like (it 9415. MR ELVIN: Mr Gisby, good afternoon. Mr is belittling, slightly, to say it), a branch line in Gisby, it will not surprise you to hear that much of relation to the rest of the network. what you said about the need for operations, integration, safety, and the like, is not in issue 9411. LORD SNAPE: A pretty expensive one! between us. Can I just put a few matters to you? This (Mr Gisby) A rather fantastic branch line, but in is about the ﬁnal resolution of the issue as to who will network terms it is, really. That will change next year, be infrastructure manager under the access and that is why some of the issues that are being regulations and whether on the contrary, as TfL discussed this morning, again, will become quite argues, they should be exempt from the general important. When the new domestic services come in regulatory regime of the Railways Act. Is that right? from Kent and come on to the high speed line, and (Mr Gisby) That is what I understand the debate to when we are operating the Olympic service from St be about, yes. Pancras, and so on, that brings with it a whole range

31 Crossrail Track Access Option Application, 1 February 2008 9416. I hope you will take it from me that the TfL (SCN-20080430-012 to -016) paper represented TfL’s bid for its position rather 32 Committee Ref: A54, OYce of Rail Regulation hearing on the Tunnel Section, Exemption of the CTS from regulation under than any view by the Department. I am here the 1993 Act (SCN-20080430-023) representing the Department. Committee Ref: A54, TfL—Regulation of the Crossrail Central Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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(Mr Gisby) I am quite happy to accept that, sir. compared with what you are asking me to do. I have to blend in trains at either end, compared with 9417. Thank you. You will also understand where everything else I do. There are a number of sub- TfL is coming from; that TfL, now, post the financing surface stations here. I do not want to run the sub- package in October, is putting in several billion surface stations. The thing that does the blending pounds to this project, is it not? between the stations underground and the rest of the (Mr Gisby) I believe that is true, yes. network are the people, not the trains, because they move from one system to another. 9418. I am not saying the Department agrees with this, but TfL’s position is that it wants to secure some 9422. However, it explains—and I am not suggesting greater control over the infrastructure which it is it leads to a particular answer—why TfL, given its contributing so much to. interest in its own infrastructure and its investment in (Mr Gisby) I am sure that is for TfL to comment on. Crossrail, is adopting a particular position on what If I may make a couple of points that might amplify the outcome should be. As I have already made clear my view: I found some of the language earlier on a on several occasions, it is not something which the little diYcult. I am not “bidding” to do anything here; Secretary of State has adopted or agreed with at this I am not trying to “up an ante”, as I think was said stage, but it does explain their position. earlier on. We put our company’s reputation on the (Mr Gisby) I actually find it quite counter-intuitive, line to deliver access to Terminal 5 in time for its if I may. If you want to put this much money into a opening. We did not have to do that. We dug BAA tunnel and you, at some point, having built it, want out of what, I suspect, would have been quite a to refinance it, then I would have thought the main diYcult position for them to be. I have shown you in thing you want to know is that it is going to work, and exhibit 5 that we will be doing some quite the most likely way of making it work is to go for the considerable enhancements on the railway every day, simplest method of integrating it into the rest of the every weekend, all the way through the next five network. If you try and take it out of the way the rest years. of the railway operates at the moment, with all its imperfections and all the things it has learnt to do 9419. That is perfectly well understood. over the last few years, I think you might end up with (Mr Gisby) On a scale that is massive and on a scale something (and this is well outside my area of that is quite significant in relation to the on-track expertise in terms of financing) that is rather less works between Paddington and Maidenhead, and so eVective than what could happen here. on. We will do the Crossrail works as well, because it is the right thing to do. 9423. That is a point, no doubt, you will be making to us when we have to reach a final decision on this 9420. I appreciate that. issue. (Mr Gisby) Are my project team cheering because (Mr Gisby) It is not for me to comment on the they won the Crossrail contract in addition to funding of this, I just want to try and— everything else they have got to do? Not exactly, but they will do it because it is a good thing to do. Are my 9424. Mr Gisby, let me try this again. TfL is running operations team absolutely cheering because they are this position because of its concerns with its funding. going to have to run 24 trains an hour on top of I am not saying to you that the Secretary of State is everything else they have to do? Not exactly, but they saying that the capital funding is part of this exercise; will do it because, again, they want to run a good all I am saying is it explains where TfL is coming railway. So I am not “upping the ante” or “bidding” from. Mr Gisby, you seem to think I am putting a or trying to make a profit or anything else out of this; more diYcult question to you than I am. It is not an I just think it is the right thing to do. unfriendly question, Mr Gisby. These are points you will, no doubt, be making very strongly when you are 9421. Mr Gisby, let me make this clear: your position asked for your view as to what the Secretary of State is perfectly well understood. You will also should do, are they not? understand that we have to reach an accommodation (Mr Gisby) I am sure they are, yes. with Network Rail over these issues, and your position is understood. You will also understand that 9425. Can I just put33 up what TfL is saying on page 2 we have to integrate this not only with the national of its document—again, just to understand what the network but with the transport network within Secretary of State is having to deal with in terms of London. resolving the issue. We can see TfL’s concerns in (Mr Gisby) If I may, in my understanding, the terms of charging, and you may well say they are operating issues linking this with the transport 33 network for the rest of London are minimal Tunnel Section (LINEWD-110—05-002) Committee Ref: A54, TfL—Regulation of the Crossrail Central Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd unfounded, but that is your position. In paragraph 9 9430. So if you are the infrastructure manager for the and paragraph 12 it comes out most clearly, I think, central section then access rights are the subject of does it not? Paragraph 9: “Charging regime: The agreements with you as infrastructure manager, as most notable feature of a regulated access option is they are on the main network. that it contains no term as to price.” You would say (Mr Gisby) I do think it is quite important to make a the answer to that is regulation 12. Is that right? distinction between being infrastructure manager for (Mr Gisby) Yes. the safe operation of the railway and being the facility owner which can concern itself with matters of granting those contracts and the charging for them. 9426. Because under the access regulations, the infrastructure manager has a duty to act in a fair and 9431. Mr Gisby, you really do not see where I am non-discriminatory fashion, but it must conclude a coming from. I am not trying to score any points with contract with someone who wishes to run a train on you; I am just trying to get the Committee to the network subject to any overview by the ORR, understand where TfL is coming from. If you are the through the access arrangement regime. infrastructure manager for the access regulations, it is (Mr Gisby) Yes, but if I may come back to points your job to allocate capacity and enter agreements made earlier, what we are concerned about is actually for parcelling up the use of the central section. quite narrow; it is not about charging and funding (Mr Gisby) That would be the case, yes. and financing. That is an issue for TfL in promoting the scheme. I am interested in the safe operation of 9432. That then allows you to levy the charges which what is built and how it aVects the rest of the railway Mr Purchas has referred to, and, quite rightly, they I run. I was in that position last summer and my are subject to approval by the ORR under colleagues negotiated with the Promoters of this regulation 12. railway, one of which is TfL, exactly on that basis. I (Mr Gisby) Mmm. went in front of the ORR, which I do quite often, exactly on that basis, and I now find that that basis 9433. Where we see TfL coming from—and I am not probably was not the premise on which I saying they are right or wrong—is to say they are undertook— concerned about the allocation of capacity going out of their control, given that they are paying for a large 9427. There may have been a misunderstanding, Mr slice of it, putting it simply. (Mr Gisby) That may be the case; I could not Gisby. I really do not want to rake over the coals on comment. that. Schedule 5 of the agreement that has not been concluded does refer to the need for further agreements, does it not? 9434. It is what paragraph 12 says. It says that TfL would be dependent on ORR’s determinations to (Mr Gisby) Indeed. provide certainty to investors. I am not saying that is right, I am just saying that is what TfL is arguing 9428. So we cannot say that that would have before us. represented the final stage; there would have had to (Mr Gisby) That is what this paper appears to say, be further agreements. I do not want to rake over the yes. coals on this; I am just trying to explore with you what your position is with regard to where TfL is 9435. We can see that that is tied in with their coming from. I just want the Committee to concerns about the regulations. Your position, I am understand what each party’s respective position is. sure, is this: if you are the infrastructure manager The Secretary of State, as I say, has yet to make a final under the ROGS (and we are faced with a slightly decision, and it would be wrong for me to express any diVerent definition for infrastructure manager under particular side or view, therefore. On the issue of both but let us not go there because I think that will charging, the access arrangements are determined give us all a headache, but they are slightly diVerent under the 1995 regulations and the 1993 Act, are definitions), under the ROGS where TfL have agreed they not? you should be infrastructure manager (and this is (Mr Gisby) Yes. answering my Lord’s question), the responsibility for safety is the infrastructure manager’s. (Mr Gisby) Absolutely. 9429. The 1995 regulations, and we are looking at regulation 16, which is the contract for access which, 9436. You would say, no doubt, in these eVectively, leads to the allocation of capacity—that is negotiations, in due course, it is illogical for you to be with the infrastructure manager. the infrastructure manager under the ROGS, because (Mr Gisby) Yes. you have direct responsibility for safety, and not to Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd have an appropriate level of control under the (Mr Gisby) I do not think anybody has any regulations. experience of operating as TfL suggest. I also think it (Mr Gisby) Yes, I would say that. is important to recognise the commitments and obligations I have to other operators under the 9437. That would be your position in this broader role of infrastructure manager, and the negotiation. access allocation that goes with that, and I do not (Mr Gisby) Yes. understand, at the moment, how I could do that where there is tracks and bits of network that are used 9438. Regulation 3 of the ROGS (if I can just put that by Crossrail, TOC and my existing customers, if in up)—the term “infrastructure manager” is not one case I am infrastructure manager with a broader referred to here. Clearly, it ties into the definition of definition including access planning and capacity infrastructure manager at the beginning of these allocation and all the rest of it and, in the other case, regulations. It says that no person who is responsible I am just operating under ROGS. I do not for developing and maintaining infrastructure (and understand how I could mesh those two together— that must34 mean an infrastructure manager) shall not so much in perturbation (that would be diYcult manage and use it or permit it to be used unless he has enough) but in planning timetables that then I established and is maintaining a safety management become accountable for delivering. system. That is the duty, is it not? (Mr Gisby) That is the duty, yes. 9444. That will be the position you will advance to the 35 Secretary of State in due course. 9439. We can see, just so the Committee is aware, (Mr Gisby) I do not understand how to do that. what the ROGS mean by “a safety management system” in regulation 5(7). They are there set out, 9445. BARONESS FOOKES: Can I ask you, Mr and I have highlighted some of the main features. It Elvin, rather than our witness; am I correct in means control of all categories of risk, in terms of thinking that the Promoters of this Bill are the design, construction and the like, the eVects of Secretary of State and Transport for London? operation of transport undertakings, operating in accordance with the TFCI’s national safety rules and 9446. MR ELVIN: No, the Secretary of State is the all necessary emergency procedures. So it covers the Promoter. TfL is only a co-sponsor of the project. range of safety issues. (Mr Gisby) Yes. 9447. BARONESS FOOKES: They are a co- sponsor? 9440. As I understand it, in this situation, no one is in dispute that it is Network Rail that has the relevant 9448. MR ELVIN: Yes, but the Secretary of State level of expertise to be responsible for these matters. still has duties conferred on her by Parliament under (Mr Gisby) Yes. the various legislative provisions. In order for TfL to obtain what it would like, the Secretary of State 9441. You say that that leads, logically, to your would have to apply for exemption under the becoming infrastructure manager and controlling Railways Act, and I am just going to explore this with access. Mr Gisby in a moment. To do that, there would have (Mr Gisby) Yes. to be an industry-wide consultation. The Secretary of State of course is legally obliged to consider a request 9442. TfL says that could be regulated by contract. to exercise the power and that is the process that we (Mr Gisby) Yes. are going through at the moment. The Secretary of State has yet to reach a decision on that issue which is 9443. As I say, I am merely trying to show the why I am being very circumspect in not stating a final Committee where the dividing lines are. I am not position because it would be wrong to do so until expressing a view because the Secretary of State has those discussions had concluded. to take an independent view based on considering the issues from both sides. However, your position is that 9449. BARONESS FOOKES: But “co-sponsor” you have no experience of operating under contract. suggests equality, does it not, that term? TfL says they want to operate this by virtue of a contract arrangement. 9450. MR ELVIN: Well, TfL do not have a role in

34 terms of applying for exemptions under the Railways railway, The Railways and Other Guided Transport Systems Act. That is the Secretary of State and the Secretary (Safety) Regulations 2006 (SI 2006/599) (SCN-20080430-037) of State alone, and she must, in doing so, not have 35 Crossrail Ref: P67, Use of infrastructure on the mainline railway, The Railways and Other Guided Transport Systems regard to any irrelevant or wrongful considerations (Safety) Regulations 2006 (SI 2006/599) (SCN-20080430-038) and she must do so on the basis of the legislation. She, Crossrail Ref: P67, Safety management system for the mainline Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd therefore, having been asked to act by TfL and to 9459. BARONESS FOOKES: Mr Elvin, if I can just exempt the central section, has at least to consider follow this up, there is no obligation on Network Rail whether or not to exercise the power because that is in the circumstances described of this curious what public law duties require, she has to at least arrangement, as I think it to be, they are under no consider whether to exercise the power. That is where obligation to pick up the contract? They can perfectly we are at at the moment, but TfL’s role, such as it is, well refuse to do so and, from what one gathers, they is no diVerent from anyone else’s. They can request probably would? the Secretary of State to exercise the power and the Secretary of State must exercise that power in the public interest and not simply having regard to TfL’s 9460. MR ELVIN: And they could also make life own wishes, and that is the process that we are going very diYcult because, as I was going to put to Mr through at the moment. Gisby, they are responsible for the management of the access agreement and we have to comply with the access agreement and achieve the 92 per cent PPM 9451. LORD BROOKE OF ALVERTHORPE: So and, therefore, we will have to achieve that even if if they accept that this could be regulated by Network Rail are not managing the central section contract— because I am sure Mr Gisby is right, that how the central section operates is going to be of vital 9452. MR ELVIN: That is what TfL are asking. importance to achieving the objective standards established by the ORR in the access option. Is that 9453. LORD BROOKE OF ALVERTHORPE:— right, Mr Gisby? and it has been accepted by the witness, Mr Gisby, (Mr Gisby) That is right. that that could be done, what would be the consequence of that? It would be you or the Secretary of State who would be— 9461. I told you that I was not disagreeing with you on some of your points! (Mr Gisby) I also would just point out that I do not 9454. MR ELVIN: I was going to do this by asking believe it is going to be the Promoter, the sponsor or Mr Gisby, but I am quite happy to do it directly and the builder who is going to achieve 92 per cent PPM. he can tell you if I am getting this wrong.

9455. LORD BROOKE OF ALVERTHORPE: It is 9462. It is going to be the operator? very diYcult for us to establish what the consequence (Mr Gisby) It is going to be us and the TOCs, the would be. train operators. (Mr Gisby) Well, if it were regulated by contract, then TfL would have to ﬁnd a contractor. I do not 9463. Well, your position, therefore, in these think it would be me. discussions is going to be, and I did say I had some sympathy for your position at the outset and it was 9456. MR ELVIN: I think Network Rail are saying not just empty words, but I understand the logic of that they will not co-operate in those circumstances. your position, Mr Gisby, and your position is that, in I am sure that will be an important part of the order to make the access option work smoothly and discussions that are going to take place. TfL clearly to make the other issues of integration work think that Network Rail would be the contractor and smoothly, you say that that has a certain I am sure Network Rail are very capable of putting consequence in terms of your being the infrastructure forward their own point of view. I hope your manager? Lordships realise that I am not trying to be mealy- (Mr Gisby) Yes, it does. mouthed about my answers to these questions, but I am in a genuinely diYcult situation where the Secretary of State has to make a decision in the public 9464. That is your position and you will no doubt interest objectively and cannot simply respond to this make it to us strongly in due course? Petitioner in the same way as we would normally do (Mr Gisby) Yes, I will. because she has duties under the Railways Act. 9465. If I can come back to where TfL are coming 9457. LORD SNAPE: She is so lucky to have such from, TfL are saying, “Well, you can exempt and do a great air raid shelter, Mr Elvin! it by contract”, but actually I have not ﬁnished Lady Fookes’ question. To be able to enter into the sort of 9458. MR ELVIN: It is not an air raid shelter, my contractual arrangement that TfL would wish, we Lord. Before your Lordships, it feels like a would have to disapply the 1993 Act, would we not? transparent umbrella! (Mr Gisby) Yes. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9466. The access regime would have to be disapplied (Mr Gisby) I think that would be very helpful. I and I think we would have to use a combination of suspect we would start from the position we thought section 7 and section 20. Section 20 speciﬁcally we were in last July. disapplies sections 17 and 18 which are the access regime provisions. Is that right? 9471. MR ELVIN: Well, Mr Gisby, I really will not (Mr Gisby) I am not completely sure about that, but I take up the invitation of raking over the coals am sure there is somebody sitting behind me who can because I do not think that helps as a constructive conﬁrm that. way forward to resolving what is clearly a very important issue.

9467. Yes, Mr Purchas is in agreement. To do that, 9472. CHAIRMAN: Mr Elvin, you are at the there is quite a complex process because the ORR moment representing the Promoters of whom TfL is have to be consulted on the proposals for exemption not one? and there has to be an industry-wide consultation which will include not only TfL who have asked the 9473. MR ELVIN: I am representing the Secretary Secretary of State to do this, assuming the Secretary of State. of State would be ultimately persuaded, but there would then have to be quite a complex public process 9474. CHAIRMAN: The Secretary of State and before this could be done because you are asking the not TfL? ORR to agree in the dispensation of the national regime. 9475. MR ELVIN: No. (Mr Gisby) I believe that is the case, yes. 9476. CHAIRMAN: I am bound to say, we are 9468. You have made the point that, unlike CTRL, becoming increasingly interested in why this strong unlike the DLR and unlike the London representation is coming from you about what TfL Underground which are essentially closed systems, have by way of an intention and, incidentally, when this connects directly into the national network. did they start having this intention? (Mr Gisby) Yes, the CTRL one was like that when we ran Eurostars from Waterloo across the southern 9477. MR ELVIN: This document, as I routes and so on and it will become like it again which understand it— is why I think getting this established is important. We face a similar issue with the development of what 9478. CHAIRMAN: In March? is known as the ‘East London Line extension’ between Dalston on the North London Line through 9479. MR ELVIN: Indeed. to New Cross and the service there. That six-mile piece of railway has been taken out of the 1993 Act 9480. CHAIRMAN: This year? and we understand that TfL intend to operate it and maintain it in a similar way. Again, how that will 9481. MR ELVIN: Yes. work, we are quite uncertain. 9482. CHAIRMAN: And nothing was said about it— 9469. If I were to tell you, Mr Gisby, and I have sought instructions on this, that the next stage in this 9483. MR ELVIN: This was TfL’s opening bid, as process, TfL having put forward its position, is to far as I am concerned, taking the position they are involve the ORR in discussions over how the central taking in that document. section should be dealt with and to involve your organisation, would that be a welcome way forward to you? 9484. CHAIRMAN: Would it not be relevant to the ORR hearing on the access option? (Mr Gisby) It would be very helpful indeed, yes. 9485. MR ELVIN: Well, my Lord, it may or may 9470. So if I say that that is what we are proposing not. I really wish to stress, I cannot speak for TfL. and, if necessary, a roundtable meeting in due course could be facilitated by the Department, involving 9486. CHAIRMAN: You have done so very well Network Rail, the ORR and TfL, that would be a so far! suitable way forward for these arguments to be put forward and evaluated in the light of both the points 9487. MR ELVIN: Well, my Lord, with the greatest that you are putting cogently and TfL are putting respect, that is a considerable misrepresentation of forcefully because of their involvement? my position, with the greatest respect. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9488. CHAIRMAN: You keep on asking us to listen 9497. MR ELVIN: I do not know, my Lord. This to where they are coming from. document came to us, and clearly it was also sent to Network Rail, and we now have to deal with it. 9489. MR ELVIN: Because, my Lord, I am trying to get it across that we are in the position of having to 9498. LORD SNAPE: How come TfL can resolve a position from TfL and, since TfL are not apparently change their mind at the last minute, here, I am simply trying to show your Lordships what submit a document to the Department, have it TfL’s position is. It is not our position, let me make considered, for you to come before this Committee to that clear yet again, it is not our position, but TfL are say, “Oh, the Secretary of State has not yet not here to speak for themselves. Network Rail have pronounced on this particular issue” when we all a very strong position that they wish to put forward. know how government works? If I had written to the The Secretary of State will have to adjudicate, having Secretary of State about this project, she would have heard discussions between those parties, with the dismissed my representations out of hand on the assistance of the ORR. I cannot say on behalf of the grounds that it has been passed by Parliament, Secretary of State, given we have a statutory function though not yet agreed, but it has certainly gone conferred on her by Parliament, what the result will through much of its parliamentary procedure, so how be. have TfL suddenly got themselves into this privileged position of apparently changing their mind and being 9490. CHAIRMAN: She has got a quasi-judicial seriously considered at this late stage in the Bill? position. 9499. MR ELVIN: Because they are paying for half 9491. MR ELVIN: Absolutely and I am sure your the project and we cannot simply— Lordship will understand why I cannot say. All I am anxious for is that your Lordships see that there are 9500. LORD SNAPE: We are! lines drawn up on both sides of the argument by TfL and by Network Rail and I am simply trying to lay 9501. MR ELVIN: We are all paying for it, I am out before the Committee what those arguments are sure, and some of us will be paying more than others, just so that you can understand what we are having depending on where we live! to adjudicate on. 9502. BARONESS FOOKES: Perhaps this is the 9492. CHAIRMAN: Well, I think we can nub of it, Mr Elvin, that they are paying out a great understand that, but, I am bound to say, I think we deal of money and, therefore, they think that that ﬁnd it very surprising that this should have started in gives them a right to meddle in matters where they March of this year and it is not going to be able to be have insuYcient expertise. resolved in front of this Committee and we are going to have to report on it. 9503. MR ELVIN: I cannot make it clearer to the Committee that I am no happier to be in this position 9493. MR ELVIN: My Lord, can I say that I than your Lordships are with my having to explain it understand that point, but we do not say, and it to you, but it is quite right that we do not control TfL. would be wrong for us to say, that we control TfL. TfL have a legitimate position and whether it has TfL have put forward this position and we have to raised it late in the day because funding was only consider it. We are going to try and resolve it as ﬁnalised in October, I do not know, I would be quickly as possible and I understand Network Rail’s speculating, but the fact is that they have raised it. concerns. I also similarly ask your Lordships to take They are a substantial player and as substantial a account of what TfL are saying on the other side player as Network Rail in delivering this project on because that is the issue we would have to resolve and time and in a way which will meet all the public we are going to involve the ORR, let me make that interest. We cannot simply treat them, if I can clear, to help resolve it. characterise your Lordship, as any member of the public writing to the Promoter; they are a substantial 9494. CHAIRMAN: But TfL are not Petitioners. partner in this project and we have to take what they say seriously. We have a duty, a legal duty, to 9495. MR ELVIN: No, which is why I have been consider whether to exercise the power they have anxious that you understand at least that TfL have a asked us to exercise. Can I make it clear, and again I point of view, one that we have to resolve in reaching have taken instructions on this carefully, that the a decision. Department has not been convinced to date of the arguments that are being put forward, but the 9496. CHAIRMAN: Did they not think of this until discussions have not yet concluded and, therefore, a it was too late to petition? concluded view cannot yet be given, but that is the Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd position. It really would be wrong for me to go any decision, it is for the Secretary of State. I say nothing further than that and say what the Secretary of to persuade your Lordships against making whatever State’s position may or may not be. We are going to views your Lordships and my Lady think is involve ORR, we are going to involve Network Rail. appropriate in the report, you will do, no doubt, what There will be a resolution to this and there has to be you think proper on the basis of what you have a resolution to this because we have to link into heard, but I cannot say any more on behalf of the Network Rail’s network, we have to operate the Secretary of State for the reasons I have said. My access option and we have to deliver this project and Lords, we seem to have morphed from my asking works, if Royal Assent goes ahead, will have to begin questions of Mr Gisby to my making submissions. I certainly within the year. So, my Lords, this is not a would like at least to get some points for the eYciency position that I find an easy one to explain to your in doing that, because that really is all I have to say Lordships because I have to tread carefully because on the subject. the Secretary of State has public functions to discharge under law. 9508. MR PURCHAS: Mr Gisby, stay there. I might want to re-examine. 9504. LORD BROOKE OF ALVERTHORPE: Nobody likes to be railroaded! 9509. MR ELVIN: If my learned friend will forgive me also, that really is our position and I have nothing 9505. MR ELVIN: My Lord, I have tried to avoid to add to it in any other submissions. railway puns all the way through these hearings, but that is the line I wish to take. I am sorry. Quite 9510. CHAIRMAN: And no further questions? seriously, we take very seriously what Network Rail has to say, we take very seriously what TfL has to say, 9511. MR ELVIN: I have certainly no further but your Lordships will forgive me for saying this is questions for Mr Gisby. a matter we have to resolve outside the bill process. This is not an issue which arises under bill powers, it 9512. CHAIRMAN: Mr Purchas? is an issue which arises under the rail regulation provisions, most of which have a European origin. We have to act under that legislation, we have to 9513. MR PURCHAS: My Lord, there are two reach a view, objectively listening to all the parties matters I wanted to ask Mr Gisby to help the and reach a view in the public interest. I can Committee on, which is notionally re-examination or understand that your Lordships and my Lady may you probably recall— wish to express a view in your report, but I simply put that forward as being our position and we must stick 9514. CHAIRMAN: We have had a somewhat to it. unusual intervention and I think you are allowed to do the same. 9506. CHAIRMAN: I think your former position is perfectly correct and very well understood, but the 9515. MR PURCHAS: Could I re-morph. The first fact of the matter is in March one of the co-sponsors point is this, if you go back please, Mr Gisby, to tab of this Bill has changed an important factor in the 22 and you will recall you were being asked at some building of the central tunnel, in the maintenance and length about what TfL wanted to achieve, do you running of the central tunnel. It may not be for this recall? Committee to decide that, but it is certainly for this (Mr Gisby) Yes. Committee to draw the attention of Parliament to this situation. 9516. Your attention was drawn to that, although chiefly in cross-examination, of the splitting up of the 9507. MR ELVIN: My Lord, I have no submissions system of commercial contractors. I want to know is to suggest otherwise. Can I just say this: TfL has not that a system that will work? changed the position, TfL is only arguing that the (Mr Gisby) I have to say I do not know. I have no position should be what TfL now says it should be. It experience of it. Sorry, are you referring to splitting is an argument and a position that has been put up contractors? forward. We have yet to reach a conclusion and if TfL’s position is one which has to be followed 9517. Yes, from the responsibility for safety and through and operated, it requires the Secretary of operation and maintenance. State to exercise exemption powers under the (Mr Gisby) Certainly not. It did not work terribly Railways Act which requires a complex public well, as we all know, in Railtrack’s days. If you go procedure to be carried out before the ORR. It is not beyond that and disconnect the letting of the TfL’s decision just as it is not Network Rail’s maintenance contract by one organisation from the Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd operation of another, certainly in my professional 9527. LORD SNAPE: With that stricture in mind, judgment that is a place you do not want to go at all. my Lord Chairman, I will try and keep it brief. Have you a copy of the oVending email in front of37 you, Mr Gisby, the one we have been referring to? 9518. The second point I want to ask is simply on the (Mr Gisby) I have a copy of the attachment to it, not regulations. This is the 2005 regulations. The the email itself. It is going up on the screen. undertaking you have sought from the Promoters and you seek through this Committee36 in tab 1 is an undertaking that Network Rail will have 9528. In the second paragraph of the letter from the responsibility for and control over the operation and MD Finance from TfL he sets out the objectives on maintenance, do you recall that? maintenance so far as the central section is (Mr Gisby) Yes. concerned. His first point is ensuring—talking about maintenance—that it is “priced reasonably”. Do you see that? 9519. It is pointed out to you that, although (Mr Gisby) Yes. infrastructure management is dealt with under part 3 and part 4 enables you to charge under regulation 12 9529. Do you think that is there because there is a for that management, part 5 deals with capacity feeling within the railway community, as I indicated allocations which will include not just perturbations earlier, that sometimes your pricing appears—how but allocation in the sense of access rights? does one put it as diplomatically as possible— (Mr Gisby) Yes. exaggerated? (Mr Gisby) That is a question you should put to Mr 9520. Is there any part of Network Rail’s case that it Allen not me, my Lord, but I am aware of those wants to be involved in those access rights as such? views. I think suYce to say price and cost in things (Mr Gisby) What, it being a beneficiary of it? that we do are all set by the OYce of Rail Regulation. I showed you in tab 5 earlier some very, very good reductions in our costs of the order of 30 per cent over 9521. Or even applying for them? five years. (Mr Gisby) No, we do not do that.

9530. That rather proves my point then, does it not? 9522. You do not do that. I want to be clear, the (Mr Gisby) I would expect to have to continue to do assurance you seek is not one that necessitates you those over the next five years and in the three-ring taking that role under regulation 16? circus in which we live we will have to continue to (Mr Gisby) No, compared with perhaps most reduce our costs and prices at that level, we will have people’s first reading of it, operation to us does to drive up performance further and run many more involve planning timetables, reaching the right trains, so I can understand the gentleman saying this, judgment on the allocation capacity and drawing a but I can also confirm that where we have to we are balance between capacity and performance, but we quite open about our pricing structure and, of course, do that on behalf of people who are then beneficial it is regulated anyway. users of what we provide. We have no interest at all in doing it ourselves. 9531. The email goes on to talk about eYciency and maintenance, et cetera. Are you familiar with 9523. My Lords, I have no other questions unless Mr Birmingham Moor Street Station? Gisby can assist. (Mr Gisby) A little, yes, not as familiar as the other stations in Birmingham, but I will see if I can help. 9524. CHAIRMAN: I think we have asked our questions. Go ahead. 9532. Was your company responsible for re- modelling, if that is the right term, the terminal platforms of Moor Street where Chiltern Trains 9525. LORD SNAPE: I have one or two questions. introduced a more intensive service to London? I do not want to keep the rest of you from your (Mr Gisby) I believe we were, but I am not sure of lunches. I am conscious I would be very unpopular if the details. I did so. 9533. That was done a couple of years ago, was it not? 9526. CHAIRMAN: You might be finished before (Mr Gisby) That was certainly done a couple of years lunch. ago, yes.

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9534. Those platforms are still not open, are they? 9538. The interface between the contractors which (Mr Gisby) I believe that might be the case, but I am would inevitably be a consequence. not sure. (Mr Gisby) At this stage and given the nature of these proceedings, I would say I think it makes it more 9535. You can take it from me that is the case. Do you diYcult to run things in the way that we now like to believe and understand then that the reason why they run them. It does get doubly more diYcult if the are not open after two years is because Network Rail maintenance contract is let separately by the facility has failed to connect up the signaling system in order owner outside the infrastructure manager. If I draw that they should be open? your attention to some of the stuV that was on the (Mr Gisby) That might be the case, yes. previous display about the accountabilities that we have under ROGS, I would go back to a comment I made earlier to Lord Brooke, that one would have to 9536. Is that two-year delay the reason behind the think very carefully about who that contractor would strength of feeling within the railway industry that be if it was done separately. there should be some price comparator and somebody else that can set a price alongside the work that Network Rail does? 9539. CHAIRMAN: We did get through! Mr (Mr Gisby) They are perfectly entitled to do that at Purchas, you have another witness, have you not? any time. Mr Allen, I am sure, is perfectly entitled to do that here. I do think that the reductions we have 9540. MR PURCHAS: No, my Lord, I do not think made are huge. We have been quite open that if other it is necessary to call another witness. I think my people want to come and do work on and around the Lords have the measure of the point we make. network, they are more than entitled to do. If I could quote the examples of the opening of the railway to 9541. CHAIRMAN: Are there any other questions? Abervale, which I think was handled by other people apart from ourselves, I believe it cost more like £40 9542. LORD JONES OF CHELTENHAM: From million than £30 million. To quote the opening of the what you have said, could I summarise your position Stirling Alloa-Kincardine branch which I think was as TfL are perfectly entitled to put in this paper managed by Clackmannanshire Borough Council as however it managed to appear but your opposed to ourselves, I think that has come in tens of recommendation at the roundtable and to the millions of pounds above. Not everybody gets this Secretary of State will be “you should not go along right all the time. What I would also point out here is with this because it might be interpreted by our if you want to do this eYciently and you want to meet friends at the Daily Mail as ‘Railtrack 2’ or ‘Ghost of the scale of cost reduction that is required to make the Railtrack’ or something like that? railway cheaper, which is what we all want, that in (Mr Gisby) I had considered more the safe operation turn will involve massive capital investment in higher of the railway and delivering the passengers on time performance and more productive ways of carrying than what the Daily Mail might say. I am well used to out maintenance. The minute you Balkanise the what the Daily Mail says. railways and start breaking them up the individual bits, you cannot aVord the capital intensity of some 9543. LORD SNAPE: The Daily Mail is compulsive of that kit. My company is investing at the moment in reading in the liberal party, I fear! some very large bits of kit that will re-lay tracks and points and all sorts of things in the middle of the night 9544. CHAIRMAN: Very well, thank you so much, in very short order and high intensity testing regimes Mr Gisby. that will do this automatically, so we do not have track workers on a track which led to the two The witness withdrew fatalities we had last year. I think it would be very disappointing if that high intensity, high eYcient 9545. MR PURCHAS: Thank you very much. My equipment came up the Western Main Line, got to Lords, I was going to say a few words only, but I Paddington, turned around and went back again. It know that would be running into what would be the would be much more eYcient for everybody if it word short adjournment but that would dispose of could continue through this tunnel and deliver a low this petition. cost output for everybody. 9546. CHAIRMAN: This is counsel’s short or 9537. Finally, do you see anything inherently unsafe really short? in what TfL are proposing? (Mr Gisby) I think that is a diYcult question to ask 9547. MR PURCHAS: I very much wanted to ﬁnish because I am not altogether sure of the details of what in three hours, that was my intention, but I have they are proposing. failed. We have covered a lot ground in that time. Processed: 14-08-2008 19:47:59 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9548. LORD SNAPE: He is going to object! . . . Notwithstanding that some or all of the functions of the infrastructure manager on a network or part of 9549. MR ELVIN: Having said that I made my a network may be allocated to diVerent bodies or submissions in cross-examination, there was one undertakings, the obligations in respect of those point I wanted to raise. It was suggested in re- functions remain with the infrastructure manager examination that the issue of infrastructure manager except where the functions and obligations pass to an under the regulations allowed one to pick and choose allocation or charging body by virtue of regulation between Access Option capacity and maintenance 16(3).” and operation. The fact is that under regulation 16 of the access regulations, once the infrastructure 9558. The purpose of that is to give exactly the point manager is established or designated it is the I was making earlier, to allow for the undertaking infrastructure manager which is responsible for the that we want, which is limited to responsibility for allocation of capacity. You cannot pick and choose, operation and maintenance to be handled within the it is the infrastructure manager that has the 2005 regulations. That is why we cast our assurance maintenance, the operation and the capacity in the way we did. What we say to the Committee is allocation. I understand why Network Rail are less simply this: if the Secretary of State, or TfL, wanted interested in the capacity allocation, but it is one of to achieve some other commercial arrangement, they the reasons— have had all the time in the world—two years—to do it. The fact is they have not done it. We say to this 9550. CHAIRMAN: This is operating capacity? Committee that the operation and maintenance of this system is of critical, public importance, and this 9551. MR ELVIN: This is the access agreement Committee ought to say that you, the Promoter, which, if required, has to go to the ORR for must give an assurance that we have the consideration. responsibility, for all the reasons we have drawn to the attention of the Committee. 9552. CHAIRMAN: What trains get on to the tracks. 9559. The last point I just wanted to39 deal with, if I may, was the email from Stephen Allen of TfL. It is 9553. MR ELVIN: Absolutely. Once the the nearest we have got to TfL in these proceedings, infrastructure manager is established under the so we might just see what they say. They say four regulations, that is part of its function as well as the things, and this is in the second paragraph—and I rest. So you cannot divorce the two; once you are know my Lord, Lord Snape, drew attention to it. “I infrastructure manager you are there. I am not think our objectives on maintenance are: ensuring suggesting that makes any diVerence to the position that it is priced reasonably . . . ”. It is a diYcult area that I outlined earlier, but I wanted it to be put on the but regulation 12 provides for arbitration through record for accuracy. the ORR on what we charge. So that is dealt with under the regulations. Secondly, “ensuring that 9554. CHAIRMAN: Mr Purchas, you will be very funding is ring-fenced”—I have said it too many short? times this morning: that has nothing to do with operation and maintenance; that is dealt with on a 9555. MR PURCHAS: Not quite as short, because wholly separate charging regime. Thirdly, what my learned friend has just said was simply “establishing an eVective performance regime with wrong. Let us have the deﬁnition of infrastructure remedies for under-performance.” That is the manager which I provided to your Lordships— obligation on us; it is there in the statute and it is enforced by the ORR. Fourthly, “ensuring that the 9556. MR ELVIN: It is regulation 16, please. nature of the maintenance regime does not 38 undermine ﬂexibility in a possible future sale of the central section.” 9557. MR PURCHAS: Forgive me, Mr Elvin. I would like, if you do not mind, regulation 3. I want to look and see what is the infrastructure manager. 9560. Nothing that we ask for, in terms of Can I just read it, because your Lordships had it on operation and maintenance, has anything to do with the overhead. “Infrastructure manager means sale of their capital asset. That is entirely separate; anybody or undertaking that is responsible in that is a matter for TfL. We say, in terms, to this particular for the maintenance of railway Committee, for these matters of public interest to be infrastructure or the provision of network services led by commerciality—commercial objectives—

38 particularly in the most unfortunate way it has been railway, The Railways and Other Guided Transport Systems 39 (Safety) Regulations 2006 (SI 2006/599) (SCN-20080430-037) Crossrail Centre Section, 10 April 2008 (SCB-20080430-040) Crossrail Ref: P67, Use of infrastructure on the mainline Committee Ref: A54, Correspondence between TfL and DfT, Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of Network Rail Infrastructure Ltd handled by TfL, would be a great disservice to the about compensation under the Network Code—as I Government’s policy for the railways of this country. understand what Mr George said. What I was going My Lords, I apologise for going beyond one o’clock to start by doing was calling Mr Berryman to give but I am very grateful to your Lordships. you some more information on T5 and the possibility 40 of a western link to Heathrow. 9561. CHAIRMAN: Just before you ﬁnish, I am looking at the page that has the three undertakings 9573. CHAIRMAN: Would it not still be that you are seeking. You have got number two. worthwhile trying to get back at half-past two? 9562. MR PURCHAS: We have got number two. 9574. MR ELVIN: I was just trying to give your 9563. CHAIRMAN: Number one and number Lordships some comfort that the issues this three. To what extent are they going to impinge upon afternoon are not going to, hopefully, be too long. the duty of the Secretary of State to make quasi- judicial decisions if TfL comes forward with its current proposition? 9575. CHAIRMAN: It is a comfort, thank you. We will adjourn until half-past two. 9564. MR PURCHAS: Number one is the one I look for. That, plainly, does not depend upon any The Committee adjourned from 1.12 pm until 2.30 pm decision or discretion if an application is made under section 7. So far as 3 is concerned, if it is expressed that there is no intention at present to exempt, that 9576. CHAIRMAN: Welcome back. Mr Elvin, you will be more comforting. I think we were alarmed by were going to say something about British Airports the fact that this sort of emerged out of nowhere, Authority. without anything being said about it at all. It is really 41 1 we are looking for, my Lord. 9577. MR ELVIN: I have got a statement to read out, BAA. I have an undertaking in respect of 9565. CHAIRMAN: But 3 might impinge upon— BAA’s petition which I have been asked to read into the record and I think your Lordships have a copy. 9566. MR PURCHAS: With 3 I can see problems. I This relates to the outstanding concern I mentioned hope I will not be hung, drawn and quartered by to you yesterday about works on the Piccadilly Line those behind me, but I can see problems. I think the for the Heathrow Express. I say this: “The Secretary Committee can still say something about it. of State for Transport undertakes to use all reasonable endeavours to ensure that, save in respect 9567. CHAIRMAN: I do not think there is any of any emergency works required for the continued doubt we will say something about it. What we might safe operation of either London Underground recommend is another thing. Limited’s network or Network Rail Infrastructure Limited’s network, there are no concurrent planned 9568. MR PURCHAS: Absolutely. closures: (a) of all the railway lines between Paddington 9569. CHAIRMAN: Thank you very much indeed. Station and the eastern end of the Heathrow spur attributable to the exercise of the powers of the 9570. MR PURCHAS: I am obliged, my Lord. Crossrail Bill to construct the authorised works and, (b) of the Piccadilly Line between Hammersmith and 9571. CHAIRMAN: I think we will adjourn. I am Heathrow during the hours when either Heathrow not quite sure what are performance measurement is. Connect services or Heathrow Express services and Piccadilly Line services are ordinarily scheduled to 9572. MR ELVIN: I think it is 100 per cent, my operate. The Secretary of State also undertakes to use Lord. My Lord, the position is I am told that BAA is all reasonable endeavours to ensure that the not going to come. I understand from Mr George for nominated undertaker for the relevant Crossrail EWS that on the property issues Old Oak Common is works, Network Rail Infrastructure Limited and now resolved, they are not going to raise the strategic London Underground Limited, consult and co- freight site issues, and so I think we are dealing with, operate with each other in the process of the planning probably, the infrastructure provision question that of works that may give rise to the aforementioned we dealt with with the rail freight group yesterday concurrent planned closures”. That is the resolution and are coming back to tomorrow, and an issue of the last issue with BAA.

40 41 (SCN-20080430-001) undertaking (SCN-20080430-042) Committee Ref: A54, Undertakings sought by Network Rail Crossrail Ref: P68, Crossrail works and Piccadilly line Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9578. CHAIRMAN: That will go on the Register? Terminal 5 and the Connect services have continued to go into Terminal 4, but in addition what happens is 9579. MR ELVIN: That will go on the Register. the Connect service comes around to Terminal 4 and That is a formal undertaking. then goes back to the central area terminals and back to Terminal 4 before it makes its return run to 9580. CHAIRMAN: Now we have got the second Paddington. It is a kind of shuttle and it gives a 15 half of EWS. minute service between the central area terminals and Terminal 4 and a 15 minute service between the 9581. MR ELVIN: No, we have now got Heathrow central areas and Terminal 5. Passengers on Western Link first and I was going to recall Mr Heathrow Express who are travelling to Terminal 4 Berryman to provide some more information on the get oV the Heathrow Express at the central area position at Heathrow and indeed a BAA proposal, in terminals and get on to a Heathrow Connect service fact, to create an air link, which apparently is further which takes them directly to Terminal 4. As I advanced than I thought it was last week. We can give explained earlier, this rail link between the terminals you some information on that. is one of the main inter-terminal routes on the railway. The London Underground connection does MrKeithBerryman, recalled not provide a service between central area terminals Re-examined byMrElvin and Terminal 4 because of the geometry of the Underground lines. This is the only link which exists. BAA recently invested a further £250 million in 9582. MR ELVIN: Mr Berryman, can I ask you to building this link from the central area terminals to return to the question of Heathrow and access to Terminal 5. What is intended to happen when Heathrow Airport. Can I ask you to outline again Crossrail opens is we will subsume the Heathrow what the current position is with regard to access? Connect service, so what is currently a stopping (Mr Berryman) Yes. As I think I started to explain at service between Paddington and Terminal 4 will the previous session, the present rail link access to become a Crossrail service and we will double the Heathrow, the present heavy rail access to Heathrow, frequency. It is currently every half hour from because there is also an Underground access, but the Paddington to Terminal 4, it will go to every 15 heavy rail is what we are talking about today, was minutes and the shuttle that I mentioned before will financed and constructed by BAA Limited on a be discontinued. branch from Airport Junction on the Great Western Line south towards Heathrow. Could we have the plan up, please. Most if this is in tunnel, but they also 9583. MR ELVIN: So Crossrail will go through the paid for electrification of the four Great Western central section? lines between Airport Junction and Paddington and (Mr Berryman) Yes. some modifications at Paddington42 and a new depot at Old Oak Common. In total BAA invested around 9584. And then go out to Terminal 4? £750 million in this project. The map in front of you (Mr Berryman) Yes. I think it is worth just noting the shows the layout of the airport. The first station in geometry here. To all intents and purposes, it is the airport serves Terminals 1, 2 and 3. The railway impossible to serve both Terminal 4 and Terminal 5 then splits into two branches. One goes round to with the layout of the buildings on the airport. BAA, Terminal 4 and that was the original branch which who obviously run the airport, believe it is important was built by BAA some ten years or so ago, and the that both Terminal 4 and Terminal 5 should have other branch goes across to Terminal 5, and that is a four trains per hour and they are very anxious to branch which was opened in the last few months. maximize the modal share of public transport to the There are two train services going to Heathrow. airport. One of the problems with airport expansion Heathrow Express consists of four trains per hour is not just the aircraft, it is how people get to the from Paddington non-stop to Heathrow, first stop is airport and the surface movement. BAA are very the central terminal. Before the opening of Terminal anxious that as many people as possible will use 5, those trains went through to Terminal 4. There is public transport. Splitting services between the two also a Heathrow Connect service which goes from terminals, so for example one Crossrail went to here Paddington but stops at intermediate stations (indicating) and one Crossrail went to Terminal 4 between Paddington and Airport Junction and that and vice versa with Heathrow Express, could give rise uses the relief lines. That then goes into the same to diVerent expectations of passengers, so passengers central area terminal and also went around to would not be quite sure which train they should get Terminal 4. Before Terminal 5 was built all of the on to go to their destination. It is felt to be very train services went into Terminal 4. Since Terminal 5 desirable for a number of reasons and this is just one opened the Heathrow Express services have gone into of them, that the same train service goes to the same 42 terminal but that is done consistently. I think I

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30 April 2008 Heathrow Western Link mentioned in my earlier presentation, BAA and a see there is an existing curve which goes from the number of the other airlines, including British existing single track line here (indicating) and goes Airways, regard the non-stop Heathrow Express round to join the Great Western facing that way. service to London as a key commercial objective for Again, the geometry is that the lines do not cross at the airports. It is an established premium service and 90 degrees, they cross at an oblique angle. The curve it is intended—we had a few jokes about this in the required from this end will be much bigger and previous session—to match the experience of the longer. Also, this has a 15 mile per hour speed limit business class of going through Terminal 5. on it, so to solve that problem you would need quite Heathrow Express does serve a diVerent market from a big curve through here. It would need to be more Crossrail and from Heathrow Connect. A lot of the gently curved and more gently graded than the people who use Heathrow Express have ultimate existing loop. It would go through this group of destinations fairly close to Paddington Station. The lakes, which will be diYcult to get consent for, I normal practice of people coming from overseas is to imagine. Then it will go through the treatment works get the Heathrow Express into Paddington and then of the Three Valleys Water Company. This get a cab to their hotel. It is much easier for them to waterworks is regarded as strategic infrastructure do that because they do not know their way around because it provides the drinking water for a very large London and the cab drivers will take them directly to area of the Thames Valley. Of course, if we went their destination. For Crossrail to take over through there we would have to re-provide for that Heathrow Express, which is one of the ideas that has facility, which would be a very expensive and diYcult been mooted, we would need access from our operation. Three Valleys Water also own the lakes Crossrail tunnels on to the fast lines of the Great here as well. We are not sure whether they are a site Western and that is not possible within the scope of of special scientific interest or not and in the time the present scheme. A flat junction would clearly be available we have not been able to confirm that, but impossible because of the number of conflicting there is certainly a habitat for wildlife. If you were to movements. The only way you could do it would be use this loop to send trains via Heathrow and back with a flyover and that would be very, very diYcult to through this loop and back out towards Reading, it find space for in the area. If Heathrow Express used would give a very long journey time for people the relief lines, it would be a very slow journey making that journey. It has been suggested that long because it would be behind stopping trains all the distance trains from the West Country could run way. It would also reduce the number of either directly into Heathrow if such a line was built, but the Crossrail trains or freight trains that could operate point there is that diesel trains are not allowed to go on the Great Western Main Line. The other point to into Underground stations and almost by definition make is that in practice we have only got four paths the stations at the airport have to be underground. It which we can use for Heathrow, that is what has been would mean that only electric trains could go into allocated in the access option. Heathrow Express and use that system, which would severely limit the have only got four paths, so there are only eight paths number of destinations or origin points which would in total to divide between the airports and this is the be possible to use. arrangement which appears to be satisfactory. We have also looked at west-facing connections and, 9585. What is the position with regard to the type of again, we were slightly wrong-footed the other day trains that operate on the Great Western? because we were not really expecting it to be a big (Mr Berryman) Well, at the moment all the trains issue. The two options we looked at were a west- which operate on the Great Western are diesel trains facing curve at Airport Junction, at the existing and, even with the Crossrail electrification, it would Airport Junction, which in practice is impossible to only be trains from Maidenhead which would be fit into the site because of43 the constraints of the site electric. and the geometry of the lines, how they intersect and a loop line via the existing Colnbrook Branch. Could 9586. So trains from a longer distance would not be we have Slide 6, please? This is the idea that the permitted into the tunnels and the stations to gentleman from the Green Party put on the screen the Heathrow? other day. The line he was showing was from a closer (Mr Berryman) No, that is right. There are other aerial photograph than this, but it goes around there problems as well with the widening of this single- (indicating) and loops around to join the Great track branch into a two-track railway which are to do Western there. What he was suggesting was that a with the M4 and the M25 where the line goes through loop should be built this way round to join the Great the junction there. The Department for Transport Western there so that trains could move in that way. have looked at west-facing rail links from Heathrow This is talking about a possible junction and you can to the Great Western Main Line to allow that kind of 43 Crossrail P67, The GW Main Line and the Colnbrook branch direct train service that I spoke of before because it is (SCN-20080430-044) raised by stakeholders from time to time. They are Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 Heathrow Western Link currently looking at a route utilisation strategy for 9591. Yes, and that is before the TWA Order is made? the Great Western Main Line and that might provide (Mr Berryman) That is correct. an opportunity to revisit that proposal, but, I have to say, speaking as an engineer and thinking of the 9592. LORD SNAPE: These will be third-rail practical problems, I think it is unlikely that that will electric trains, will they? be a scheme that is adopted. The alternative is the Air (Mr Berryman) They will. Track proposal— 9593. So they will be local trains? They will be EMUs, 9587. Sorry, I incorrectly referred to it as “Air Link”, will they not? (Mr Berryman) They will be EMUs, yes. but it is Air Track. 44 (Mr Berryman) If I could have slide 7 please, this is a section of a consultation document that has been Examined byTheCommittee produced about the proposed Air Track network. 9594. LORD BROOKE OF ALVERTHORPE: 9588. Produced by whom? Who owns Heathrow Connect and is that a (Mr Berryman) By BAA, and you can see the existing stopping service? Paddington link, the Heathrow Express marked in (Mr Berryman) Heathrow Connect is a stopping purple, and the Air Track idea is a line going south to service. It stops at stations between Paddington and Heathrow Airport junction. It is jointly sponsored by Staines from Terminal 5. From Staines, trains would the TOC for the area, which I think is First Group, go to Guildford, Reading and Waterloo and there and BAA. would be two trains an hour from each of those originating points, so from Reading there would be two trains an hour which go directly into the airport, 9595. Is it well-used? into Terminal 5. The advantage of that, as I said the (Mr Berryman) I believe it is quite well-used, yes. other day, is that this picks up passengers from a very wide range of destinations, far more so than would be 9596. LORD SNAPE: It is much cheaper, is it not, the case on the Great Western link, and it does than the Heathrow Express? provide that important link to Reading where (Mr Berryman) Well, it is normal fares, unless you Intercity passengers can change to get into the are actually going to Heathrow and then there is a airport. The station at Terminal 5 has been built with premium if you are going to Heathrow, but it is not platforms to accommodate this service and BAA as much as the Heathrow Express. StaV who work at have already committed the necessary funds to the airport can get a season ticket which is a similar obtain consent for this scheme through a Transport cost to what a normal fare would be for a journey of and Works Act procedure. that length. I think the intention is, and I am not sure how well it has worked out in practice, that a significant number of the people who use it will be 9589. We have45 some of the consultation document as people who work at the airport. well, have we not? (Mr Berryman) Yes, and perhaps I could have page 9597. LORD BROOKE OF ALVERTHORPE: 12 please. This is the last page of the consultation And it starts at Paddington? document which summarises the timescale. The (Mr Berryman) It starts at Paddington. consultation is already complete; it closed on 11 April. They propose to deposit a Transport and Works Act Order early next year, with the assistance 9598. So what is the benefit of Crossrail going out to of some notably eYcient agents, and they intend to Heathrow, after listening to your explanation? You start construction in 2010, so this will, if it goes to are providing a slow service in lieu of a slow service programme, actually finish before Crossrail. and you are not sending it to Terminal 5 because there will be confusion for passengers or for the operators. What actually is the benefit of this 9590. In fact you said that the consultation has additional run out there? closed, but of course there is a second round of (Mr Berryman) Well, one of the benefits, and there consultation proposed for the autumn. are many, would be that people who work at the (Mr Berryman) I am sorry, I should have said that airport from other parts of London will find it much this round of consultation has closed. easier to get to the airport than they do now. Paddington is a charming place of course, but it is not 44 Crossrail P67, Air Track Network (SCN-20080430-045) 45 Crossrail P67, BAA Consultation Document—Air Track a very easy place to get to. It does not link in very well (SCN-20080430-046) with the rest of the transport system. Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9599. But people do not come from east London in (Mr Berryman) Well, the total journey time from the great numbers to work at Heathrow. centre of London to Heathrow by Crossrail will be (Mr Berryman) Not now, but they could do when quicker than you would achieve by changing at Crossrail is built. They would not do it now because Paddington, not very much quicker, but it will be the journey would be so tedious and painful. quicker.

9600. But I thought Crossrail was predicated on the 9607. It is quicker by river, is it not? basis of known growth in passengers. I find it totally (Mr Berryman) Well, the river does not go to confusing what is happening at Heathrow, frankly, Heathrow! because it is diYcult to identify who actually does the work, who comes from where and what they want 9608. LORD BROOKE OF ALVERTHORPE: It is and what is the expansion in the future, if we are not very far oV! going back to the exercise we had last week. When I hear you run through slide 6, I think, “What is in it?” 9609. MR ELVIN: I think a river diversion of the (Mr Berryman) What is in it for Crossrail? Thames may be a little more ambitious than a western link! Mr Berryman, for the benefit of those who are looking for business arrangements in the 9601. LORD BROOKE OF ALVERTHORPE: City or in Canary Wharf, is the advantage of not Yes, for Crossrail. having to change one that is considered? (Mr Berryman) Yes, there is obviously an advantage 9602. MR ELVIN: Can you just run through some in not having to change at Paddington, particularly if of the other benefits, Mr Berryman? you have got bags and so on, and we will expect people to benefit from that. It is worth bearing in 9603. LORD BROOKE OF ALVERTHORPE:I mind that places like Canary Wharf are not just can see with it running underneath London what the significant business centres, they are also very benefit is there, but, if everybody has got to change substantial residential centres, so people who live from there and then on to Crossrail at Paddington there will want to go to Heathrow as well. and then it creeps out to Heathrow and is replacing a slow-running train and it is not going to Terminal 5, 9610. In terms of journey times, the only direct I think, “What the hell is it all about?” service from central London to Heathrow is via the (Mr Berryman) What it is allowing us to do is to use Piccadilly Line? paths which exist on the line not just to pick up (Mr Berryman) That is correct, yes. passengers from Heathrow, but to pick up from the intermediate stations as well. 9611. How is the journey time, say, if you do not want to change or the only change you want to do is in 9604. Which is what Connect is doing at the moment, central London? If you do not want to change at is it not? Paddington and you want to go direct, what would (Mr Berryman) That is what Connect is doing at the the comparative journey times be between the moment, but, if you think about a passenger, say, Piccadilly Line and Crossrail? (Mr Berryman) who is getting on at Southall who works in the City There is not a direct comparison, but or works in Canary Wharf, then they will use that if you say from the Tottenham Court Road/Covent train as well as people getting on at Heathrow, so the Garden area, that is where the two lines are reason for serving Heathrow is actually to provide reasonably close to each other, it will just be very extra trains on the network as well as to serve slightly more than half the time to get there by Heathrow. It is not just purely relying on picking Crossrail compared to going by the Piccadilly Line. people up at Heathrow Airport and taking them somewhere or delivering them to Heathrow Airport. 9612. CHAIRMAN: Is the Piccadilly Line going to It relies on being part of the network. Terminal 5? (Mr Berryman) The Piccadilly Line does go to Terminal 5 and Terminal 4. 9605. MR ELVIN: Mr Berryman, Crossrail services do not start at Paddington, do they? 9613. LORD BROOKE OF ALVERTHORPE: Of (Mr Berryman) Crossrail services will not start at course you cannot with Crossrail, you cannot get to Paddington, they will start obviously in east London. Terminal 5. (Mr Berryman) Well, the arrangements for the 9606. If you take the position of someone who wants Underground access are even more complicated than to get to or from Heathrow, say, from the City of the arrangements for Crossrail. If we can put up the London, what would their comparative position be? slide again which shows the location of the terminals, Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 Heathrow Western Link what actually happens is that there is a loop line, this 9618. I meant to add that there is an increase in is the Piccadilly Line, and there is a loop line which frequency of service as well with Crossrail. goes to Terminal 4, it loops more or less on the similar (Mr Berryman) Indeed there would be. The track to this line, back through the central area Heathrow Connect is half-hourly and this would terminals to Hatton Cross and, until Terminal 5 bring it to quarter-hourly, yes. opened, all the Piccadilly Line trains that were going to Heathrow went round that loop, so that was why 9619. LORD SNAPE: If you go back to the I was saying that it is impossible to catch, or very alternative, Air Track, what would be the time saving diYcult to catch, the Underground from the central of changing at Reading and using Air Track to the area terminals to go back here (indicating). Now, airport compared to staying on to Paddington and clearly that would not work with Terminal 5, so that coming back on the Heathrow Express? route cannot serve Terminal 4 and Terminal 5, so (Mr Berryman) That is a very diYcult question to they put another line in from the central area answer at this stage, my Lord. It depends how long terminals to Terminal 5, so now what will happen is you had to wait for a train at Reading fundamentally. that some Piccadilly Line trains will go round that loop, serve Terminal 4 and the central area and some 9620. Well, that is the beneﬁt of the exercise. Say, it is Piccadilly Line trains will come through the central across the platform and you are whisked away in a area and then go to Terminal 5. few minutes. (Mr Berryman) In that case, it would be signiﬁcantly 9614. MR ELVIN: So there will be another quicker to go on Air Track rather than going to destination to go up on the destination indicator Paddington, but the alternative, and the reason I did boards? not answer your question straight, is that you could (Mr Berryman) Yes, there are eVectively two be waiting 25 minutes at Paddington for a train. It diVerent branches and, if you catch the Piccadilly just depends on the actual timing of the trains. Line now, it will tell you which terminal the train is going to. 9621. CHAIRMAN: You do not happen to know how long it takes to go on a bus from Reading to Heathrow, do you? 9615. LORD SNAPE: But why are Underground (Mr Berryman) I am afraid I do not, my Lord, no. passengers then considered to be more intelligent than people using the overground? 9622. MR ELVIN: The position is going to change, (Mr Berryman) Actually I understand that they are my Lord, because Mr Taylor and I promoted a new not! motorway access onto the M4 at junction 11 some years ago and the roundabout has just been given the 9616. You have just explained to us that the reason go-ahead, so that would include a dedicated bus lane why Heathrow Connect and Heathrow Express do out from Reading so the position with Reading will not serve both terminals is because of confusion to change. passengers. The Underground does serve both and presumably the passengers are equally confused or 9623. LORD SNAPE: We can have a west-facing perhaps they are not. interchange, can we, provided it is a road interchange (Mr Berryman) Apparently they are, my Lord. but we cannot have one if it is a rail one?

9617. MR ELVIN: So just to come back to the 9624. MR ELVIN: It is a little simpler than a road benefits, Mr Berryman, you have explained better interchange. journey times, the lack of the need to go on to a Heathrow service at Paddington and that there are 9625. LORD SNAPE: Indeed, I am sure it is. extra destinations to be served because Crossrail will go beyond Paddington and will serve other areas 9626. MR ELVIN: This is what the benefits46 with further to the east. Are there any other benefits which BAA are summarising in the consultation document come to mind? with regard to Air Track—I will get it right—they do (Mr Berryman) Well, there will also be what we not say anything about journey times. They do talked about before which is the connection at Hayes seem to be suggesting it is an improved level of service & Harlington to allow people to change to go back and a greater frequency of trains. That rather into the airport which is only a half-hourly suggests those changing at Reading would be in a connection at the moment and will become a 15- better position than they would be at present which minute connection, and BAA have recently must include also the run-through to Paddington and constructed a new PRM-accessible footbridge to 46 allow for that change to take place. (SCN-20080430-047) Crossrail P67, BAA Consultation Document—Air Track Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 Heathrow Western Link back again but, as I say, they do not give the ﬁgures (Mr Berryman) Can we twist it round? Put the so it is diYcult to tell. picture up, the diagram, and can you twist it round so it is orientated north-south? 9627. LORD SNAPE: Do they give any idea of frequency? 9639. MR ELVIN: Turn it on its side. (Mr Berryman) Turn it on its side. Sorry to be a 9628. MR ELVIN: Yes, it is on the screen in front nuisance here, my Lord, but, being an engineer, I can of you. only read drawings if they are the right way up and (Mr Berryman) It is half hourly. orientated correctly. 9640. LORD SNAPE: I have the same problem and 9629. LORD SNAPE: Sorry. I am not an engineer! (Mr Berryman) Terminal 5 is at the top of this 9630. MR ELVIN: You can see there are two trains drawing and the idea is to build a new track down per hour in each direction so there will be a half here. As it happens, this uses the track bed of the old hourly service and, of course, from Reading there are branch which we have been talking about which goes only two stops before Heathrow, so it will be a up to the north. That branch was truncated by the relatively smooth ride through. M25—I am sorry to report to your Lordship in view of your remarks about the M25—but the southern 9631. LORD SNAPE: One or two stops? part of that branch would be used or close to it in any event and it will join with the existing railway. This is 9632. CHAIRMAN: I think we would like a copy of the line that goes up to Windsor, and a new station that slide, please. will be built at Staines High Street (Indicating). Staines Station is a little way from the main activity 9633. LORD SNAPE: I think you will ﬁnd it is more of the town and a new cord built here to link onto the than two. lines going down to Reading. Trains going down to Waterloo will go down that existing Windsor line, 9634. MR ELVIN: Sorry, three. It is Wokingham, through the existing station site and oV to Waterloo; Bracknell and Staines. trains going down to Reading will go through the new station site around the cord in the centre of 9635. LORD BROOKE OF ALVERTHORPE: Staines and oV down towards Reading. That will go into London Waterloo, presumably using the platforms which are presently sitting there 9641. LORD SNAPE: Thank you. not being used. (Mr Berryman) I am not sure whether they will, but 9642. MR ELVIN: I do not know whether your the trains we are talking about will go from Reading Lordships have any further questions? into Heathrow; another set of trains will go from Heathrow into Waterloo. 9643. LORD BROOKE OF ALVERTHORPE: We have heard enough!

9636. LORD SNAPE: That diagram shows a south- 9644. CHAIRMAN: That is very helpful. Thank facing junction at Staines. Is that accurate or is there you very much. a north-facing junction or is it going to be a north- facing junction? The witness withdrew (Mr Berryman) This is not accurate, my Lord. As you probably know, there are two branches at 9645. MR ELVIN: My Lords, the next matter for Staines, there is the Windsor line that goes somewhat your Lordships is the remainder of EWS’s petition. I oV to the north and then the line which goes down to do not propose to say anything else other than to say Reading and other destinations. I am not sure that is this: Mr George is going to show you in a moment the any better (Indicating). 47 agreement over Old Oak Common which has been reached. As I said yesterday, the arrangement is a sale 9637. LORD SNAPE: That is much clearer! of EWS’s holdings at Old Oak Common to CLRL (Mr Berryman) Can we put up number 10, please? and there is a version which, although it has “draft” on, it is no longer draft but I will conﬁrm that Mr 9638. MR ELVIN: Sorry, that is my fault, Mr George is going to show you the agreed terms but Old Berryman. Oak Common is now resolved, fortunately. Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

790 committee on the crossrail bill: evidence

30 April 2008 The Petition of English Welsh & Scottish Railway Ltd

The following Petition against the Bill was read:

The Petition of English, Welsh and Scottish Railway Ltd.

MrCharlesGeorgeQC appeared on behalf of the Petitioner.

MessrsBirchamDysonBell appeared as Agent

9646. CHAIRMAN: Mr George? I think you are able to conﬁrm that it is not a draft document? 9647. MR GEORGE: My Lords, before I start I (Mr Berryman) I am able to conﬁrm that word wonder whether Mr Berryman could be recalled to “draft” can be safely removed from the document, deal with this matter of Old Oak Common? yes.

9648. MR ELVIN: He has instructed me to confirm. 9655. If one then goes on down to paragraph 7, if we put paragraph 7 on the screen, it reads: “the parties, acting reasonably, have agreed to work together in 9649. MR GEORGE: He has instructed you to 49 utmost good faith to conclude a legally binding confirm. agreement in accordance with these terms by 19 May 2008 or as soon as possible thereafter”. Are you 9650. MR ELVIN: The reason for the peculiarity is able to confirm that is the position, including that the Secretary of State is not agreeing to buy it, CLRL manuscript addition? is but Mr Berryman has authorised me to indicate to (Mr Berryman) Indeed I am. your Lordships it is agreed. 9656. The situation is I think that there is still a board 9651. CHAIRMAN: Is that satisfactory? (Mr meeting to be held by CLRL, but that would be a few George took instructions) days before 19 May and the hope of everyone is that will lead to the contract being exchanged? 9652. MR ELVIN: Apparently my word is not good (Mr Berryman) That is right. For the avoidance of enough! I am quite happy to recall Mr Berryman. I doubt, the matter has already been put to our board am not sure what diVerence it will make, but there and I think the purchase price and so on have been it is. agreed.

MrKeithBerryman, Recalled 9657. MR GEORGE: I am very grateful, Mr Examined byMrGeorge Berryman.

9653. MR GEORGE: My Lords, this will merely 9658. CHAIRMAN: Thank you, Mr Berryman. take a couple minutes. Could we please put up on the screen the Cross London Rail Link Limited The witness withdrew statement to the House of Lords Select Committee. Mr Berryman, you are one of the managing directors 9659. MR GEORGE: My Lords, as your Lordships of Cross London Rail Link Limited, is that right? will recall from last Tuesday, Day 21, on behalf of (Mr Berryman) That is correct, yes. English, Welsh and Scottish Railway, they are the largest UK operator of rail freight and also of certain 9654. This document sets out in paragraph 1 that chartered passenger trains. EWS are particularly there have been discussions regarding CLRL hard hit by the proposals in this Bill because there is a purchasing EWS’s leasehold interest in the Old Oak severe impact on its various goods yards on the Great Common depot site and in paragraph 2 that heads of Western approach to Paddington and it will lose a terms have been48 negotiated and agreed between the site which it recently acquired at Plumstead and lose parties with the intention that they will work towards its major remaining London maintenance and repair a formal exchange of the contract for the purchase by depot, Old Oak Common, which is to become the 19 May 2008. The document is marked “draft”, but Crossrail main depot and about which that sale

47 agreement has just been reached. This will all happen Proposed Route Map: Satines to Heathrow Terminal 5 (SCN- at a time when EWS has just lost its other London 20080430-048) depot. Temple Mills in the Lea Valley, which has 48 Crossrail P67, BAA Consultation Document—Air Track— Scotiish Rail Ltd.—Old Oak Common Depot, London 49 Borough of Hammersmith and Fulham (LINEWD-103 04A- Scotiish Rail Ltd.—Old Oak Common Depot, London Committee001) Ref: A57, CLRL Statement—English Welsh and Borough of Hammersmith and Fulham (SCN-20080430-049) Committee Ref: A57, CLRL Statement—English Welsh and Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd been acquired for CTRL trains. The taking of those have had sight of the drafts last week, it being still our two freight maintenance depots for two major new hope that the Promoters can commit to not altering passenger ventures, Crossrail and CTRL, illustrates these in a way that could be damaging to private very starkly how freight, for all the Department’s fine interest that can only fight their ground before your words about its importance, is required over and over Lordships’ Committee. again to play second fiddle to more glamorous passenger services. Nevertheless, we do not come 9662. What do we now seek, and there are three issues here today to argue the case for retaining Old Oak which I mention in no particular order of Common. We have seen the light, as it were, and the importance. First, there is the50 question of arbitration way things are going, and faced with the threat of concerning railway assets. If your Lordships would compulsory purchase, terms have been provisionally turn to clause 40 of the Bill, perhaps that could be put agreed and that will pass to Crossrail, nor are we here on the overhead projector. We can see the need for in any way to impede Crossrail. clause 40 which has got a very specific but important function51 of providing a mechanism for reconciling 9660. Indeed, as I shall explain shortly, the disputes in the case of certain railway assets. What we undertaking we seek on infrastructure provision is cannot, however, understand is the need for clause intended to ensure that Crossrail does achieve its 41(3). We are underwhelmed by the argument set anticipated opening date and does so with the out in the Department’s letter to Lord Berkeley of 24 passenger train paths conditionally allocated to it by April 2008, which was page 46 of the rail freight the ORR in his recent Access Option decision. EWS, bundle, which your Lordships had yesterday. That along with other railway interests, were at some said this: “The object is to ensure that neither the disadvantage before the Select Committee in another nominated undertaker nor the asset controller can place because of the uncertainty as to what form of act unreasonably in dealing with a problem relating regime was going to govern the construction and to the interaction of the Crossrail works with operation of Crossrail. Was it to be the, to us, overland or underground railway assets.” oVensive railway clauses or, on the other hand, was it to be an Access Option? If the latter, what were the 9663. That reasoning, as it seems to us, is entirely terms of that Access Option going to be? It was fallacious, for it assumes that the appointed therefore probably inevitable that relatively few arbitrator (who is referred to in clause 43) would act conclusions were reached by the Select Committee in unreasonably were it not for clause 41(3). The whole the other place on the issues which had been raised, in purpose of having an arbitration by a qualified particular, for instance, with regard to capacity and person is to provide a fair and reasonable result. compensation. Speaking at the report stage of the Bill There is simply no need, we say, for clause 41(3) in the other place, on 13 December 2007 at column giving the Secretary of State the power, on request or 559 one of the members of the Select Committee, Sir otherwise, (in other words, either when requested or Peter Soulsby, said this: “Freight was one of the on his own initiative) to direct the arbitrator as to issues to which the Select Committee drew specific precisely what result the arbitration is to achieve. attention in its report. We said we expected there to be continuing discussions about the impact of 9664. The proof of the pudding, as it were, lies in the Crossrail on freight, both east and west of the capital, precedent for clause 40, which was section 37 of the and we hoped it would be given further consideration Channel Tunnel Rail Link Act 1996. If I could ask so that when the Bill is debated in the other place your Lordships to turn to tab 28 in the bundle of suYcient reassurance can be given that the vital EWS exhibits and ask, please, that section 37 of the interests of freight will be protected as Crossrail Channel Tunnel Rail Link Act be put on the screen, comes into operation”. your Lordships will straightaway see that section 37 has exactly the same section heading as does clause 40—“Duty to Co-operate”—and that it then 9661. Matters have now moved on and EWS contains five clauses which are in virtually identical welcomes wholeheartedly the promised removal of terms to the sub-clauses in clause 40 of the Crossrail the railway clauses and were pleased that the Bill. Department feels able to accept an Access Option which gives them a little less than they ideally have 9665. In particular, your Lordships will note section wanted. It is gratifying to find that our own 37 sub-section 3 in the Channel Tunnel Rail Link Act suggestion that the wording in the Olympics Bill which provides: “The terms of an agreement under should be followed, for the duty on the ORR has subsection (1) or (2) above shall be such as the indeed now been adopted. So far so good. Though we regret the precedent that has now been set of tabling 50 20080430-050) the revised railway clauses of the Public Bill 51 Committee stage rather than now, we are grateful to Crossrail20080430-051) Bill, Session 2007–08, HL Bill 14, Clause 40 (SCN- Crossrail Bill, Session 2007–08, HL Bill 14, Clause 41(3) (SCN- Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd nominated undertaker as the operator of the asset to clauses 40 and 41. I just wonder if my learned may agree or, in default of agreement, as may be friend could assist. determined by arbitration.” What is wholly lacking from the Channel Tunnel Rail Link Act is any52 9671. CHAIRMAN: I thought that you were going equivalent of clause 41(3) which has crept into the to deal with this group of clauses anyway. Bill which is before your Lordships. All there was in the Channel Tunnel Rail Link Act was section 43. 9672. MR ELVIN: I am, but I really would like to If I could take your Lordships on to that, that is a know where Mr George says his Petitioner is entitled wholly neutral, normal provision, headed to raise this matter. “Arbitration”. “Where under this Part of this Act any diVerence is to be referred to arbitration, the 9673. CHAIRMAN: I have raised 41(3) myself. diVerence shall be referred to, and settled by, a single arbitrator . . . ”, and the Secretary of State was given 9674. MR ELVIN: Indeed. the power to make provision about procedure but not about the result of the arbitration. 9675. CHAIRMAN: Sooner or later we will have to have a statement, I think, from the Promoters on it. 9666. Now the CTRL has been built, we are unaware that that provision contained in clause 37 with its 9676. MR ELVIN: Indeed. arbitration clause and with section 43 gave rise to any problems whatever, and entirely lacking in anything 9677. MR GEORGE: My Lord, it is very simple; it that we have seen is any explanation as to how clause is paragraph 76, the first sentence: “Your Petitioners 41(3) has crept in, unannounced as it were, to the are concerned about the existence of clauses 22 to 45 present Bill. We would invite your Lordships to show in the Bill.” We later set out the provisions which it the exit fairly fast. Clause 40 can stay. If Mr Elvin caused us most concern. Fortunately, the ones which says that they require an additional provision dealing caused us most concern you are now volunteering to with the form of the arbitration then that could come withdraw, but one is left with this one. It is only a very forward without any problem, but then there is a small provision but we raise it, and it is plainly precedent for it in the provision to which I referred covered by our Petition. your Lordships in the CTRL Bill. 9678. MR ELVIN: I hear what Mr George says. I do 9667. It rather sounded yesterday as if Mr Elvin was not follow him at all because the letter that was struggling to conceive why clause 40 itself was needed written to us by EWS before today sets out all the at all, but I emphasise that we are not disputing clauses they wanted amended, and it did not include clause 40; what we hope is that clause 41(3) can go, as these clauses. I do not understand them to be it surely ought to go. objecting to other clauses that they have not mentioned specifically, but there we are. 9668. MR ELVIN: I am sorry to interrupt my 9679. MR GEORGE: That is all I want to say about learned friend. I have had some diYculty, having just that point. I hope the point seems pretty clear. had the bundle of exhibits at a fairly late stage, in finding, in the Petitioner’s Petition, any reference to 9680. CHAIRMAN: It is clearly before the these provisions. I am sorry to take a procedural Committee anyway. point, but the EWS Petition, in a very careful way, goes clause-by-clause through the provisions that are objected to. 9681. MR GEORGE: The second issue we raise concerns compensation for financial loss during the construction of Crossrail. Can I make plain two 9669. CHAIRMAN: There was another Petition points at the outset? First, this has nothing whatever that raised this question. to do with compensation for the loss of land and the delights of Lands Tribunal disputes with which the 9670. MR ELVIN: Indeed, it was the MEP’s Lord Chairman will be only too familiar from the Petition last week that raised it and she indicated she past; this is a diVerent form of compensation. was not pursuing the point through her Agent. If you Secondly, it is losses during construction—we are not look at this Petitioner’s Petition, it goes carefully concerned with losses incurred by railway interests through paragraph 76 onwards, and although it says during the operation of Crossrail. “We are concerned about the existence of clauses 22 to 45” there is then no specific issue raised with regard 9682. We are concerned about the financial loss 52 which will be incurred by operating companies Clause 43 (SCN-20080430-051) caused by the work, and, in particular, by temporary Committee Ref: A57, Channel Tunnel Rail Link Act 1996, Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

committee on the crossrail bill: evidence 793

30 April 2008 The Petition of English Welsh & Scottish Railway Ltd speed restrictions and weight restrictions and gauge the definition of relevant costs, and the specific works restrictions which will be imposed during the and train operator. It is unnecessary for your construction of Crossrail—necessary measures but Lordships to familiarise yourselves overmuch with measures for which there will be no compensation the particular mechanism here, but I can assure your payable to EWS or other railway operators unless Lordships that it was included at the request of your Lordships’ House intervenes. railway operators to make sure that they were fully compensated for their losses which were likely to be 9683. My second witness, Mr Nigel Oatway, has incurred as a result of the construction of the East unparalleled experience of the operation of what is London Line extension. known as the Network Code, with which I am sure your Lordships are becoming familiar and with 9686. What we are seeking is that the Promoters which it would be unfair to expect your Lordships to bring forward measures to ensure that there are not have total familiarity. That is the financial uncompensated losses suVered by railway operators, mechanism that generally operates between railway including ourselves. The detailed background to this operators. As he will explain, the standard matter is set out in EWS-31, but I am going to leave procedures provide for certain circumstances in that to Mr Oatway to explain a little bit later this which no compensation is payable. But those afternoon or tomorrow. That is the principal matter procedures were never intended to address the we raise under this heading of compensation for construction of a new railway and railway work of financial loss. the sort which will be involved in the construction of Crossrail. It is very seldom, indeed, as the Committee 9687. There is also an issue concerning what is known will be aware, that we have new railways in this as Condition G9 of the Network Code and details of country, and one would expect there to be special that are contained in EWS-27. Again, I will leave it to provision made to ensure that all losses lie with the Mr Oatway to explain the detail of that point. I Promoters rather than some of them being picked up believe there is very little between ourselves and the by the railway operators. Promoters on that matter and I am hopeful that some reassuring words from Mr Elvin at an appropriate 9684. In particular, we understood that it was the moment may satisfy Mr Oatway on that particular philosophy of the Promoters to have a compensation score. That is the second heading which is the system of “no gain, no loss” and therefore if we did question of compensation for losses incurred, suVer losses we should be compensated. In most financial loss during construction. recent examples of the construction of new lines special provision has been made so that the Promoter 9688. The third matter is the matter upon which I of the new railway works pays full compensation— cross-examined on day 21 and the matter upon which no more, no less—for loss in these circumstances. the Committee heard some evidence from others That is what happened in connection with the CTRL yesterday and that is the question of the freight and it is what happened in connection with the East infrastructure works. The arguments here are London Line. becoming familiar and your Lordships will recall Mr Elvin’s somewhat polemical submission to your 9685. If I could ask for there to be put on the screen Lordships delivered yesterday afternoon. At the time EWS 33, your Lordships heard earlier today a I noticed that he categorised the stance of my clients mention of the East London Line extension. It was as ridiculous, which is strong language indeed. I leave constructed not under a Bill but under delegated aside whether that be or not be oVensive. My witness, legislation, namely a Transport & Works Order, Mr Smith, will explain precisely what he is seeking promoted by London Underground. Its construction and why, and will probably be cross-examined on might well cause losses to railway operators and rather the same lines as several witnesses from the Rail Freight Group were cross-examined yesterday. therefore the Transport & Works Order, which is the53 equivalent of the Bill for a railway work to go through Parliament, contains in Article 19 of the 9689. First, I identify to the Committee exactly what Order, a provision, which is page 4 of our bundle. it is that we are seeking. The undertaking54 which we The first page of EWS 33 introduces what it is and at would seek appears in tab 26. It is as well that your page 4, Article 19, one has a provision governing the Lordships know exactly what we are seeking. If tab payment of compensation. That is contained within 26 could go up on the screen. It is that before Schedule 11, paragraph 19, and then that takes us Crossrail services be allowed to run on the Great back to, on page 2, clause 1 of Schedule 11, which has Western Main Line, the Promoter be required to

53 construct the following works set out in Schedule 1 to Line Extension) (No. 2) Order 2001 (SI 2001/3682) (SCN- 54 20080430-053 and-054) infrastructure works (SCN-20080430-055) Committee Ref: A57, The London Underground (East London Committee Ref: A57, Undetaking in relation to key railway Processed: 14-08-2008 19:48:00 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd

55 the Crossrail Bill and then the numbered works are for everyone else. Is that not right? That is, if the given and also the track modiﬁcation that the situation were to be reached”. Mr Berryman, “Yes, Environmental Statement states at paragraph 9.21.8 that is correct, broadly speaking “. will be undertaken. In due course Mr Smith will explain those particular works. 9695. If I could then ask that there be put up paragraph 8201 at page 29, which was dealing with 9690. I just want to correct, if I may, though, ﬁve the answer to a question from Lord Young to Mr what appear to us to be either misrepresentations or Berryman, the question at the end of 8201: “I am now misunderstandings, to use kinder language, in Mr trying to address Mr George’s concerns who said, Elvin’s submission to your Lordships yesterday well, if you did not, are there any circumstances afternoon. First of all, EWS is not seeking in any way where EWS would be disadvantaged as a result of to “ . . . override the industry regulator . . . ”, those 56 were the words he used in paragraph 30 of his that?” The answer, “Yes, my Lord, if we did not do submission yesterday. Not content with that, he some of the works it is possible that EWS and/or the repeated it in paragraph 33 and in paragraph 34, sub- freight operators would be disadvantaged”. He section 5 “It was entirely for the ORR whether he, the went on then to say why he thought the reliance could ORR, sought guarantees of particular infrastructure be placed on the ORR, but he was accepting that provision. He chose not to do so and EWS accepts there could be a circumstance in which freight that the ORR’s output measure is a useful control”, operators would be disadvantaged. 57 but what we say is that if the Promoters give the undertakings we seek, the output measure will still be 9696. The third passage is 8236, please, at page 34 in needed. We are seeking additionality and those answer to a question from a Lord Snape. I have just undertakings will not in any way interfere with the made the point in 8235 about the danger that freight ORR’s jurisdiction. paths be taken away, Lord Snape says: “That, Mr Berryman, if I can turn to you, is not an unreasonable 9691. CHAIRMAN: Those works are inputs, are fear surely? Given your experience of these projects, they not? is not the temptation likely to be in the event of any budgetary overrun let us chop something to do with 9692. MR GEORGE: They are at present inputs to the freight side because it is neither as apparent nor as his outputs and what we say is that they will simply controversial as reducing something on the passenger achieve certainty at an earlier stage for everyone, but side?” Mr Berryman, “That certainly was my no question of us seeking to override the ORR’s experience on the West Coast Mainline”. jurisdiction.

9693. Secondly, it is Mr Elvin’s case that if Crossrail 9697. MR ELVIN: I am afraid, Mr George is cannot meet the output measure they will necessarily looking at the uncorrected transcript, there was a lose their track access option rights. What is “not” which is fairly critical, omitted from Mr significant about the ORR’s wording in the final Berryman’s answer. sentence of paragraph 80 of his decision is that what he said is: “Crossrail rights could be lost from the 9698. LORD SNAPE: I thought that is what he said. track access option”. He did not say they would be That is my recall of the incident. lost. This is because the ORR might decide that Crossrail should keep all its rights and either operate at a lower public performance measure than 92 per 9699. MR GEORGE: I am quite positive, my cent or Crossrail might be enabled to achieve 92 per recollection of what he said was that certainly was my cent PPM by a reduction in the paths allowed to experience on the West Coast Main Line and that is other freight and passenger operators beneath that why Lord Snape said, “We have all learnt a few assumed in the track access option. lessons from that”. If corrections are made to the transcript, it is always my understanding that other 9694. That this is possible appears from three parties were consulted in advance. I was given no answers to questions given by Mr Berryman on day notification of this correction and, in any submission, 21. I am going to ask if those could be put on the it is simply a miscorrection. I am glad to say that I screen. The first is paragraph 8187. One can see there think the Tribunal of your Lordships— the question which I asked him at 8187, “If, at the end 55 of the day, the 92 PPM figure cannot be achieved then QC; Mr Berryman] the rail regulator will have to make a decision as to 56 Paraof Norwood 8187, Uncorrected Green; MrBerryman] Transcript, 22 April 2008 [Mr George whether actually he cuts down further on the paths 57 for Crossrail or whether he cuts down on the paths ParaMr Berryman] 8201, Uncorrected Transcript, 22 April 2008 [Lord Young Para 8236, Uncorrected Transcript, 22 April 2008 [Lord Snape; Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9700. MR ELVIN: If Mr George wants to play public would rather be expecting more maintenance games I will recall Mr Berryman and ask him what his rather than less maintenance. view is. The reality is we are not playing with the transcript, as Mr George wishes to do, it is a question 9704. So far as the other matter which is mentioned, of what Mr Berryman thinks and I will recall Mr which is move rolling stock to 60,000 miles per Berryman if we are going to get into that territory. casualty, casualty is not a personal injury, it is an incident which causes a perturbation and delays on 9701. MR GEORGE: Your Lordships will have the railway. It may be possible to achieve a higher their own recollection. What is quite plain from that miles per such casualty incident, it may not be, no- is if we take simply the first two of those examples, I one knows, but what I simply draw to your Lordships think the first part of the answer also, regardless of attention is that there are two pretty heroic that correction to Lord Snape’s question in the assumptions here in the planning. If neither of those corrected version, shows that there is a possibility are achieved or neither to the full amount, then you that what I am asserting might happen could happen. are well short of the 90 PPM. Mr Smith cannot say We will simply ask your Lordships to bear that in for certain that those will not be achieved but, as one mind. of your Lordships remarked last Tuesday, one always has to look at worst cases and just consider what happens if as soon as your Lordships do that 9702. Thirdly, Mr Elvin expressed great confidence you will see straightaway there is scope for those two that the current figure of 71 per cent PPM will be assumptions not being achieved in quite the way that subject to considerable improvement, that was his is presently hoped for. Those are matters which are paragraph 34. For that he relies on what Network going to be completely beyond Crossrail’s own Rail’s Mr Burns told the ORR, but we need58 to look control just as they are completely beyond EWS’s or very carefully at what Mr Burns said and I would ask the freight’s own control. We simply do not know there be put on the screen, please, paragraph 25 from what the situation will be. If that happens, if one Mr Elvin’s submission of yesterday. Your cannot make those savings, if one cannot make the Lordships who were here yesterday will recall this system work at the 92 PPM, then someone is going to passage. Mr Burns told the regulator, “I think what be squeezed. Our fear is that it is going to be rail we have got is a very good base position. It is not freight which will be squeezed and that it makes it the catastrophic, that is the 71. Richard described what more important to ensure that the infrastructure happened if you just moved two of those variables to works are in at the earliest opportunity. reasonable positions of expectation, one of them being where maintenance might be 40 per cent 9705. Our fourth concern is Mr Elvin’s claim in improvement on currently. I know as well as you that paragraph 28 of his submission that the 92 per cent frankly we had a very poor position in 2006. It does emanated from CLRL as if perhaps a diVerent, even not seem unreasonable given the things that we are lower figure might possibly be acceptable, but I am going to do to expect that to improve by 40 per cent told, and my witnesses will be able to confirm, that in if you move rolling stock to 60, 000 miles per July 2007 the Government’s high-level output casualty. If those two variables moved up in the specification set a target PPM of 92.6 per cent PPM model, they give you a figure very, very close to 90 per to be achieved generally by 2014, and your Lordships cent. That is very encouraging”, and he thought that saw this morning59 when Network Rail were giving reasonable. evidence that they are getting near the 90 now, so this is not, in other words, an exceptionally high standard 9703. Can I ask your Lordships to look to the to be seeking. It is an appropriate standard to be reasoning. The hypothesis being put forward is that seeking, but it shows how woeful the modelling is at delays to other rail traYc being caused by the present time in showing how one is ever going to maintenance can be reduced by 40 per cent. Now that achieve that aim. is a huge saving to expect to achieve by 2017 to cater for a circumstance in which there is going to be more 9706. My fifth point is that at paragraph 47(1) traYc on the railway, not least the growing freight of yesterday and throughout the cross-examination which your Lordships heard yesterday and where the yesterday of Mr Garratt by Mr Taylor, there was the Crossrail service is itself going to involve a more suggestion that, since the infrastructure works in the intense use of the railway lines. Your Lordships may Bill have not yet been designed in detail, there was wonder whether it is prudent to plan on a basis that nothing to which Crossrail could be committed at there is going to be a reduction by 40 per cent of the this stage. As I made plain, I hope, on Day 21 at time spent on maintenance. One may feel that the paragraph 8233, each of the works in the Bill has its

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60 own description, but leaves to the Promoter scope for which the Promoters are now relying on are simply flexibility within the limits of deviation of that unreal. particular work. The same goes for the precise depth of the top of the tunnel which, as you will recall from Mr Berryman on Day 21, there is some scope 9709. Perhaps I can say this, finally, to your for adjusting the line of the tunnel in order to pass Lordships: that, in the case of the works in this Bill, beneath one particular sewer which, it was previously Parliament stands in the shoes of the64 local planning thought, would be aVected. That the detailed design authority and is being asked to grant planning is not a problem with the undertaking is apparent permission and CPO powers. That is what clause from the case of the Acton dive-under. If the 10(1) of the Bill expressly provides. It says that you are granting planning permission for the works in the Committee, in their copy of the Bill, would61 look at Schedule 1, Works 3/17 and 3/17A, you will see that Bill and that includes the five additional works for the description of that work for the Acton dive-under which we are asking for a commitment that they be falls short of a detailed engineering design. All the built. If I may give a very simple example, which I Bill does, and it is page 59 of the Bill, is to set out an gave to the Select Committee in the other place, your explanation in words with certain distances of the Lordships may like to consider the position of a particular work. The Bill sets parameters in terms of superstore developer, or the developer of a proposed lines and situations shown on the deposited plans, industrial estate, where the planning application but to understand that, could I take your Lordships either includes provision for access improvements, to clause 1 of the Bill, and it is clause 1(2)(a) and (b) say, a new roundabout on the main highway to which your Lordships may not have had to look at ensure that traYc to and from the development can previously, which says that “the scheduled works be safely accommodated and without causing delays shall be constructed”— to other traYc, or else during post-application discussions it becomes apparent that the new roundabout is needed if the superstore or the 9707. CHAIRMAN: We have. industrial estate is to function satisfactorily. It is inconceivable that the local planning authority 9708. MR GEORGE:—“in the lines or situations would permit the superstore or industrial estate shown on the deposited plans”,62 so the works are, as simply on the assurance of the developer that in due it were, given their own situation, they are given their course he would build a roundabout or something own outward parameters and limits of deviation, but comparable at an appropriate time. Rather, they within them there is flexibility. In the case of the would impose a condition on the planning Acton dive-under, the Promoters found no diYculty application—it would not require a legal in the other place in giving an undertaking. If I could agreement—but a condition on the planning ask your Lordships to go to EWS29 and we put that application that the superstore or industrial estate up on the screen, we see there that they were adding was not to open for trading unless, or until, the new to the register the second item, a commitment63 to roundabout had been built, and that is all that we are construct the dive-under at Acton Yard, as seeking. Of course, Parliament is much grander, referenced in paragraph 15098 of the transcript, and much more responsible than local planning that did not include a detailed design. If the authorities and that is why schemes like Crossrail Promoters were able to commit to the Acton Yard come to Parliament rather than to a lower tier of the dive-under, similarly they are perfectly able to planning system, but the fundamental principle commit to the other five works on the Great Western remains the same, and all we are seeking is that you Line which we have specified in EWS24. The require the construction of the most important of commitment can be in terms of the work number or, these works, which everyone seems to agree are in the case of the vital new centre track at Southall necessary, and require that they should be built so as which does not have a work number because it will be to avoid conflict between passenger and freight built under existing powers, I presume, by reference movements. They are necessary if Crossrail is to to the paragraph in the Environmental Statement operate safely and at the sort of PPM measure which which expressly states that it will be built. Indeed, the is presently contemplated. We all here have to assume giving of the Acton dive-under undertaking really that the construction of Crossrail is in the public proves that the diYculties and policy considerations interest; the principle of the Bill is unchallengeable. It 60 follows that everything possible ought to be done to QC] ensure that Crossrail will be up and running by 2017 61 ParaScheduled 8233, works Uncorrected (SCN-20080430-061) Transcript, 22 April 2008 [Mr George with the minimum delays and with the minimum of 62 changed specifications on the way. This morning, Crossrail20080430-062) Bill, Session 2007-08, HL Bill 14, Schedule 1— 63 when Network Rail were appearing, you had an CrossrailBell to Department Bill, Session for 2007-08, Transport, HL Bill Crossrail—Register 14, Clause 1 (SCN- of 64 Undertakings, 21 January 2008 (LINEWD-103 05A-018) 20080430-063 to -064) Committee Ref: A57, Correspondence from Bircham Dyson Crossrail Bill, Session 2007-08, HL Bill 14, Clause 10 (SCN- Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd interesting example of some of the pressures that 9717. MR GEORGE: I can say straightaway that it there are going to be over the next few years to make was raised in the other place. It went unmentioned, changes and some of the pressures may be to though I stand to be corrected, but, as far as I recall, eliminate costs or to delay the incurring of costs. it went entirely unmentioned in the Committee’s What we would urge upon your Lordships though is Report. No, it is not clause 41. The compensation that the incorporation of these additional five works, issue was raised in the other place and the issue of essential works in the way we have suggested, is clause 41 was not raised, but we raised a general point thoroughly desirable and could only work to achieve about the railway clauses, but, frankly, one could not the opening of Crossrail at that 2017 opening date. get anywhere on that because no one knew what was going to happen and those matters, certainly as far as 9710. CHAIRMAN: You are picking up the the Committee were concerned, were left over to see planning regime in Schedule 7. I think one of the what happened on the access options. interesting omissions, unless I have misread this, is that there is no time limit which would be the normal 9718. CHAIRMAN: Did you raise the list of works? accompaniment to a planning permission, when it should start. 9719. MR GEORGE: We were rather bolder; we asked for the entire works which were in Schedule 1, 9711. MR GEORGE: There nearly always is— the entire railway freight works which were in Schedule 1, and again we got a concession from the 9712. CHAIRMAN: Well, I just cannot find it. Promoters in respect of the Acton dive-under and, as far as I remember, and again I stand to be corrected, I do not think that matter was specifically addressed 9713. MR GEORGE:—a five- or a ten-year period. in the Report, but, if it was, Mr Elvin will draw your My Lord, it is clause 11(1), “a condition of the Lordships’ attention to it, but again at that stage the planning permission deemed . . . to be granted . . . modelling was at a very, very, very preliminary stage. that the development must be begun not later than We were nowhere near knowing 71 PPM or 92 PPM the end of ten years”, so in an ordinary planning or anything like that, so I think the Committee might permission it is five years. It always used to be five have regarded it simply as premature to reach any and it has now come down to three. Crossrail is a conclusions on that sort of matter at that stage. special case and, therefore, they are given ten years. We do not quibble with that ten years, but that is an example here, as I say, where you have got a specially MrGrahamSmith, Sworn tailored regime which you can make, and indeed we Examined byMrGeorge say, with all respect, the Committee ought to require the sort of matters which we are seeking. As I say, I 9720. MR GEORGE: Could you please give your apologise for the lengthy opening and I can assure name to the Lordships? your Lordships that it will ensure that my closing will (Mr Smith) Yes. I am Graham Ernie Smith MBE be considerably shorter. Perhaps I could then and the Planning Director of English, Welsh and proceed to call Mr Smith. Scottish Railway, EWS, a post I have held for 12 years. I have worked in the railway industry for 29 9714. LORD BROOKE OF ALVERTHORPE: My years and for 25 of those I have been working in the Lord Chairman, Mr George has raised three separate rail freight sector within the rail freight industry. issues with us. On the first one on compensation, presumably we are not taking evidence on that. 9721. Could you put your microphone around, twist it a little bit towards you? Could you try and speak 9715. MR GEORGE: On the very first issue, which up. Are you Chairman of the Rail Freight Operators was 41(3), Mr Oatway will have to read two sentences Association? on it. So far as the more complicated matter of (Mr Smith) I am. compensation is concerned, Mr Oatway, who is the expert on that, will deal with that in his evidence and 9722. What is that body? Mr Smith is simply giving evidence in relation to the (Mr Smith) That is the association of the major UK third matter, which is the infrastructure. rail freight operators. It includes a sales freight liner, direct rail services and GB rail freight and the other 9716. LORD BROOKE OF ALVERTHORPE: On posts that I hold includes being a director of the that then, when we get to it, could you refresh my European Rail Freight Association, Director of the memory as to whether that issue was raised in the Rail Freight Group. I am also a member of the other place and what the response was? Freight Transport Association rail freight’s council. Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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9723. What are your responsibilities within EWS? Line as far as South Wales. All of these freight (Mr Smith) The relationship with the Department services will be aVected by the Crossrail services for Transport, the OYce of Rail Regulation, because our services and Crossrail services are Transport for London, the strategic and contractual operating both on the Great Western and Great relationship with Network Rail and also leading the Eastern Main Lines. If we go to exhibit EWS 2 we can company’s development in mainland Europe. see the London area in greater detail.

9724. I think EWS supports the principle of 9729. Just before you move on, if we go back to EWS Crossrail, is that right? 1, why is it that when you get to London the red lines (Mr Smith) We support the principle of Crossrail do not become thicker? and of the development of London’s rail (Mr Smith) The thickness represents the tonnage infrastructure. moving on each route and if in London we expanded them to represent the millions of tonnes, London 9725. You gave evidence, I think, on two occasions in would be a single red blob. That clearly may or may the other place? not be the case tomorrow in the local elections but for (Mr Smith) I did, on 11 July 2006 and on 27 the purpose of this preparation this is merely to show February 2007. the level of activity on the66 routes concerned. 9730. You were taking us to EWS 2 if we could have 9726. Since the Bill was introduced what has been the on the screen, thank you. approach of EWS? (Mr Smith) This is the same principle as EWS 1, with (Mr Smith) We have been actively engaged in red lines showing where rail freight operations exist discussions with the Promoters in order to obtain on rail routes in and around London. What we need some comfort as regards the likely eVect of Crossrail to recognise is London is a major centre of and rail freight. Some of our concerns have now been consumption for freight services and it is also a major addressed through certain commitments the part of the railway network for through services Promoter has now oVered. As the Committee has passing from west to east and vice versa. The trains heard, the Promoter has oVered an undertaking in that we move on the London rail network carry relation to the proposals of our depot at Old Oak construction materials, waste, coal, oil, motor Common. vehicles as well as freight from mainland Europe. The Great Western Main Line is particularly critical for 9727. Could you again keep your voice up, please, us as it is the primary route linking Somerset and and very briefly explain the activities of EWS and south Wales with London and the Home Counties. how they interface with Crossrail? Without use of the Great Western Main Line we (Mr Smith) EWS is the UK’s largest rail freight would not be able to bring freight materials into operator. We also operate freight trains through the London by rail. Channel Tunnel connecting to our open access operations in France. We haul over 90 million tonnes 9731. Those important freight depots are shown of rail freight each year, including more than 20 marked on that plan and when we come to look at the million tonnes of construction materials. We have works you are seeking they particularly relate to invested over 700 million in the rail freight industry places like Langley, Iver, West Drayton and Hanwell through our existence and have made rail freight a Bridge, do they not? success story. We operate across the whole of the (Mr Smith) They do. country and I think if we now put up exhibit 1, we can see just how far our services range and how a lot of 67 65 9732. Yesterday the Committee heard a great deal on them focus on London. freight growth. If we could put up EWS 3, we could probably take this fairly fast. 9728. The exhibit EWS 1 is now on the screen. (Mr Smith) Yes, this is the actual freight activity Could you briefly comment on it? measured in million tonne kilometres since the low (Mr Smith) This shows services operating on the point in 1994-95 and the forecast growth as contained aVected routes, that is the routes between in the Network Rail edited freight route utilisation Maidenhead and Heathrow to Shenfield and Abbey strategy endorsed by the Government forecast Wood, and how our services that operate on those produced by the industry, the rail freight group and routes radiate throughout the United Kingdom on the rail freight operators association which we expect the West Coast Main Line and Midland Main Line to play a full part in. from Leicestershire and the Great Western Main 66 65 (LINEWD-103 05-005) London with relevant terminal locations (LINEWD-103 05- 67 004) Committee(LINEWD-103 Ref:A57, 05-006) EWS locations aVected by Crossrail Committee Ref:A57, Current EWS freight flows into/through Committee Ref: A57, UK rail freight volume growth Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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9733. Those, I think, are figures which have been demand rather than in anticipation of demand. agreed with the Government, have they not, for rail Trains may not run every day or every week, but it freight growth? Is that right? does give you an idea of what needs to be threaded (Mr Smith) Yes, the Government has endorsed through the Crossrail and other passenger services those figures. for freight to be continued to be carried by rail to the same extent as it is now. 9734. Yesterday we heard about national freight policies. Could you tell us what are the policies in 9738. As far as your services on the Great Eastern London for freight? Main Line, please? (Mr Smith) The Mayor of London supports the rail (Mr Smith) The Great Eastern Main Line is less freight industry and his transport strategy specifically important for EWS, but we operate round the clock seeks to foster a progressive shift of freight from road on that line as well, using up to 36 train paths and the to more sustainable modes like rail. This was Abbey Wood line, the other part of the Crossrail Bill, confirmed in the Mayor’s London Rail Freight again around the clock service but only 11 paths we Strategy published in November 2007. need there. It is a much lower level of operation than the Great Eastern or particularly the Great Western. 9735. Let us now then move on to the question of network capacity and I think, first of all, you want to 9739. Mr Smith, could I stop you there. On Day 21 at deal with existing freight movements. 8173 Mr Berryman said this: “I ought to mention at (Mr Smith) Just to explain how our existing freight this point that not all the existing freight paths are movements work, we run on Network Rail’s used by a very, very wide margin. I think only around network. We have two track access agreements that 50 per cent are actually used now so there is already provide us with access rights to that network and a 100 per cent growth capability”. Do you have any further agreement that enables us to move comment on that matter? engineering trains for Network Rail and these trains (Mr Smith) I start from the point that we operate our carry materials for the maintenance renewal and trains in response to customer demand. Therefore, repair of the network. Our access agreements have we will have a path each day, but a factory may not various periods to run with the longest one not produce goods each day that need to be moved. expiring until December 2015. We expect that our There is also a number of freight paths that exist access agreements will be extended beyond 2015 and should our trains be diverted because of engineering such an extension was also assumed by the ORR in work and because we run a lot of trains at night it is its consideration of the Promoters’ application for quite likely those trains will be diverted because of the Crossrail track Access Option. that engineering work. TraYc is seasonal as well. We will be moving consumer goods much more during 9736. What freight services do you operate at present the autumn in the run-up to Christmas than we on the Great Western Main Line? would, say, after Christmas. Aggregates demand (Mr Smith) We are currently operating 24 hours a tends to be high during the spring/summer months day, seven days a week, up to 85 train paths a day that for building materials, construction works. are available for use for our customers. Use will vary Elsewhere in the country, for example, coal demand from day to day. Freight operates in— is much stronger in the winter. It is just a nature of freight operations by whatever mode that they do not 9737. Just pause for a second, let us put up EWS 21, run to a published timetable, they run in response to specific agreements and arrangements we have with and the Committee will be relieved to hear68 that exhibits 4 to 20 are no longer relevant, they are individual customers. overtaken by the Old Oak Common matter, so we are making a lot of progress, we are on to EWS 21. 9740. Is it your concern to ensure that the (Mr Smith) This exhibit shows the freight trains introduction of Crossrail services does not travel along the Great Western Main Line in one disadvantage your rail freight and the growth of rail direction. Each line on the exhibit corresponds to one freight services? freight train. The colours indicate what the trains are (Mr Smith) We want a solution that enables the carrying, the key is down bottom and the lengths freight services, the Crossrail services and the other indicate their origins and destinations. On the left is passenger services to be accommodated on all the the days on which the trains run. It demonstrates that routes in question. the freight timetable is not like passenger timetable. We run our trains to meet our customers’ 9741. Can we then move on to the capacity requirements so we are running in response to enhancements in the Bill and we are going to come to 68 a number of exhibits dealing with this matter. 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(Mr Smith) I think the only way, to follow on from there is a note at the end of the table dealing with it, my previous statement, that we can ensure that and in, I think, just one case a “no” appears. We can Crossrail services, other passenger services and rail see that so far as most of them are concerned, they freight can co-exist in the future is through the were in the timetabling, and so far as the five, in eVect, provision of additional infrastructure to cope with of which you are seeking an undertaking, they are all the increased demand for all kinds of rail activity. within the category which has been timetabled. This is a high level problem that, as a rail industry, we (Mr Smith) That is correct. are facing with growth in passenger numbers, the highest for 50 years, the highest level of freight 9746. Can we turn to the position about the ORR? activity at the moment we have had for 30 years and (Mr Smith) Yes. During the Bill’s passage through expectations of growth supported and endorsed by the House of Commons, it was made very clear that government in all sectors. Providing the appropriate the Promoter was not prepared to commit to infrastructure is the way that growth can be Parliament to undertake the infrastructure works for accommodated. which powers are being sought. The Promoter did oVer one commitment, and that was to build the new 9742. Can you just tell the Committee briefly about dive-under at Acton. The Promoter suggested that the Acton Yard dive-under? the appropriate mechanism for addressing (Mr Smith) The Acton Yard dive-under is infrastructure requirements would be through the important. It will be used by Crossrail services imposition of conditions by the OYce of the Rail travelling to London that will eVectively leave the Regulator, upon the grant of any access option to the surface and dive underneath a line which will enable Promoter. When we first appeared in the House of freight trains leaving Acton Yard and travelling away Commons, the Promoter’s counsel, Nathalie Lieven from London both to operate without conflict. We QC, told the Committee (I am quoting from the were very pleased when the Promoter gave a transcript here): “If Petitioners, through the commitment to provide the Acton Yard dive-under; Crossrail Bill, remain concerned about access option without it, it would have been a major conflict on that issues after it has been considered by the ORR then part of the Great Western Main Line. they will have the opportunity to raise that in the House of Lords Committee. I do, therefore, say that The Committee suspended from it would be both premature and probably pointless to 4.15 pm to 4.26 pm for a Division in the House spend time on that at this stage.”

9743. CHAIRMAN: Mr George, shall we see if we 9747. That was Day 51, 11 July 2006, paragraph can ﬁnish Mr Smith’s evidence-in-chief this 14651. afternoon? (Mr Smith) It seems to me that the Promoter’s message at that time was this: these infrastructure

9744. MR GEORGE:69 Yes, my Lord. If we could go discussions are for another day. The Committee will straight, then, to exhibit 22, that, I think, lifts the appreciate the unfinished nature of these discussions, totality of the freight works which are included in and this was reflected in the final report of the House Schedule 1 of the Bill. Is that right? of Commons Select Committee at paragraph 141, (Mr Smith) In Schedule 1 of the Bill, correct, and, which says: “We look to the Committee in the House also, in the Environmental Statement which assessed of Lords to ensure that the access option and any the eVects of Crossrail on the basis that these other remaining issues relating to the freight industry enhancements to the rail network would be are adequately evaluated.” constructed. Not only has provision been made by the Promoter in both the Bill and the Environmental 9748. We come on to the ORR’s decision. Statement for infrastructure works, the timetabling (Mr Smith) As the Committee knows, the ORR has work has also assumed that nearly all of these now decided to approve the Crossrail track access capacity enhancements will be constructed by the option. The ORR’s approach was not to make the time Crossrail services become operational. grant of the Crossrail access option conditional upon the construction of specific enhancements to the rail 9745. Just pausing there: their Lordships will be able network. Instead, its approach was to focus upon to see in the right-hand column there that you have outputs—that is, the number of train paths the explained the position as to whether they were network ought to be able to accommodate when included in the timetable work, and in the case of Crossrail services became operational. We most of them there is a straight “yes”; in the case of understand why the ORR has adopted this approach; some of them there is a “partially”, in which case it is the duty of the ORR to regulate the use of the rail 69 network to ensure that the cake is sliced up fairly, so (LINEWD-103 05A-004 to -005) to speak. The ORR can only ensure each operator is Committee Ref: A57, List of Promoter’s enhancements Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd given a portion; it cannot determine the size of the However, if the Promoter agreed to build the cake itself. That, in this case, is a matter for infrastructure, or just some of the infrastructure—we Parliament, and that is why provision has been made are not arguing for all of it, by any means—then this in the Bill for the construction of network would provide a firm basis upon which to complete improvements. the timetabling work; rather than assuming that the capacity and the modifications will be there, we 9749. Do you see any reason why the Promoter actually know they will be. It just seems to us it would should not be required to construct at least some of be extremely frustrating and fruitless for the the infrastructure works? Promoter to realise in nine years’ time that the (Mr Smith) I think it is perfectly reasonable to be timetabling does not work and that they really ought required to; it is not as if these infrastructure works to have constructed the infrastructure in the first are only going to benefit one party. When we look at place. I suppose, really, our concern here is the ORR the detail, all the users of the network will benefit has proposed a mechanism which if, nearer the time, from the infrastructure works. I should also make the the model were to show that the Crossrail paths and point, of course, that the capacity enhancements are freight paths could not be accommodated, then there assumed in the timetabling work that has been are solutions available, but there certainly, by that carried out. I am referring to the timetabling work time, would not be enough time for the infrastructure done a couple of years ago now, but, also, and more improvements to be put in place to correct the importantly, the more recent timetabling work problems found in nine or ten years’ time. Now, we carried out by Network Rail and relied upon by the hope that in the circumstances where there was a ORR in reaching its final decision on the access conflict or there was too much traYc for the capacity option. available that the decision would be made that the rail industry’s freight paths would be retained. 9750. What is the latest position so far as train paths However, the ORR has made it very clear that we are concerned? cannot rely on any freight paths. The ORR goes out (Mr Smith) Network Rail’s performance and of its way, in its final conclusions, to say that the systems modelling report that 357 out of the 396 capacity that it is calling “freight” in its conclusion freight paths that were needed by 2017 could be does not belong to the rail freight industry and might accommodated although, as has been raised a not be used for rail freight industry purposes. Indeed, number of times, this could only be done at this stage it is possible they could be used for the restoration of with a public performance measure of 71 per cent. the two oV-peak paths that have currently been caused by the ORR to be withdrawn. So we have no 9751. CHAIRMAN: I am sorry, Mr Smith, whose guarantee that the ORR will hold Crossrail to the model is that? decision that has been made. We need some (Mr Smith) This is Network Rail’s performance and assurances that new infrastructure will be systems modelling report. Network Rail, eVectively, constructed because that way, rather than saying to has— our customers: “Don’t worry, there is an industry model in place, there is an objective test and there are lots of administrative mechanisms to protect your 9752. Submitted to the ORR? interests”, the building of the infrastructure says we (Mr Smith) Indeed, yes. Now that the ORR has can go to our customers now (and operating freight concluded that the Crossrail oV-peak service ought to by rail is not something that is done overnight, it is be reduced, all 396 freight paths ought to be able to something that requires some planning) and say: “In be accommodated. But that will only be the case if the the future we will be able to operate your services on capacity enhancements upon which the timetabling the Great Western Main Line. Without the work relied are actually constructed. commitment on the infrastructure we are left relying on a process that is untested and uncertain. Of 9753. MR GEORGE: How long has this timetabling course, it is going to be eight or nine years from now work been going on for? before it is put to the test, by which time it is really (Mr Smith) It seems like forever but it is actually only going to be too late. two-and-a-half years, with at least two diVerent groups convened by the Promoter. This is not a swift process. I think our concern is that the Promoter’s 9754. What do you say about the Promoter’s unwillingness to commit to construct the argument on flexibility? infrastructure is only going to result in more and (Mr Smith) Certainly, the Promoter mentions more timetabling runs taking place, with the flexibility quite a lot, but what is curious about this is uncertainty continuing as to whether the paths for all that the Promoter says: “We are not sure about the operators—freight, other passenger and Crossrail— infrastructure or the design or whether we want this will be accommodated on the routes in question. bit here or that bit there”, but we have not yet got any Processed: 14-08-2008 19:48:01 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG1

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd evidence to suggest that the infrastructure works in its planning permission role, can balance the which the Promoter is seeking powers for are interests of the Promoter with the private interests anything other than absolutely necessary. The eVected by the Bill and can ensure that capacity is Promoter has not identified alternative works, he has increased by requiring an undertaking that certain not environmentally assessed alternative works. works are committed to be built. Although we talk about flexibility the only game in 71 town seems to be the infrastructure that is presumed 9757. We then come to Exhibit 24, there are listed the in the Bill. six works which you regard as most important, is that right? 9755. Has the Promoter got the power to construct (Mr Smith) That is correct. alternative works unless they are within this Bill? (Mr Smith) He does not have that power. 9758. The first of those is the Acton dive under in respect of which the Promoters have already given an 70 undertaking, which I have already referred to. Can 9756. If we then go to exhibit 23, please, I think you we have on the screen EWS-24. have sought to put up a summary, really, of the (Mr Smith) We looked at the works that are argument. Perhaps you can quickly take the contained in the Bill and we have identified six which Committee through EWS 23. we believe are crucial for the capacity for all users of (Mr Smith) We believe that the current timetabling the Great Western Main Line. The first has already position produces a very low performance on the been committed to by the Promoter, the Acton dive network. So, therefore, it is in everybody’s interests— under that we have discussed before, the others, West in fact, need—to increase the planned performance to Ealing, Southall and Hanwell Bridge, Airport 92 per cent to match that which the Government Junction, West Drayton and Iver are the others. requires for the whole railway anyway by 2014. Perhaps I should make the point that we are not the Therefore, there is going to be a need to increase only people arguing for the importance of these capacity on the network and on the Great Western works; Mr Berryman also presented these works to Main Line anyway. There are no alternatives. The the Committee on day 21 and spoke to each of them. works in the Bill are, as we say, the only game in The paragraph references where Mr Berryman town. The Bill has been deposited for three years and described the benefits of each of these works is in the no alternative works have been suggested. Nobody right-hand column of this exhibit. has yet said, despite the Bill having been lodged for three years, that any of the works in the Bill, other 9759. That may be of assistance for doing some cross- than the switch of the depot from Romford to Old 72 checking if your Lordships feel it appropriate. Could Oak Common, are unnecessary. There is flexibility in we then turn to a brief look at these particular works the Bill to vary the works within their limits. The and could we first of all go to EWS 25. We start with Environmental Statement assumes the work will be the new West Ealing platform. Could we put that on constructed. The Environmental Statement has not the screen? I apologise to the Committee that there assessed the eVect of a reduction in freight capacity— were two plans which have needed a small revision to in fact, the Promoter has said there is no eVect on them and that is now being handed around, but the freight. The ORR has come up with a series of novel, revision does not apply to the first couple we are clever mechanisms to create assurances for all users going to look at. It is EWS 25, starting with the new of the network. As mechanisms, those do not, in West Ealing platform. Could you talk us through themselves, increase capacity; they merely work out this? who gets that capacity if there is a problem. So, (Mr Smith) The new platform at West Ealing allows agreeing and deciding now that some of those the service from Greenford to terminate at West infrastructure works should be put in place gives Ealing. At the moment they travel through to more certainty to the Promoter, to the Petitioners, to Paddington and take up space on the relief lines in the current users of the network and the future users both directions. By going into the platform of West of the network; it reduces the chance of delay to the Ealing it creates more space on the relief lines. It is project and reduces the chance of cost overruns if at not just for freight services, it is for the Crossrail the last moment people are having to rush around to services as well. Again, this is something which is of do things in an emergency to cover shortfalls in benefit to all the users of the route by cutting short a capacity on the network. To repeat the point I made little used service compared with the others in West earlier, the ORR’s role is to cut the cake. This Ealing and allowing more capacity on the main Committee can make it larger. How is that? 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9760. When Mr Berryman was giving evidence on (Mr Smith) I do not really want to get into a long day 21 he said that this particular improvement was debate about the alternatives for serving Heathrow. I neutral in terms of freights, do you agree with that? think that has been debated before the Committee, (Mr Smith) I was slightly surprised by that comment but, if one works on the presumption that there is to because freight and Crossrail will be sharing the relief be an increased level of service between Heathrow lines. If it is a benefit to Crossrail, then it must also be and the London area, the only way to get between the a benefit to73 freight as well. two is by using this infrastructure that has been outlined on this diagram. 9761. If we did come on to Southall, which is the 75 next one. 9764. We then come to West Drayton please, and (Mr Smith) This is a location near Brentford. The again it is a replacement sheet. proposal here, and again Mr Berryman explained it (Mr Smith) There are two associated schemes here. and we fully support the concept, is to place between At the moment, there is a goods loop into which the relief lines and the main lines a waiting place for freight trains will be moved to allow passenger trains freight trains which are crossing from the relief lines to pass and that allows some measure of flexibility to the main lines. Why do they cross? Because the with the existing services, but it is not ideal and yard at Southall is the only one on the south side of involves conflicting moves around this junction here the line. At the moment, the train will get a green (indicating). In the new plan, what is the goods loop signal here and will cross all four lines and will hold actually becomes the primary operating line to be traYc up in both directions on all lines. The new used by passenger services, including Crossrail, and freight loop here (indicating) enables a train to move freight services, but now there is a much more across into the centre and then, when there is space on eVective loop in the centre. It is a little bit like the main line, move across into Southall Yard and it Southall, I suppose, which can be accessed from is a much more eYcient use of capacity. Crossrail either direction and from both ends and, in so doing, think it is a great idea, we think it is a great idea and therefore, prevents trains crossing the paths of what it is not even one that requires Bill powers because it train is coming the other way. It is a layout which is is to be built within the existing railway complex. being used elsewhere on the UK rail network. For example, it has been introduced at Tring on the West 9762. This is the one which is dealt with in the Coast Main Line and it is being introduced at Milton Environmental Statement and they say that it will be Keynes as part of the West Coast Main Line upgrade. built in the Environmental Statement74 and we simply Associated with the construction of the loop is the ask the Committee to ensure that. Then if we could need to make sure that the platforms, which already come on to Airport Junction, there is the replacement exist, now have platform faces at which passenger drawing here at Airport Junction. We have heard trains can stop and passengers can join or alight, so about this on several occasions. at the moment a goods train will pull up from either (Mr Smith) This looks like Airport Junction at night. side of the platform, but the platform is not fit for The diVerence here is that, because of the intensity of purpose for passengers getting on and oV. So there service from Heathrow Airport, to which Mr are two pieces of work here, one to create this bi- Berryman was referring earlier, some of the services directional loop, that is, a loop which is signalled for to and from Heathrow will be using the relief lines, trains to go in either direction, but not at the same whereas at the moment they are timetabled just to use time, plus the upgrading of the platform faces to the fast lines. The planned additional flyover here allow them to be used by passenger trains. (indicating) will prevent those services from conflicting with services running up and down the relief lines. Again, like the other two schemes, this is 9765. Again, how valuable do you regard that? not something that just benefits freight, it benefits (Mr Smith) It is the same as the other works in that Crossrail as well and overall increases the capacity on it makes a much more flexible network and makes it the relief lines of the Great Western Main Line, so it for Network Rail, listening to Mr Gisby’s comments is something that all parties want, and I know there earlier, much easier to operate the network and is, were a number of references to the fact that this is therefore, a benefit for all operators on this route and nearly as inevitable as the Acton dive under and all all types of traYc, so it is not something that is just we are seeking is the commitment and the certainty for freight or just for Crossrail or just for the that this piece of work will be done. complementary passenger services. That is something that will make the overall timetable work 9763. Is there any obvious alternative to serve much more eVectively and I think this one in Heathrow? particular would be a significant contributor to

73 increasing the public performance measure for 74 75

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30 April 2008 The Petition of English Welsh & Scottish Railway Ltd passenger services to the level that customers do need to be more definitive now and say, “These are demand. the works that make the Great Western work for freight, but also make it work for Crossrail and make 9766. Mr Berryman told me that he was not aware of it work for other passenger services”. any designing or modelling of alternatives to these. Have you come across any alternative freight 9770. MR GEORGE: Thank you very much indeed, improvements to these designed to work in Mr Smith. conjunction with Crossrail? (Mr Smith) I am not aware of any freight alternatives 9771. CHAIRMAN: Thank you, Mr George. Mr to the ones that we have described. Elvin, if I remember rightly, the last time we dealt with undertakings about infrastructure work, it took you more than five minutes in cross-examination. 9767. Do you think that the Committee could safely assume that something else might turn up? 9772. MR ELVIN: I will be a little more than five (Mr Smith) I do not think that is a safe assumption. minutes with this witness, I should think. I would have expected within the three years that we have been debating Crossrail that, if there was some 9773. CHAIRMAN: It might be better perhaps to cracking scheme that would miraculously create leave it until tomorrow. capacity and enable all services to operate eVectively, then we would have discussed it within the industry 9774. MR ELVIN: I think it certainly would be, and and might even have brought it forward. The fact is I have something else that I need to do, so would that the schemes that the Promoters have put welcome the Committee rising now rather than forward are sensible and sound ones and ones on sitting late, but we certainly would need to sit until which we would76 like to rely. 5.30 at least, I should think.

9768. Then Exhibit 26 we have already looked at in 9775. CHAIRMAN: Well, shall we stop now? my opening. That is the undertaking which is being sought. Are you able to confirm that it diVers in two 9776. MR ELVIN: I would be very grateful, thank ways from the undertaking which was sought in the you. Your Lordships, we will deal with EWS to other place, first of all, because it is restricted to fewer conclude tomorrow and then Lord Berkeley comes works? Is that right? back with the Rail Freight Group after that. (Mr Smith) That is correct. In the other place we, at a time of uncertainty, sought an undertaking that all 9777. CHAIRMAN: We are going to have Mr the works in the Bill should be constructed, whereas Garratt again, are we not? this merely relates to five works to be added to the work that has already been committed to, the Acton 9778. MR ELVIN: To be re-examined, I think, yes. dive under. My Lords, what I propose to do by way of closing submissions is to give one set of closing submissions 9769. Secondly, in the other place we had a provision at the end, if that is convenient to the Committee, in which alternatives could be substituted with the rather than separate them? approval of the appropriate committee chairman, the 9779. CHAIRMAN: Both for them and EWS? Chairman of Ways and Means, and there is no such provision made now. Why is no provision being 9780. MR ELVIN: Since both Lord Berkeley and made for substitution? Mr George’s clients are raising similar points, I (Mr Smith) Well, I think because at that time we thought it best to deal with it all at once. were still some way from finalising the Bill, there was still some uncertainty, and we acknowledged that 9781. CHAIRMAN: That is entirely acceptable. someone might have come up with a wizard idea to make things work better. Time has moved on, 9782. MR ELVIN: I will try and produce something nobody has, and we are very close to the Bill being in writing as well if at all possible. Thank you. approved and the works starting, so I think we really 76 9783. CHAIRMAN: Nothing else? In that case we infrastructure works (SCN-20080430-055) will adjourn until tomorrow morning at 10am.

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DAY TWENTY-FIVE THURSDAY 1 MAY 2008

Before: Colville of Culross, V (Chairman) Jones of Cheltenham, L Brooke of Alverthorpe, L Snape, L Fookes, B Young of Norwood Green, L James of Blackheath, L

Ordered at 10.00am: that Counsel and Parties be called in.

9784. CHAIRMAN: Mr Elvin, I suspect, it is you (Mr Smith) That is correct. who is going to cross-examine Mr Smith. 9791. So there is no question but that the ORR had a full discussion about the very issue you are raising 9785. MR ELVIN: Yes. before their Lordships which is: should the infrastructure works be required to be secured as part MrGrahamSmith, recalled of the access option? Cross-examined byMrElvin (Mr Smith) As full a conversation and discussion as you can have in a one-day hearing.

9786. MR ELVIN: In the interests of eYciency, I am 9792. But of course this came at the end of a very not going to go over ground that we have gone over lengthy period of written representations, did it not? with similar witnesses on similar issues, but let me just (Mr Smith) Not right at the end because of course ask some of the same points very brieﬂy in relation to there were further conversations afterwards. EWS. EWS attended the ORR’s hearing on 1 February and indeed I think you personally were 9793. But there had been signiﬁcant amounts of there and participated in the discussion. written representations lodged. We can see them on (Mr Smith) That is correct. the ORR’s website and we have some of EWS’s in the bundles. 9787. If we look at the hearing transcript, we do not (Mr Smith) Yes, we made a 100-page submission want to look at it in any detail because their which is referred to at the top of the exhibit you are Lordships have the transcript if they need to look at showing now. it in any greater length, but it is Exhibit 4C-068, page 9794. And you were unkind enough to question 68, and there we see one of your interventions raising1 a point and the point you are making here and in whether the Department had read it, I see. subsequent pages, we just need to note, is the point (Mr Smith) We did question that. about securing the infrastructure works, is it not? (Mr Smith) That is correct. 9795. Let us not go into that, but the point is that you had ample opportunity to develop your points about capacity, securing freight paths, securing freight 9788. In this discussion, we can see, you make the growth and securing infrastructure before the very point that you make before their Lordships. If Regulator. we look at the bottom of page 68, at lines 22 and 23, (Mr Smith) We made those points. you make the point that only the Acton dive-under is committed. 9796. Did you feel you were prevented in any way (Mr Smith) I do. from making the points you are now making to their Lordships? (Mr Smith) We may go on to discuss our subsequent 9789. Which is the position before their Lordships submission and further conversations we had with today. the OYce of the Rail Regulator. We did feel that the (Mr Smith) That is correct. ORR was focused on a number of other issues as well, so we did continue to make the point about the 9790. We then have a discussion and it goes on for infrastructure. several pages, discussing the issue of infrastructure, does it not, until about page 75 and possibly beyond? 9797. But you do not feel that you were denied the 1 opportunity to make your point as fully as you felt Hearing, Friday 1 February 2008 (LINEWD-34 04C-068) you needed to make it? Crossrail Ref: P67, OYce of Rail Regulation, Crossrail – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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(Mr Smith) The ORR’s process is very transparent infrastructure”, we just said, “Okay, we will deal with and open. all the other points that we have raised with you”, which we then put into this letter that you have up on 9798. So, after the provisional decision came out, the the screen now. provisional decision, as we have said to other witnesses and we do not need to look at it, made it 9802. Clearly he was not referring to a legal ability very clear that the ORR had decided not to make the because he has wide powers of direction. carrying out of infrastructure works a specific (Mr Smith) I am aware of that, so I am not quite sure requirement of his directions, but that, because it was what it was he had diYculty with. taken into account in the modelling and because proposed changes in the change control mechanism 9803. The only reason that we have and that the were afoot, he would go for an output-led approach Committee have are the reasons set out in the to the access option. provisional and the final decision letters, and indeed (Mr Smith) Well, that describes the ORR’s the discussion on 1 February, where they make it provisional decision. clear that the issue of uncertainty, because modelling was at an early stage, meant that it was better to have 9799. Yes. There2 was then further discussion, as you an output-driven approach. That is the reasoning we said, and you wrote at some length to the ORR on 17 get, is it not? March, and we have that also in the bundle. It begins (Mr Smith) We do know that the ORR’s resources at 04A-106. That is the beginning of the letter and were very thinly stretched at this particular time it runs on, I think, for about 20 more pages. You because of issues to do with the West Coast Main make two points in relation to the issues that we need Line. to raise before their Lordships. If we go please to page 112, section 9 of the letter, my Lords, I have already 9804. Could you answer my question, please? quoted part of this in opening, but there, under the (Mr Smith) Sorry, I do apologise. Could you just heading ‘Modelling’, you deal with the output-led repeat it again for me? approach and you note in 9.1 at the end, “EWS understands that, with3 the exception of the proposed 9805. Yes, what I said was that what we do know dive-under, there are no commitments”, so you from the reasoning of the ORR in the decisions is that clearly acknowledged that that was part of the it, the Regulator, considered it inappropriate to make provisional decision. In 9.2, you go on to say that those requirements because the modelling at this you are disappointed that it will not be made stage is at an early stage and flexibility was required, conditional on those enhancements, but you, and those are the items of reasoning which go into the nevertheless, understand the ORR’s proposal to ORR’s decision to go for outputs, because it provides condition the use of rights based on outputs. greater security. (Mr Smith) This letter followed a meeting that we (Mr Smith) They are the statements the ORR put in had with the ORR on 13 March. We were invited by its decision document. the ORR to attend for informal discussions. We do not have a record of that meeting. The ORR may do; 9806. So you have no other reasons that you would they tend to keep notes. vouchsafe which contradict the reasons appearing in the decisions? 9800. It is not on the website unfortunately. (Mr Smith) No, no other reasons. (Mr Smith) At that meeting with Mr Kogan and Mr Robertson, we raised at length the issue of the 9807. So what the Committee does know is that there importance of infrastructure commitments, and Mr was an additional meeting, therefore, at which you Kogan, as I recall, said that the ORR was not able to made the point yet again about the infrastructure require commitments to the infrastructure. and, therefore, there can be no doubt whatsoever that the ORR was fully apprised of your views of 9801. Did he vouchsafe you a reason for that? infrastructure. (Mr Smith) No, he did not. He just said that it was (Mr Smith) The ORR was fully apprised. We left all very diYcult. We have extensive and good them in no doubt about our views. relationships with the ORR and we tend not to push at a very closed and bolted door, so, when Mr Kogan 4 9808. MR ELVIN: The other point you make in this said, “We’re not able to commit to the letter, if we can please go to page 117, is in relation to 2 change control. of Rail Regulation, 17 March 2008 (LINEWD-34 04A-106) 3 4 Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce of Rail Regulation, Modelling, 17 March 2008– (LINEWD- of Rail Regulation, Change Control, 17 March 2008 34 04A-112) (LINEWD-34 04A-117) Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce – – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9809. CHAIRMAN: Mr Elvin, I am not sure that (Mr Smith) That is what it says. any of us really understands what change control is.

9810. MR ELVIN: Can I try this and Mr Smith will 9821. You set out what the concerns were and you tell me if I am wrong. My Lords, change control is a said that it would not necessarily work transparently series of protocols which allows you to identify when and predictably, it could enable Crossrail to use up you should regard there being a conflict between the protected capacity, there would be an ability to Crossrail paths that are being modelled and the other change the model without agreement, and you say paths which are regarded as relevant for those that, given these concerns, this is 15.9, “EWS firmly purposes, that is to say, existing passenger paths, supports ORR’s proposed changes to the change existing freight paths and the modelled paths for control mechanism as set out in paragraph 35 of the future growth in this case. What the change control proposed decision, particularly that, if there is a rules do, as I understand it, Mr Smith, is that, where conflict with existing rights or there is a problem with such a conflict as defined is identified, they set out a model which gives rise to a conflict with existing what should happen in the event of that conflict. rights, then the Crossrail conflicting right is removed (Mr Smith) I believe that is the case. I am not an permanently and not just until the existing right expert on this either, but my colleague, Mr Oatway, expires”. In other words, what the position had been who appears shortly is, but I agree with you. before is that the model had suggested that, if there was a conflict, the conflict might have simply put the 9811. MR ELVIN: So, my Lords, it is a means of Crossrail path into abeyance until the paths that it resolving what happens. was in conflict with came forward again for renewal for their own access options. 9812. CHAIRMAN: It is a mechanism? (Mr Smith) That is correct.

9813. MR ELVIN: It is a mechanism for resolving 9822. But what the change control mechanism in fact conflicts between Crossrail paths in the modelling now does is say that, if there is a conflict which cannot and other paths that should be protected. be resolved, then the Crossrail path which is in conflict is lost. 9814. CHAIRMAN: But it would happen in general (Mr Smith) That is the new position. terms across the entire rail network?

9815. MR ELVIN: Well, I will show you the 9823. So, in other words, not only do you have the relevant terms so far as your Lordships need them. capacity of the output-led model which assumes infrastructure improvements, but you have a 9816. CHAIRMAN: But it is a general exercise? protection for your own paths, do you not, and for those for the rest of the industry, both passenger and 9817. MR ELVIN: It is a general exercise so far as freight, that, if the Crossrail model cannot resolve the Crossrail modelling is concerned. You have the conﬂicts with protected paths for freight and freight change control mechanism and the decision is speciﬁc growth, the Crossrail paths are lost permanently. to the Crossrail access option. (Mr Smith) The concern—

9818. CHAIRMAN: But, as a mechanism, it is general in the railway industry? 9824. Could you answer my question first? (Mr Smith) Certainly. You have correctly stated the 9819. MR ELVIN: It is, yes. As I understand it, and position that we expressed in our letter. The concern I am not going to take their Lordships right to the that we have, and which emerged only yesterday in a beginning of section 15 because it is rather long, but discussion at the Timetable Reference Group, is that you have expressed concern with the lack of focus in Crossrail asked or suggested to the Regulator that the change control mechanism and you thought it the two oV-peak paths that the ORR had asked was too beneficial to conflicts from Crossrail, so you should be removed should be reinstated into the had urged the Regulator to come up with a much timetable model and that not all of the freight rights tougher means of resolving those conflicts? of paths should be included. I am sure that this will (Mr Smith) That is correct. be resolved in further discussion, but it is an indication that, whilst we appear to have a 9820. What you say at 15.8 and 15.9 is in fact that you mechanism to be tested at some point in the future, are pleased to note that the Regulator had come up there are already attempts being made to try and with a much tougher regime which you thought adjust the underlying assumptions in that suitable for purpose to resolve conflicts. mechanism. Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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9825. Let us just get this clear. So far as the modelling 9831. MR ELVIN: Can we just look at the change is concerned, the modelling still continues under the control mechanism5 very briefly just so that their Regulator’s decision on the basis of the full number Lordships see it very briefly before I sit down, and I of paths applied for and the infrastructure am sure you will be pleased to hear that! Can we go improvements that would have accompanied the full to Exhibit 05-113. number of paths applied for. The modelling does that, even though the Regulator has said, “You may 9832. LORD SNAPE: We have laid awake most of not at this stage have two oV-peak paths”. the night, Mr Elvin, thinking about it! (Mr Smith) It is very reassuring that the modelling will continue to assume that all the infrastructure improvements— 9833. MR ELVIN: I will refrain from comment! This is all part of the final decision dealing with the change control mechanism and their Lordships can 9826. Well, that is what the decision says. The see at paragraph 91 where it moves on to the next modelling continues to assume that the paths that page in paragraph 8(2) and says, “These concerns”, have not been granted to us are still in there. Of and these are the concerns that you identify in your course there could be no objection if, in due course, letter as well, “led to our decision that we should it became clear that those paths could be change the CCM”, the change control mechanism, accommodated without undue impacts on other “to give e ect to the following key principles”, and protected paths and other appropriate capacity. It V we see clarity, setting out the consequence of conflict may not, but there is nothing to prevent Crossrail for Crossrail and third parties, but, if we go to the from seeking to persuade the Regulator that the two next page where the real teeth are, the first bullet oV-peak paths that had been lost could be reinstated point, “The eVect of an irreconcilable conflict if suYcient capacity was found to exist with further between a Crossrail right and the rights which we modelling. require to be included”, and we know what they are (Mr Smith) And the Regulator acknowledges that in 6 because paragraph 79 tells us, it is existing freight his decision. paths and paths to accommodate freight capacity to 2015 and other passenger paths, do we not? 9827. So there is nothing wrong with that process; it (Mr Smith) Correct. is built into the industry mechanism, is it not? (Mr Smith) I was surprised that some of the freight rights were being suggested should be removed, but I 9834. “The eVect of an irreconcilable conflict would am sure that that will be resolved in discussion as be that the Crossrail right was lost permanently not well. merely for the duration of the conflict”, so an irreconcilable conflict, we cannot sort it out, Crossrail loses a path. Similarly, the eVect of a 9828. Well, the modelling inputs can only be changed conflict arising because of an error in the model or the with the agreement of the parties or, in default of model assumptions or because of the descoping of the agreement, by the independent adjudication of the project would be that the Crossrail right was lost ORR. That is right, is it not? permanently. In other words, if there remain (Mr Smith) That would be very reassuring. unsatisfactory elements in the model which do not deal with the issues properly, then again Crossrail is 9829. Well, that is what your letter says. penalised by losing any eVective paths. (Mr Smith) Yes. 9835. CHAIRMAN: What does “descoping the 9830. So we cannot do it unilaterally. We can only do project” mean? it if we either persuade you and your colleagues in the freight industry or we can persuade the ORR independently to do so, so you have protections 9836. MR ELVIN: I was hoping to avoid answering through the output mechanism, which assumes that question! Let me see if I can find out. (After a infrastructure enhancements, you have protection pause). It means removing elements of the project. through the change control mechanism, which will lose Crossrail paths if there is unresolvable conflict 9837. LORD YOUNG OF NORWOOD GREEN: with your protected paths, and changes to the For example? modelling assumptions can only be made either by 5 agreement within the industry or by the independent of Rail Regulation, Change Control, 17 March 2008 adjudication of the Regulator. (LINEWD-34 05-113) 6 Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce (Mr Smith) Your statement, including the fact that of Rail Regulation,– Change Control, 17 March 2008 the infrastructure is assumed to be there, is correct. (LINEWD-34 05-111) Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9838. MR ELVIN: For example, if there were 9847. LORD BROOKE OF ALVERTHORPE: insuYcient infrastructure works to generate the What would happen—it may seem in contradiction capacity necessary to deliver the outputs. That is why with what I was saying about the western element of we say there is suYcient security for the assumptions Crossrail yesterday—if you decided you wanted to and for the infrastructure built into the mechanism. run more trains?

9839. LORD JAMES OF BLACKHEATH: Who 9848. MR ELVIN: We would have to seek a new would be the judge as to whether the removal of any access option. such action caused a worsening of the safety implications? 9849. LORD BROOKE OF ALVERTHORPE: What is the guarantee that that is available for rail freight? 9840. MR ELVIN: The ORR. 9850. MR ELVIN: The same as anybody else, my 9841. LORD JAMES OF BLACKHEATH: Would Lord, which is we have to persuade Network Rail there be a point of reference to it to get that consent and then we have to persuade the regulator, which before? includes a mandatory consultation with the industry.

9851. LORD BROOKE OF ALVERTHORPE: If 9842. MR ELVIN: My Lord, the way this process there is only the existing infrastructure available, goes is that there is now a lengthy process by which somebody down the line has to suVer that. the directions are worked up and the ﬁnal agreement is approved by the ORR. If the terms of the 9852. MR ELVIN: No, because, my Lord, your agreement are not met, then the access options Lordships are proceeding on the sole assumption that cannot be exercised, so the policeman, as it were, is the ORR will simply roll over if we say, “We want our the ORR, but the watchdogs will also include the paths, we’re not going to do the infrastructure”. industry if they are not satisﬁed that the terms are Your Lordships have no basis for making such an being met. assumption, with respect.

9843. LORD JAMES OF BLACKHEATH: The 9853. LORD BROOKE OF ALVERTHORPE:I incentive to cut a corner or take a shortcut for a cost am not proceeding on that. I have seen regulators saving for the Promoter in this particular respect sacked. must be considerable, and if the ORR is wholly dependent upon the Promoter to present the case, 9854. MR ELVIN: Your Lordships may wish to how do we know that case is fully and openly being take a very cynical approach about the regulator. disclosed at that stage? With respect, your Lordships have to proceed on the basis of an independent regulator established under 9844. MR ELVIN: The ORR is not totally law, subject to the supervision of the court. I ask your dependent upon the Promoter. Lordships just to bear this in mind, is there any indication in the decision we have had so far, which has taken away two of our paths and which has 9845. LORD JAMES OF BLACKHEATH: We imposed a change control mechanism which says in need to know more about this, you are making us the event of any prejudice we lose paths, not just very nervous. temporarily, but permanently, to suggest there is any lack of independence in the regulator. 9846. MR ELVIN: The point your Lordship makes would apply to any rail project, of course, because for 9855. LORD BROOKE OF ALVERTHORPE:I any access option on the network the ORR has to am not saying that there is, I am asking the question ensure that the terms are met, but the true policeman about what would happen if you wanted to expand is the infrastructure manager responsible for safety your activities. We are listening to a Petitioner who is and maintenance. You have already seen in the concerned about whether or not they will be able to ROGs we looked at yesterday there is a speciﬁc duty meet the expansion of their business in the future and on the infrastructure manager in relation to a safety I am very convinced by many of the arguments that management plan, which includes day-to-day you are making. maintenance and safety and emergency procedures as well, so there is a duty on the infrastructure manager 9856. MR ELVIN: My Lord, can I put the question which is then enforceable under ROGs. You are not this way. What happens if any train operating dealing with just one layer of security here. company wants to expand its activities? It is given Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd under its access option, which has to be applied for 9860. MR ELVIN: My Lord, because at the time usually on a short-term basis, Crossrail has that the Bill was drafted, and at the stage of the exceptionally been allowed a 30-year period because detailed design that we had reached, it seemed that of the exceptional scale of the investment involved, those infrastructure works were those that were likely usually it is more like ten years. Everybody has to to be required. We think it is highly likely that a apply for their access option. There is equality across significant number of those works will probably be the board, whether it is Crossrail or any other train required in one form or another, but we are talking operating company. You have to make the case to about a period, if you remember the Bill scheme was both Network Rail, as the infrastructure manager, lodged with Parliament in February 2005, of and then if Network Rail is convinced, you then have construction not beginning possibly until next year, to have the independent adjudication of the ORR, 2009, the construction of which will continue over a which mandatorily includes, because of sections 17 period until 2017. We are looking at a lengthy period and 18 and Schedule 4 of the Railways Act, an of time. All we are seeking is by refusing to give an industry-wide consultation. Those protections are undertaking that we are not pinned down to absolute there for everybody and they apply to every train precision as to which of the infrastructure works may operating company that wishes to expand its be needed because it may be that an improvement in operation. Exceptionally in this case, we have not one particular item of infrastructure works renders only been asked to make provision for existing paths unnecessary the capacity that would be generated by to be protected, we have allowed for paths to allow another. We simply wish to preserve a degree of rail freight to grow to the figures agreed to 2015. Our flexibility. We are already tied down in terms of paths have been constrained not only by existing flexibility by the 92 per cent output requirement paths to be protected but by also scope for growth of which assumes the infrastructure works, so we have the freight industry. got to come up with something as good as the infrastructure works in terms of generating capacity. 9857. LORD BROOKE OF ALVERTHORPE: It may well be we end up having to do them. We are Yes. I do not think we can draw a straight analogy simply looking for flexibility in case we can produce with what might happen with an application something which works just as well but is not quite elsewhere because they do not have the opportunity identical to carrying out all of the works. It is no more in those circumstances to be expanding the and no less than that. infrastructure. This is what the argument is about, it is whether there will be suYcient infrastructure and I 9861. LORD BROOKE OF ALVERTHORPE: am convinced by many of the arguments you are making. All I am saying is that within there I did not Those are all broadly costed? see a provision to cover the possibility that you might want more paths. 9862. MR ELVIN: Yes.

9858. MR ELVIN: The provision is there. It is not 9863. LORD BROOKE OF ALVERTHORPE: So in the access option because the access option gives why do you not give an indication then that that what it gives. The provision is in the Railways Act money is ring-fenced and would be available for which says that if we want more paths, we have got infrastructure purposes, if not necessarily those? to apply for them and if the ORR says there is insuYcient capacity, “I am now going to specifically require you to carry out the following infrastructure 9864. MR ELVIN: I think the short answer is none works as a precondition”, that can be done. My of the specific items of the project is ring-fenced as Lord, the protections are the same. We can not such, it is a global figure for the funding of the project simply say, “Oh well, we’d like another ten paths at rather than ring-fencing the specific infrastructure. peak hours, week days”. What we have to do then is apply again and get a new access option, which is why I was saying it is the same process that applies to any 9865. LORD BROOKE OF ALVERTHORPE:I train operating company that wants additional was asking whether you could ring-fence the 24 in capacity. We have got to go through the application financial terms? procedure and get a new right. Our right is limited to what the ORR has adjudicated upon. If we want 9866. MR ELVIN: If your Lordship would forgive more, we have to apply for it. me, I do not want to answer that question on the hoof, I would like to take instructions on that to get 9859. LORD BROOKE OF ALVERTHORPE: the proper answer because I do not know it oV the top Why did you put the 24 proposed works in the Bill? of my head. Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9867. LORD BROOKE OF ALVERTHORPE: We 9874. MR ELVIN: We can only foresee that to the are seeking to find an answer that meets the interests extent that we can still deliver the protection of the of all the parties. This has to go back into the capacity which is being7 protected by the outputs and Chamber. that it does not generate conflicts with the protected paths. Can I flick back to paragraph 79, which is page 9868. MR ELVIN: My Lord, can I at least say this, 111 of this exhibit. Your Lordships will recall the you have a funded project which includes funding input assumptions include the protection of existing which at the moment will pay for the works set out in franchise passenger paths, point A, freight services, the Bill. If prudent cost savings could be made during which will be in operation, including the allowance the course of construction, because we are not tied for growth. We then look at paragraph 80 and if you down to carrying out unnecessary infrastructure see the8 last four or five lines there, “Crossrail will works, then surely proper public accounting would need to demonstrate compliance with the objective require those savings to be made. All we are seeking test before the rights granted in access option can be is the flexibility to say that if it turns out that we do used”. Of course, the corollary of this is if we are not need to do all of the works, we do not have to do conflicting with these protected paths, including the all of the works, although we have power to do them. paths for freight growth, the change control Of course, the flip side of that is if we cannot achieve mechanism deletes out paths if there is a conflict. the 92 per cent even with those infrastructure works, we may have to look for something better. We are not saying we should be tied down to any specific 9875. LORD YOUNG OF NORWOOD GREEN: design—there is no specific design we can be tied Demonstrate to the ORR? down to because the infrastructure works are not fully designed out in any event—but we have to achieve an output driven model which could be more 9876. MR ELVIN: Demonstrate to the stringent than we think. We hope it will not be but if infrastructure manager and the ORR because the it is more stringent, then if we want to have access for infrastructure manager—Network Rail for the main our costly rail project we will have to provide part of the network, subject to the discussion we had additional infrastructure. yesterday about the central section—but as infrastructure manager, Network Rail has a contract 9869. LORD BROOKE OF ALVERTHORPE:I with Crossrail and can enforce that contract and the will leave it at that. You see the point I am making. ORR is the final adjudicator. The diYculty is that if we do not achieve it the industry says, “You’re 9870. MR ELVIN: I can see your Lordship’s point. conflicting with one of our protected paths, including the growth paths to 2015”. You cannot resolve it, but 9871. LORD BROOKE OF ALVERTHORPE:I there is clearly a period to see if it can be resolved, but look forward to your further response with interest. if it can’t be resolved the bottom line is we lose our path. It is not the industry that loses its path, we lose 9872. MR ELVIN: I will do my best to get a rapid our path, so there is a very strong mechanism for answer to your Lordship’s question. protecting the interests of industry.

9873. LORD YOUNG OF NORWOOD GREEN:I must admit, I can see why you would want some 9877. CHAIRMAN: Mr Elvin, do I understand the ﬂexibility because there are, if one looks at the range way in which the ORR approached this is this. We of options, a number of variations that might occur have got a model which includes the infrastructure as a result of further modelling and further ones and the demands that everybody puts forward, examination. If you decide that one or other is not including the freight operators. We are not, however, necessary, I suppose the concern that is expressed by going to grant the access option on the basis of the EWS is that in some way or other it will have a inputs, we are going to grant it on the basis of an detrimental impact on either existing freight paths or output of 92 per cent because there is so much future freight paths. Having looked on the screen at uncertainty and there is so much time still to pass that what is in front of us now, I must express the view we cannot use an input-based approach and we will that I am more reassured about the ORR’s decision have to leave events to show whether you can meet to base it on outputs rather than trying to your output requirements of 92 per cent? predetermine it, but can you foresee any situations 7 where you decide for perfectly valid reasons, valid in of Rail Regulation, Para 79, 17 March 2008 (LINEWD- terms of both safety and operational requirements, 34 05-111) 8 Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce that you do not need a portion of the infrastructure of– Rail Regulation, Para 80, 17 March 2008 (LINEWD- that you at the moment have said you might? 34 05-112) Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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9878. MR ELVIN: Your Lordship is absolutely (Mr Smith) There is an allocated capacity available correct. As a corollary of that, the provisions then put for the whole industry for making the case which the enormous protection around achieving the 92 per ORR will then rule upon in accordance with its cent in the form of saying, “You can’t draw down published criteria and procedures. your access option unless you achieve it and if there are conflicts of the change control mechanism, you 9884. But to use my Lord, Lord Brook’s terminology, lose your paths”, so there are these safeguards built in the capacity for freight growth is ring-fenced in the to ensure the output driven model delivers a railway output driven model. It does not say anybody in which does not conflict with those protections which particular will get the paths because that is an access have been aVorded to existing industry. option exercise in itself, but it ring-fences the capacity for future growth as to whoever the ORR determines 9879. CHAIRMAN: In order to retain your access in the industry should be entitled to it. option it may then well be that you will be forced to (Mr Smith) Not for freight growth. As 58 says in the accede to implement the infrastructure works, first two lines: “We emphasise that the unapproved otherwise you will not be able to do it. capacity has not been earmarked for freight traYc or for any other purpose”.

9880. MR ELVIN: My Lord, that is our entire case. 9885. In other words, the ORR is saying, “I’m not There is suYcient protection built into the industry being fettered as to my future discretion under access mechanisms, which we are told is the way we should options. What I am doing, though, is adding into the go forward by the industry. The ORR has listened model existing paths and the freight growth so that if carefully, particularly to EWS about the change there is the freight growth, which is predicted and control mechanism and has imposed a set of very agreed, then there are suYcient paths to enable the stringent criteria on us in the recognition, as your freight industry to apply for them. Lordship has rightly said, that the inputs at this stage (Mr Smith) Or any other user. are too uncertain, so you protect the outputs and you protect the rest of industry whose paths are speciﬁed 9886. Yes, but it is always the ORR’s job to balance in paragraph 79. That is the way it is done. the various interests. The fact is that he is making sure is that the capacity is there should those paths be 9881. CHAIRMAN: Thank you. You can get back required and justiﬁed. to poor Mr Smith. (Mr Smith) Correct, and including your two oV-peak paths could go for that capacity as well.

9882. MR ELVIN: Mr Smith clearly prefers to see 9887. But you, as we, must justify your case for new Counsel being cross-examined! May I say, it is a paths, must you not? refreshing change to give evidence! Mr Smith, that is (Mr Smith) Absolutely correct. broadly right, is it not, that the protection that industry has lies through the terms of the output and through the change control mechanism? 9888. And that is the independent mechanism which (Mr Smith) That protection exists. It will come into the industry operates? play at some point in the future, eight, nine or ten (Mr Smith) That is the system which operates at the years. We are not denying that that protection exists, moment. our concern is it is a series of untried protections, particularly the objective test, which is why we asked 9889. CHAIRMAN: Mr Elvin, one of the things we for some certainty now, not with all 24 works, by no must bear in mind is that the ORR’s decision dealt means at all, just the six we identiﬁed. I ought to draw with freight growth up to 2015. There will not be any out, and I do not have exhibit numbers or anything, Crossrail trains in 2015. but in paragraph 58 of the document which is currently on the screen— 9890. MR ELVIN: No, but what it means is the 9 model is constrained not simply by the paths which exist at the date of the decision, but that additional 9883. That is page 108 if you would like to put that growth is then factored in and that constrains what up. There is no earmarking of future paths because paths can be produced in the future. freight has to apply for its access options in the future as well as everybody else, but what you have is an allocated capacity which is available to freight. 9891. CHAIRMAN: But after 2017 when the

9 Crossrail trains start running, they will refer the of Rail Regulation, ORR’s decision, 17 March 2008 freight growth, so presumably there will have to be (LINEWD-34 04A-108) another exercise. Crossrail Ref: P67, Correspondence from EWS Ltd to the OYce – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9892. MR ELVIN:EVectively 2015 is giving you 9904. MR ELVIN: Yes. It means that additional freight growth to the opening of Crossrail, is it not, paths over and above those that exist at the moment roughly speaking. have been allowed for and are factored into the (Mr Smith) The two years could be important but it change control mechanism, so if we conﬂict with gets us close. some of those additional future growth paths the change control mechanism still bites and deletes our 9893. It gets us close, yes. After that, when you have paths. got Crossrail operating, other franchise passenger services operating, freight operating, you have got a 9905. CHAIRMAN: The track access option only series of existing companies there seeking paths and applies to Crossrail. the ORR then has to balance any request for future paths in the light of all the other train operating 9906. MR ELVIN: Yes. companies. (Mr Smith) In accordance with its criteria and procedures. 9907. CHAIRMAN: Not to any of the freight companies. 9894. That is a standard process, there is nothing unusual about it? 9908. MR ELVIN: It cannot prejudge future (Mr Smith) Nothing unusual at all. applications by other train operating companies but it has provided a pot of capacity for freight should it 9895. CHAIRMAN: But the ORR has not decided be required. on that yet. (Mr Smith) Or any other user.

9896. MR ELVIN: No. 9909. It certainly cannot be Crossrail because we cannot conﬂict with that pot of extra capacity 9897. LORD YOUNG OF NORWOOD GREEN:I otherwise the change control mechanism says we lose think it has been answered, but I was just looking at a path. The other reason for looking at 2015, Mr 58. That is talking about unapproved capacity after Smith, and I think this really needs to be my last 2015, I presume? question, is of course one of the problems is without additional infrastructure it is diYcult for the freight 9898. MR ELVIN: I think it is talking about to grow beyond 2015. Infrastructure improvements unapproved capacity full stop because the ORR are required in any event to allow for growth cannot prejudge what applications are made for beyond 2015. access options in the future. The ORR would be (Mr Smith) It depends on the nature of the growth, fettering its discretion if it said, “I am assuming I am the time of day and the type of train. going to allocate X paths to certain operators”. What it has done is provided a cost of allocated growth 9910. But broadly speaking? based on freight predictions without committing (Mr Smith) Broadly speaking. itself to how that is going to be allocated precisely because that is a matter for the normal processes. 9911. MR ELVIN: Thank you very much.

9899. LORD YOUNG OF NORWOOD GREEN: 9912. BARONESS FOOKES: Mr Elvin, early on in Let me be clear then for my beneﬁt what is protected your cross-examination— in terms of EWS. Existing freight paths? 9913. MR ELVIN: Was that my cross-examination 9900. MR ELVIN: Yes. by the Committee or in front of the Committee! 9901. LORD YOUNG OF NORWOOD GREEN:I thought they had also allowed for future growth up 9914. BARONESS FOOKES: Of Mr Smith. to 2015 for EWS. 9915. MR ELVIN: Thank you. 9902. MR ELVIN: It is not for EWS; it is for the freight industry without the ORR saying, “I will 9916. BARONESS FOOKES: You stopped Mr necessarily allocate it”, that is what 58 means. Smith from something he was trying to say on the grounds that he should answer your question. What 9903. LORD YOUNG OF NORWOOD GREEN: I should be interested to know is the conclusion of But it does mean that they have allowed for freight what Mr Smith was attempting to say when you growth up to 2015. interrupted him. Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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9917. MR ELVIN: I am sorry, my Lady. infrastructure did what it said it was going to do, you need timetabling experts and the majority of those 9918. CHAIRMAN: If he can remember! reside either within Network Rail or a few within the OYce of Rail Regulation. 9919. MR ELVIN: I cannot remember! 9924. Their Lordships and my Lady have already 9920. BARONESS FOOKES: I believe you were seen the debate in the hearing transcript, or at least saying that the Rail Regulator’s resources were will see it in the transcript if they were not here, with rather thinly stretched. RFG. Mr Burns gave evidence, and indeed Mr (Mr Smith) I was saying that. We were debating as to Morris for Crossrail, that the modelling was only at why the ORR in the meeting that we had with them the first iteration and there was considerable scope on 13 March said that it was not able to produce a for improvement and considerable additional decision relating to specific infrastructure and they modelling to be done later. I think August is the next did not explain that point. I was going to go on to say iteration. That is part of the uncertainty which led the that at that time the ORR’s resources were very thinly ORR to the conclusion that it should be output stretched dealing with the consequences of the driven and the ring-fencing of the capacity should be overrun on the West Coast Main Line at Christmas, protected by the revised change control mechanism. the orders and provisional orders that had been That was all part and parcel of the reasoning for the served upon Network Rail and the analysis being decision. taken by their operations and engineering team into (Mr Smith) That was included in the transcript, yes. what had gone wrong at Christmas and what Network Rail was proposing to do to put it right. If 9925. Those are clearly the reasons why the ORR the ORR had wanted to make a recommendation went for the output and change control mechanism, relating to specific infrastructure they would have because the modelling was at a very early stage and had to have modelled the eVect of that infrastructure there were acknowledged uncertainties with it. and whether it produced the additional capacity or (Mr Smith) That is the reason the ORR has written the additional performance. They would need to into its decision. assure themselves that the figures were correct, so they would need to use their own operating and 9926. We have no reason to believe it is anything else, engineering resources to make that happen. The have we? point I was making, but it was speculation, was that (Mr Smith) I have no other evidence. their operating and engineering resources were diverted at that time on a number of other quite 9927. Everyone has said that the process has been fair important issues within the railway industry and, and transparent, the ORR has not suggested any therefore, may not have been able to have coped with reason other than those which have been given in the this particular issue at that particular time. documents their Lordships have seen. (Mr Smith) I am not aware of any other reasons. 9921. MR ELVIN: Of course, that is speculation, Mr Smith. 9928. MR ELVIN: Thank you very much. (Mr Smith) That is speculation. 9929. CHAIRMAN: Lord Young, do you want to 9922. The ORR had evidence from Network Rail, did ask Mr Elvin questions or Mr Smith? it not, on the modelling as well as from the industry? (Mr Smith) There is evidence provided but the ORR Examined byTheCommittee will always want to assure itself that what it has been told by Network Rail or the industry is correct, so it 9930. LORD YOUNG OF NORWOOD GREEN:I will apply its own resources to test that. think Mr Smith. I do not want to put you too much at ease. That was a joke! I understand your concerns 9923. Let us be absolutely certain about this so that but they have arrived at a decision that they feel it Lady Fookes does not get the wrong idea. This is not should be based on outputs and they arrived at that a one-sided exercise, is it? It is not simply the figure of 92 per cent PPM. Presumably that was applicant for the access option or even Network Rail based on some modelling, they are not just clever putting forward its case and its evidence alone, there figure-pluckers, they got there by a process that is is evidence also from all of the other parties involved reasonably transparent and capable of being should they wish to put it in? validated and is there for a reason. (Mr Smith) Evidence from all the parties, but if one (Mr Smith) The 92 per cent was a figure that was is doing timetabling testing, which is essentially what suggested by Crossrail, and Crossrail will have to would have been needed to test that a piece of explain why they chose 92 per cent. They said they Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd can actually get to 95 per cent. Our presumption is the operators, all the customers, whether they are that it is drawn from the Government’s wish to have passengers or freight. This is not just a special a PPM of just over 92 per cent by 2014 for the whole pleading by the rail freight industry, this is what will railway. The ORR in choosing 92 per cent were make the Great Western work with the intensity of building on some existing assumptions about the service that everybody is proposing. That is why it performance of passenger trains. They also seems sensible to agree to do these pieces of work recognised that the 71 per cent that the first run of the now. The Airport Junction seems to be virtually a model had produced was completely unacceptable. done deal, but not a commitment. The other ones are The ORR’s problem was they were putting in place not complex pieces of infrastructure but very sensible some mechanisms and some tests that will only be put additional pieces of work. Bear in mind these ideas into practice perhaps in ten years’ time and that was were not ours, they were Crossrail’s which create the all they felt they could look at at that time. The point flexibility that all users of the network need. They are I made is that leaves us with ten years’ uncertainty an extremely good idea. To have certainty about that when everybody is put to the test that them now would mean the objective test is important mechanism actually works because no-one has ever and the objective test will be put to the test in ten tried this way of sorting out capacity before. years’ time, but to know that one passing loop, one bit of railway, enables a freight train to wait before 9931. Thank you for that. Can I ask you one further going into Southall Yard rather than crossing all four point. Is that a challenging figure, 92 per cent? You lines on the flat, is sensible operating and I think any clearly are of the view that the first suggestion of 71 professional railwayman could give you that per cent was not acceptable, but is 92 per cent a assurance. These are plain, simple good ideas. challenging figure? (Mr Smith) 92 per cent has not been achieved in the 9933. LORD SNAPE: Given the projections that UK rail industry since before the crash at Hatfield, have been made for the freight industry over the next which saw the industry go into performance decade or so, Mr Smith, do you think it is feasible meltdown, particularly on the passenger side. On the that you could operate not just the existing freight passenger side, we are currently approaching 90 per trains but the forecast ones without the infrastructure cent. 90 per cent is a bit more of a stretch. 92 per cent improvements prior to Crossrail actually starting? of short-distance trains arrive within five minutes. (Mr Smith) It will be tight but our view is that if you Long-distance trains arrive within ten minutes. I did not have Crossrail we could operate. We would think it will be challenging because this is going to be probably have to run more services at night and a very intensively worked piece of railway. I have maybe in the early hours of the morning and late in been on the railway for nearly 30 years and the the evening, so we would have to spread our services intensity of service that is being proposed on both the out 24 hours. That said, customers are becoming Great Western and the Great Eastern and, much more 24 hour orientated as well. Network Rail particularly on the Great Western, the number of have plans for the seven day railway, which you may divergences to Heathrow, intermingling it with have read about, which they believe they can do with freight services and other passenger services, is great. less engineering access. There are ways and means of It is easy to achieve 92 per cent or even 100 per cent fitting in the growth that we anticipate. The problem on a branch line with one train going up and down, comes with the step change in the level of passenger say between Norwich and Cromer. On this bit of activity with Crossrail. railway with Network Rail needing engineering access, with our freight trains trying to get into 9934. Take us through that then. If some or all of terminals, trying to get out, avoiding the peak hours these infrastructure improvements are not made, but running at nights, this will be demanding. what will happen in the first, let us say, two years of operation of Crossrail? 9932. Surely it is in Crossrail’s interest to ensure that (Mr Smith) There has been no timetabling modelling they have got the necessary infrastructure to meet without the infrastructure, so I will caveat my that challenge, bearing in mind the very valid point statements with that. What I think we will see is if you make about the complexity of interaction there is no infrastructure improvement and all the between diVerent services. Crossrail services are permitted to run, I would (Mr Smith) That was the very point I was making expect the number of paths per hour for freight yesterday, that the six pieces of infrastructure we would have to be reduced. The worst time will be were seeking, including Acton, were not just for the during the peaks but then we try to avoid running our benefit of freight. Because freight and Crossrail are trains during the peak hours anyway, we try to be a both using the relief lines as well as some of the good neighbour to the passenger railway. The complementary passenger services, these pieces of pressure would come in places like the shoulder peak. infrastructure will benefit all users of the railway, all For example, we try to bring our stone trains up from Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd the Mendips and get them into the terminals before Transport perhaps, and we would all be asked to see the current peak period starts. Under the Crossrail if we could make adjustments, make compromises, proposals the peak and the shoulder peak will start reduce our ambitions. We actually had that earlier—Crossrail believes there is a significant experience, again on the West Coast Main Line when passenger demand for that—therefore we are either that project was going wrong, when the Strategic Rail going to have to bring our stone trains up even Authority started up and Mr Bowker was taking over earlier, but then one is saying to a customer, “Do you as chairman. The project was going nowhere and he mind loading this train at three o’clock in the called the freight operators in, the passenger morning,”, and they will say, “Our neighbours are operators, and said, “Okay, guys, what compromises not too keen on that”, and I can understand that can we all make to make this project work?” We gave point, or we are going to have to have spare sets of up some paths and we persuaded customers to go by wagons so we keep the trains held back and throw diVerent routes and in some cases some traYc did not them in when we can or, more realistically, there will materialise and the long-distance operators and the be a cap on the amount we can do. commuter operators made some compromises as well. That is what business is all about. 9935. Let us look on the black side of this particular equation, that all the infrastructure improvements 9938. So there is a history of this? that you are talking about in your petition are not (Mr Smith) There is. made, the Crossrail trains are introduced and according to Mr Elvin, of course, these matters will 9939. CHAIRMAN: Is what you have said about be resolved in due course and it will be Crossrail that the West Coast Main Line an example of the use of will lose out. You have spent a lot of time in the rail the CCM, so ultimately if there is no agreement it freight industry, is it your view that for too long would go to the regulator? perhaps rail freight has been treated as the poor (Mr Smith) All disputes will eventually end up with relation of the railway industry and the pressure will the regulator who could use the CCM or other be on you to reduce your trains rather than go mechanisms in accordance with his published through this procedure of going through the ORR procedures by which he will then allocate capacity. and the impact being placed on Crossrail rather than on rail freight? 9940. But it is a tangible example of the use of a (Mr Smith) Let me give you just one example that CCM, is it not? makes me have the fears that you have just expressed. (Mr Smith) As I said to Mr Elvin, I am not an expert In December 2008 there will be a very intensive on the CCM so I would not like to comment. passenger service introduced on the West Coast Main Line as the end result of the very long upgrade works that have been going on. EWS has been served by 9941. BARONESS FOOKES: Mr Smith, would I Network Rail with something called a “carve-out be right in thinking that, despite the very compelling notice” by which Network Rail has the right to arguments put forward by Mr Elvin, you are not change the times of, or remove altogether, freight wholly convinced? paths on the West Coast Main Line that are in (Mr Smith) It is very diYcult not to be convinced by conflict with the new passenger service. That is a Mr Elvin. matter between ourselves and Network Rail. We are challenging it. We are realists, we appreciate the 9942. CHAIRMAN: Indeed. politics of railways is primarily about the passenger and the passenger train and when there is a squeeze 9943. MR ELVIN: I have certificates for that! on capacity it is freight that does suVer. 9944. LORD SNAPE: It can be part of your next 9936. LORD BROOKE OF ALVERTHORPE: Mr advertising campaign! Smith, if Crossrail did not hit the 92 per cent do you (Mr Smith) But I do have a sneaking doubt that Mr believe that the regulator would in fact deny them Elvin is relying on an administrative mechanism. It is access, they would leave the tunnel unused and all the a bit of a case of “trust us”, “trust us that in ten years’ trains unused? time it is all going to be okay”, yet as we saw (Mr Smith) That would be quite a surprising yesterday morning with the debate over the central outcome. section, as we found out today about the submissions about, “We don’t want to include all the freight paths 9937. What do you think would happen? in the objective test, do we?”, which was the debate at (Mr Smith) It is speculation but I can presume that yesterday afternoon’s Crossrail Timetable Reference all parties would be brought together by whoever is Group --- Mr Elvin comes over as a straight, honest running the railway at that time, Department for and direct individual but, sadly, Mr Elvin is not in the Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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Reference Group and will not necessarily be involved 9950. MR ELVIN: I think your Lordship has in the objective test. I am a bit worried. slightly taken my point beyond its logical boundary!

9945. BARONESS FOOKES: From your point of 9951. LORD SNAPE: He did indicate anyway that view, what is the bottom line? We had this long list of the scheme might come in under budget, Mr Smith. works undertakings, some are more key than others, Supposing it does not, and I am bound to say that is so what would you wish us to come to a conclusion the more likely outcome. I hope I do not disillusion on? Mr Elvin too much by saying that the scenario he (Mr Smith) There were originally 24 works; we do outlined does not come about, the scheme is over not want 24. We have asked for six, one of which the budget and we get only two of the six essential works, Promoter has already committed to do, so it is just in your eyes, completed, Crossrail is introduced, the other five, which are those quite simple pieces of there is a problem in Crossrail meeting its 92 per cent siding or loops or platform faces, or the loop at West because of the infrastructure failings, then this, as Ealing. Those five, we believe, are the key ones to you termed, administrative mechanism comes into make the Great Western Main Line, which is our action, presumably as it is new it will take some time primary interest, operate flexibly for the benefit of all but what happens to your customers in the meantime users when Crossrail starts. if your trains cannot get through because of the situation we are in? 9946. And on which you would like an undertaking? (Mr Smith) Existing customers will just use other (Mr Smith) Yes, please. modes and potential customers will be put oV using rail. Again, as we are finding with all the disruption 9947. BARONESS FOOKES: Thank you. on the west coast this year, in an increasingly competitive transport environment customers have to have some certainty that their trains are going to 9948. LORD YOUNG OF NORWOOD GREEN:I get through and their goods are going to get through. know we had the worst case scenario but it is highly unlikely that all those five infrastructure developments you have referred to are going to be 9952. LORD JONES OF CHELTENHAM: My abandoned. You are seeking certainty on those five. Lord Chairman, as we seem to be in a situation where The Promoter’s response has been, “Well, there may one and a half/one and three quarters of the six be circumstances which can enable us to achieve the infrastructure improvements have been agreed to, or same outputs without carrying out all the five that are in the process of being agreed to, Mr Smith, from you have referred to”. Would you agree it is a highly your earlier comment you say the other four are not unlikely situation that none of those five are going going to cost anywhere near as much but do you have to— any idea how much they are going to cost? (Mr Smith) I absolutely agree because they have already committed to Acton, they have virtually committed to the really big and expensive scheme at 9953. MR ELVIN: I am going to provide your Heathrow. The four other schemes we have identified Lordships with the figures. I asked the self-same will not cost anything like the Heathrow scheme but question, and I will get the figures hopefully by the are very beneficial. The problem I have got is the coVee break, or just after. reason the Promoters do not want to commit to it is something else may turn up, but it has not turned up in three years. Crossrail employs some very 9954. LORD JONES OF CHELTENHAM: experienced professional railwaymen, some of whom Thank you. are sitting in the audience, who if there was a magic alternative to some of these schemes might have mentioned it by now. I really still believe that these 9955. CHAIRMAN: Is that everything for Mr schemes, which have been thought through and Smith? worked through, are the right ones to do and there are not other ones. 9956. MR GEORGE: May I re-examine? Although there have been moments when I have been 9949. LORD SNAPE: Mr Elvin set out his views of wondering whether Mr Smith has been being asked what might happen in the future and gave us that questions at all. engaging and what politicians would call the sunny uplands, that somehow this scheme will come in under budget and there will be lots of money to do 9957. MR ELVIN: As long as Mr George does not other things. I paraphrase, of course. want to re-examine me. Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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9958. MR GEORGE: I just wish I could! (Mr Smith) I would be extremely concerned were the project to be de-scoped in that manner, because I have seen or heard of no alternatives to these works Re-examined byMrGeorge10 which are necessary to create the necessary capacity for all users of the network. 9959. Could we put up EWS 26? There we can see, Mr Smith, all you are asking for with the identiﬁed 9964. MR GEORGE: Thank you very much. Those works in the Bill. Those are your ﬁve works, and one are the only questions I have. of them is not a work in the Bill, it is something which is on the tracks that is referred to in the Environmental Statement, so that then makes up the 9965. CHAIRMAN: Thank you very much, Mr totality of what you are acquiring by way of Smith. undertaking. (Mr Smith) That is correct. The witness withdrew

9960. And that is a matter in respect of which, as you MrNigelJamesOatway, Sworn heard, Mr Elvin is going to be able to provide us with Examined byMrGeorge some costs. Have you yet heard any explanation of the diVerence between those works and the Acton dive-under to which the Promoters were perfectly 9966. You are Nigel Oatway. Can you just explain to happy to commit? their Lordships the position you hold with EWS? (Mr Smith) I have heard no explanation of any (Mr Oatway) Yes. I am Nigel James Oatway; I am diVerence. the access manager for EWS, a post I have held for 14 years. I have worked in the rail industry for 27 years and within the rail freight industry for 15 years. In 9961. And if we concentrate on 2017, and aim to have addition to my role as access manager of EWS I also Crossrail operating in 2017, how stand our proposals hold a number of positions on key rail industry in relation to that objective? groups and committees. These include being a (Mr Smith) We need these pieces of infrastructure to committee member of the Class Representative be able to ensure that the Great Western Main Line Committee, which oversees and approves changes for can accommodate all the services that Crossrail want the industry Network Code; a Committee member of to operate other than the two oV-peak services, and the Access Disputes Committee, which adjudicates can accommodate the freight services, and can on access disputes between industry parties, many of accommodate the complementary passenger which arise from the Network Code; and also I am a services, and, we keep forgetting, the long distance committee member and deputy chairman of the high speed passenger services to the South West, to Delay Attribution Board, which oversees the Bristol and to south Wales. guidelines for specifying how performance delays are allocated and attributed. 9962. If the aim, as I say at present, is to achieve 2017, is that assisted by some finality now or is it irrelevant 9967. I think, Mr Oatway, if there are any questions to that objective? about change control mechanism and the like it is, so (Mr Smith) Certainty now is always better than to speak, your daily diet, is it not? uncertainty lasting into the future. From a very (Mr Oatway) I will do my best to answer any. parochial perspective, to be able to give our customers the assurance now that the whole Crossrail 9968. And what are your particular responsibilities process has created comfort for all users of the with the EWS, please? railway, that there will be suYcient capacity for (Mr Oatway) My key responsibilities within EWS everybody’s needs, is going to make it far easier to sell are managing our track access arrangements with rail freight as an environmentally sustainable mode Network Rail for running our services on the that people should be using more of in the future. network. I am also heavily involved with dealing with rail regulatory compliance, particularly matters 9963. We heard about the word “de-scoping” the dealing with access and licensing regimes. This also project earlier, and we had it defined and explained to includes the Network Code, as I have referred to us. Can you see any possible justification for a de- earlier, which is the document containing a set of scoping of the project to exclude those works which common rules which apply to network access, are in EWS 26? incorporated by reference into each track access 10 agreement, apart from a very small number of infrastructure works (LINEWD-103 05A-014) exceptions. Committee Ref: A57, Undetaking in relation to key railway – Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9969. Mr Oatway, earlier this morning Mr Smith comments you wish to make other than the matter of referred to what happened on the West Coast Main clause 41(3) which we will come to in just a moment? Line to freight. I think you gave evidence, did you (Mr Oatway) No. We very much welcome the not, at the inquiry into the Transport and Works Promoter’s policy decision to delete the majority of Order in respect of those works, is that right? the railway clauses in the Bill, but we believe the (Mr Oatway) Yes, in respect of the four tracking of Promoter has maybe erred in determining to bring the Trent Valley. forward the related amendments at subsequent public stages of the Bill and only prepared draft 9970. Precisely because there was concern about the amendments for this Committee to consider. Our likely eVects on freight of the works and you were reasoning on those points was set out in detail to seeking safeguards? recent letters to the Clerk of the Committee and the (Mr Oatway) That is correct. Promoter, so I do not propose to go into those in any great detail. 9971. Could we now, please, just turn to the whole subject of access arrangements? Could you just very 9973. You are simply hopeful, as I understand it, that briefly explain the position so far as EWS’ access when those clauses reach their final form they will be arrangements? no more damaging to private interests than the (Mr Oatway) Yes. EWS, along with all other rail present proposed clauses? users, have entered into long and short-term access (Mr Oatway) That is correct. contracts, or framework agreements, which have to 11 be approved by the OYce of Rail Regulation, and 9974. Now, can we then turn to clause 41(3) in the Bill these give them the right to use the railway network dealing with arbitration in relation to various forms and are commonly known as track access contracts. of assets? I addressed the legal side of this matter There are also station access contracts and facility yesterday and I have really only two questions for access contracts, and also connection agreements you in relation to clauses 40 and 41(3), and the first is which govern the connection of third party terminals in connection with the CTRL railway. I introduced to the network, but they are all access arrangements the Committee yesterday to the provision there which are dealt with under the access provisions of whereby they had an equivalent of clause 40 but they the 1993 Act. These contracts invariably last for did not have a clause 41(3); they simply had a many years at a time and therefore allow rail standard arbitration clause. Has that given rise to companies to plan the use of the network and oVer any diYculties or problems or delays to the services to their customers with a high degree of construction of CTRL which might justify the certainty and assurance. For example, EWS’ track inclusion of clause 41(3)? access contract with Network Rail for the majority of (Mr Oatway) None that I am aware of. its train paths expires in December 2015; EWS’ future business plans, however, are based on the 9975. And can you yourself see any need for clause presumption that this access contract will be renewed 41(3)? or extended before that time, because it is absolutely (Mr Oatway) None. essential for rail freight companies and their customers to be able to rely on the contractual rights 9976. We will leave that matter, then, and move on to within their track access contracts. If EWS could not the question of compensation,12 and in this context I use or reach its freight terminals, or lost its train think it would be helpful if we had the Promoter’s paths, it would be in breach of its contracts with its paper, H2 Railway Compensation, on the screen, customers and its business would suVer greatly. What paragraph 3, page 2. is more, the danger of this happening will also discourage any new customers from being attracted 9977. So far as the basic scheme of the proposals of to rail as a preferred mode of transportation for their the Promoters, I think that is set out in paragraph 3, traYc, as they would see rail freight as being is it not, of that particular document? unreliable, uncertain and subject to material (Mr Oatway) Yes, it is. interruption beyond the control of the rail freight operators. 9978. And they there say that they believe the “standard industry arrangements should be 9972. If we now turn to the railway clauses appropriate for compensating the railway industry themselves, I indicated in opening that EWS for the loss of, or disruption to, services during the welcomed the removal of certain clauses from the Bill, and you have had the opportunity of looking at 11 20080501-001) the new draft clauses which it is proposed to deposit 12 elsewhere. So far as that is concerned, are there any Crossrail(LINEWD-IPH2-003) Bill, Session 2007–08, HL Bill 14, Clause 41(3) (SCN- Crossrail Information Paper H2—Railway Compensation Processed: 14-08-2008 19:50:52 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd construction, apart from the specific instances set out (Mr Oatway) That is correct. in sections 4 and 5 below”. It then says that in certain circumstances, where 9983. And if we could just put on the screen EWS 29, standard arrangements do not provide an please, you can see the third of those undertakings appropriate remedy, specific non-standard 14 was an undertaking that the Promoter would not arrangements will need to be developed. I think in invoke Network Code condition G5, and G5 is summary your case is to say that the Promoters have almost in identical terms to condition G9, is it not? failed to identify a particular category where a (Mr Oatway) That is correct, yes. specific non-standard arrangement is appropriate over and above the matters referred to in H2? (Mr Oatway) That is right. I believe there are gaps, 9984. Now, what is your remaining concern in yes. relation to this G9 matter? (Mr Oatway) Well, it is to ensure, firstly, that the G5 undertaking will apply to G9 and, secondly, because 9979. Now, so far as the basic principles of H2, that we have had some doubts recently on that and have is the no loss/no gain principle, do you take issue with seen some letters from the Promoter, I am just that in any way? looking for assurance from the Promoter that the G5 (Mr Oatway) Absolutely none. I think that is undertaking will be adhered to as it is written up perfectly fair and reasonable, that compensation there, and will also apply to G9 or to, indeed, any should be given on a no net gain/no net loss basis, ie other subsequent re-numbering that G9 might holding the aVected parties neutral. change into.

9985. If we could just put up on the screen, please, 9980. Should we then turn, ﬁrst, to the question of EWS 30, that is a letter on 26 February from the G9, which may be, I think, the lesser of the two Department to Mr Smith dealing with the question of concerns which you are raising? You have an exhibit, 13 G5, which is now numbered G9, and in the fourth have you not, which we can put up in which you have paragraph it says: “We had earlier rejected use of G9 set out the provision of G9? (was G5) because it did not have compensation (Mr Oatway) Yes. Exhibit EWS-27. attached to it, not because it was otherwise15 unsuitable or inappropriate”, and that is the matter which you ﬁnd objectionable, the use of G9 because it would not 9981. This is in your Lordships’ bundle, but one give compensation, is that not right? would not expect your lordships to be familiar with (Mr Oatway) Yes, that is right. it. There was a typo in the original version where it referred to “(d)(iv)” and it should have referred to “(e)(iv)”, and that is simply corrected in manuscript 9986. And then there is apparent comfort in the text but is not a matter that is going to be of any great of the rest of that page of the letter, which I need not concern to their Lordships. Can you explain the read out, but if we turn to the second page of the letter position in relation to G9? we can see under (ii) that one option they are (Mr Oatway) Yes. The main purpose of G9 is to considering is to “explore use of G9 (was G5) but ensure that changes imposed by competent with compensation payable”. Now, until you authorities can be dealt with within the network received this letter, had you heard of any suggestion change process, but a key diVerence between G9 and that, notwithstanding the undertaking, G9, which is G1, which is the main process for dealing with what G5 has become, might be going to be used at all? changes to the network, is that under G9 all parties (Mr Oatway) No. are expected to bear their own reasonable costs and losses as a result of the change to the network. In 9987. And what is the position you are now seeking other words, EWS would not receive compensation in respect of G9? from any G9 change, neither would Network Rail, (Mr Oatway) I am merely seeking that the neither would any other party. undertaking that was expressed in the previous exhibit we were looking at applies, and it applies equally in relation to G9. 9982. And the potential unfairness of that was 14 recognised by the Promoters, was it not, in the other Bell to Department for Transport, Crossrail—Register of place, and an undertaking was given in respect of the Undertakings, 21 January 2008 (LINEWD-103 05A-018) predecessor of G9, which was G5? 15 Committee Ref: A57, Correspondence from Bircham Dyson Transport to EWS Ltd, Crossrail Bill:– Part G and 13 Compensation, 26 February 2008 (LINEWD-103 05A-019 competent authorities (LINEWD-103 05A-015) Committeeand -020) Ref: A57, Correspondence from Department for Committee Ref: A57, Condition G9—Changes imposed by – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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9988. And do you believe there are other parts of the network, being a change which does not fall within Network Code which Crossrail can perfectly well use paragraph (a) above, which has lasted or is likely to without having any need to have recourse to last for more than six months.” I believe there could condition G9? be disruptions caused by, for example, temporary (Mr Oatway) Not if it does not want to avoid paying speed restrictions, weight or gauge restrictions which compensation, yes, there are, which is G1, which I will not last for six months and therefore will not be outlined earlier, which is the part of the process which compensatable under the network change process. I I assumed, once I got the G5 undertaking back in the think we need to take this a fraction slower. You have other place, that they would use. got on the board the definition of ‘network change’ and it is right, is it not, the Committee should know, 9989. CHAIRMAN: Mr George, what is all this that, where there is a network change, then about? This is interruption of use of the track because compensation is payable, the problem being that in there is access work or infrastructure changes going (b) one of the categories which is excluded is a change on, is that what it is? where it has lasted, or is likely to last, less than six months. It has to be lasting more than six months to 9990. MR GEORGE: It is entirely about count as the network change under (b)(2)? compensation for losses to other operators caused by (Mr Oatway) That is correct, yes. the construction activities of Crossrail, and the general principle accepted by the Promoters is that 9993. We see from the bottom of the page that that we and other operators should be compensated. It is includes temporary speed restrictions. Are you just to make sure that the words, ie the principle, do anticipating temporary speed restrictions, weight take eVect. As I say, there are simply the two matters restrictions, gauge restrictions as a result of, and which we are asking for comfort on. The first is G9 during the course of, the construction of Crossrail? will not be used as it could be said: “Oh, well, this is (Mr Oatway) We have experienced similar an authorisation of Parliament, it will all be done disruptions many times over similar big major under G9”. We believe that is not the intention of the projects that take place on the railway network, for Promoters, which is why they gave their undertaking example, the West Coast, as we have mentioned below; we simply want the reassurance that there is earlier as one example. an undertaking that they will not use G9. To use G9 would be incompatible with the policy they stated, that these works should be done but not at a loss to 9994. Now, say they were to last for four or five us. In other words, if there are costs, they should be months or right up to five months, 30 days, those costs of the project, not costs of others. I do not temporary speed restrictions and weight restrictions, believe, as I say, there is going to be any great dispute even though they might cause a loss to EWS, would on that particular issue, but that is the simple point. not qualify as a network change?

16 (Mr Oatway) That is correct. 9991. The second point is another point relating to compensation, and for this purpose could we put on 9995. What has happened in other railway schemes the screen, please, EWS 31. about this question of temporary speed restrictions lasting less than six months? 9992. This is where your skills, Mr Oatway, are (Mr Oatway) Within other schemes that have been needed to explain the concept of the network change promoted by third parties on the network, and I will and the particular provision of the definition of a refer to the Channel Tunnel Rail Link, when that network change which you consider, as I understand project was being first kicked oV back in the mid- it, to be inappropriate in the case of Crossrail and, 1990s, the Department at that time agreed for a therefore, ought to be disapplied. special schedule to be implemented into each aVected (Mr Oatway) Yes. I set out in this exhibit several train operator’s track access agreement which would instances where I anticipate that curtailment or ensure that, even if works were done which did not serious disruption to EWS’ business will be caused meet the definition of network change, those works during the construction phase of Crossrail but which would still be compensated as if they were a I anticipate are likely to fall outside the standard network change. industry railway compensation regimes. I call this a non-compensatable disruption. You can see on that, and I will draw your attention 9996. So, in that case, there was no need to raise the to (b)(ii) of the definition of network change, that it matter before any Select Committee because the says there “any change to the operation of the Department took their own initiative and announced 16 that the matter could go into the access agreements (LINEWD-103 05A-021) and they were put into the access agreements? Committee Ref: A57, Non-compensatable disruption – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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(Mr Oatway) That is correct. costs, direct losses and expenses as a result of the construction? (Mr Oatway) Absolutely. It takes nothing away from 9997. What then happened in respect of the East the burden of proof that is on the person suVering the London Line? loss that they need to provide suitable back-up (Mr Oatway) Since that time, and CTRL is the only evidence that those losses have been suVered. project where that mechanism has been used where a specific schedule has been inserted into each operator’s track access agreement, but normally, 10001. You simply seek a bespoke regime which since that date, and particularly with projects that are caters for this category of loss which, otherwise, you built under the Transport and Works Order process, will not qualify for because of that definition of there is a specific protection put into the Transport network change? and Works Order which will ensure that, firstly, (Mr Oatway) Yes, I am seeking something similar to Network Rail would be compensated for the what is up on the screen. disruption that it pays out to other operators as a result of the changes to the network and, secondly, 10002. Now, it may be said that, if that is the standard and more importantly for train operators, that railway industry practice in that document we looked protection is directly enforceable by the train at, defining network change, why not simply rest with operator in the event that they do not receive the ordinary practice? Why is it that you are requiring compensation from Network Rail. a bespoke provision here in the case of Crossrail? (Mr Oatway) Because I believe that an inevitable 9998. If we could put up EWS33 to which I took the consequence of using the standard industry processes Committee in opening yesterday, this is a piece of will be that there will be gaps in those regimes which delegated legislation because Parliament decided it will mean that the operator will not be compensated did not want to deal with these rather more minor on a no net gain, no net loss basis, as the Promoter 18 railway works, that they should be done under the intends in its paper H2. Transport and Works Act of 1992, so they then went to a public inquiry instead of coming before17 10003. Could we then put up please EWS32. You committees of this House and that proposal have there shown the sorts of losses which might be contained, and we looked at it yesterday, in Schedule included in heads of claim for disruption which 11, paragraph 1(2), a definition of relevant costs. would, otherwise, be non-compensatable. Can you That is at page 2 of the document and at page 4, just take us through that. paragraph 19 is the appropriate provision making it (Mr Oatway) Yes, I have merely listed a few of the plain that all the costs, direct losses and expenses heads of claim which commonly arise in these sorts of incurred by construction were to be paid by the circumstances. As you can see, the first one there is Promoter. Is that right, Mr Oatway? loss of revenue from our trains that cannot even run (Mr Oatway) That is correct. When I see any at all or they have to be restricted in some way, for Transport and Works Orders of this nature, this is example, for weight or length so that we cannot carry the first schedule I turn to to see whether that the amount of goods that we normally carry and, protection is in there. If it is, that gives me a great deal therefore, we do not get as much revenue as we would of comfort that EWS can expect to be compensated do otherwise. Other forms are diversions where we on a no net gain, no net loss basis for the disruption might have to go over a longer route which means caused by the project. that we have to pay out more fuel costs, and they are rising all the time, train crew costs so that drivers 9999. We simply put this in as a sample because there have to be paid more for working longer and, if the are a whole number of other schemes which have other route is not electrified, we may have to provide been promoted under the Transport and Works Act alternative locomotives to enable the train to operate where similar provision has been provided which has over those routes. given, therefore, comfort to other railway operators who, otherwise, might suVer loss. 10004. These are all types of loss which will be (Mr Oatway) That is correct. recoverable from Crossrail if they are as a result of network change, but simply will not be recoverable in 10000. Now, tell me, so far as proving loss is the case of those temporary speed restrictions and so concerned, will it still remain for you to prove, and it forth if they last for less than six months? may be diYcult, that you have actually incurred (Mr Oatway) That is correct, assuming that we do

17 not use G9, yes. Line Extension) (No. 2) Order 2001 (SI 2001/3682) (LINEWD- 18 103 05A-026 and -028) (LINEWD-103 05A-024) Committee Ref: A57, The London Underground (East London Committee Ref: A57, Non-compensatable disruption losses – – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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10005. LORD JAMES OF BLACKHEATH: Is depends, in the case of disputes, on a determination there a problem in this insofar as you could ﬁnd procedure precisely to determine that matter. All we yourself with, say, a train which is inadequately are saying is that the six-month cut-oV is loaded, but you have not been able to meet the target inappropriate rather than, as your Lordship is doing capacity loading for that particular freight operation rather more fundamentally, saying that there may be and that, in those circumstances, you have the a fallacy in the whole system. opportunity to gain an unfair advantage by claiming compensation for what is actually a problem of your 10010. LORD JAMES OF BLACKHEATH:I marketplace at that time rather than something think the issue for me is just what exactly is the which has been imposed upon you and there is an oversight of scrutiny which is applied to the claims? opportunity to catch up with what you would have otherwise earned? 10011. MR GEORGE: Mr Oatway would be the (Mr Oatway) Yes, my Lord, that is always a danger. person to answer your Lordship on that. However, I go back to say that we have to prove the (Mr Oatway) Yes, my Lord, in previous cases, and loss at least beyond the realms of doubt. Otherwise, we have network changes going on all the time on the the Promoter or Network Rail, whom we normally railway across the network, we have put in a claim to claim these things from, require to see such evidence. Network Rail which is wholly substantiated in terms of how much cost we have incurred, et cetera, et 10006. MR GEORGE: Mr Oatway, can I take that cetera. However, Network Rail does not just take our one degree further and could we please put up word for it. They look at how the trains have been EWS31. Assume that the speed restriction or the operating up until the time of the disruption to form weight restriction has lasted for six months and two a view as to whether there is any problem with the weeks, then, if you were able to prove a loss, it would claim. For example, if we had had problems with be a network change and, provided you could prove loading and then suddenly a network change came your loss, you would be entitled to claim. Is that along and we thought, “Ah, we could probably get not right? some money back here which we’re not entitled to”, (Mr Oatway) Yes, that is correct. of course we would never ever do that, but just supposing that we did do that, Network Rail would 10007. And the point which is being put to you by say, “Well, looking at the trains that were operating Lord James is right, that, if you were to cheat, as it on the days before that, you already had these were, and it was not a real loss, then you would be problems, therefore, those problems pre-existed the getting away with it, but that would depend upon disruption and, therefore, we are not paying”. your making a claim which was a fraudulent claim and the onus would be on you in every case to show 10012. CHAIRMAN: Mr George, do you have a lot that, as a result of that speed restriction which had more questions? lasted for six months and two weeks, you had suVered a loss, and it would be perfectly open to 10013. MR GEORGE: I have no further questions others to say that there simply was not the market at all. there and you could not possibly have run the train and so forth, in which case you would not be entitled to your compensation. 10014. CHAIRMAN: In that case, this would be a (Mr Oatway) That is correct, yes. very suitable moment for a ten-minute break.

10008. LORD JAMES OF BLACKHEATH: How After a short break would that be observed and seen if anybody could intervene to make that counterclaim against the 10015. CHAIRMAN: Mr George, this evidence has claim? taken me slightly by surprise because, although paragraph 14 of your Petition does in fact, I think, 10009. MR GEORGE: My Lord, the point I am technically raise this point, there is nothing in the making is that this arises under the whole way in response document which deals with it at all, so I which the network change provision applies. If your have no idea what the Promoter’s position is on what Lordship is right, that there is a fundamental you are now asking for. At least I think I am correct deﬁciency and the whole scheme gives rise to in saying that. fraudulence, then that would be reason for not allowing a claim when it was for more than six 10016. MR GEORGE: You may be told that, my months or not allowing claims wherever there is a Lord, but it does not take the Promoter by any form network change. For instance, where there are new of surprise because, as I indicated to, I think it was, points put in and so forth, there is a system which Lord Brooke yesterday afternoon, before the House Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd of Commons we pursued a point on G5 in which we 10025. CHAIRMAN: Yes, but is it one of the succeeded and the undertaking was given. exhibits?

10017. CHAIRMAN: It may not take the Promoter 10026. MR TAYLOR: It is. Here we have by surprise, but it did take us by surprise and we have paragraph 6.3 on page 4 of Information Paper H2 got to get our heads round it. So far as I am which relates to railway matters and compensation. concerned, I read these things and it has taken me by The principles to be applied on compensation were surprise. I did not know anything about this at all. clariﬁed before the Select Committee in the other Never mind, go on. We will get to the bottom of it. place by a reference to three principles, ﬁrstly, that Mr Taylor? industry mechanisms will apply whether the access option or the Bill powers are used. Now, Mr Oatway, Cross-examined byMrTaylor you wholeheartedly support, do you not, the application of industry mechanisms? 10018. MR TAYLOR: Mr Oatway, just to begin (Mr Oatway) Absolutely. with some questions about the evidence you gave relating to EWS’s access option, I think you said that 10027. The second principle is that, where an the access option that EWS holds for the majority of industry mechanism for compensation exists, it will its paths will expire in, I think you said, 2015. Is be used, and again that is a principle which you that right? wholeheartedly support, is it not? (Mr Oatway) By December 2015, that is correct, yes. (Mr Oatway) Well, with the exception of the gaps I It is an access contract rather than an option. have raised in my evidence, yes.

10019. Sorry, I am using the wrong phrase. So the 10028. So there are industry mechanisms that you are access contract that you currently hold to be able to unhappy with? operate trains on the network for the majority of (Mr Oatway) No, the industry mechanisms are there your paths expires before Crossrail opens? to cater for the normal running of the railway, the (Mr Oatway) That is correct. day-to-day options and changes by Network Rail. When there are speciﬁc additional huge projects, 10020. So you would need a new access option to be third-party projects, which relate to changes in the obtained in order to be running trains on the network railway, then those mechanisms were not intended to that would be running at the same time as Crossrail meet those particular types of arrangement, which is trains? why we needed the extra protections, as we have (Mr Oatway) Yes, a new access contract. pointed out, in the Transport and Works Orders, for example. 10021. So the points that EWS is making about the requirement to provide infrastructure now relates to 10029. So you are not happy about the application of the protection of paths in an access option which industry mechanisms to large projects and you would EWS does not yet have? not want them to be applied? That is what you are (Mr Oatway) Yes, that is correct. saying? (Mr Oatway) Well, the industry mechanisms for 10022. MR TAYLOR: Let us turn away from that large projects go far beyond just compensation. What then and19 move on to questions about compensation. I am really trying to point out is the fact that the Can we start please by looking at Information Paper Promoters have said that we can get compensated on H2 which we have already had attention drawn to a no net loss, no net gain basis, but, where industry today. We can see the general approach that is mechanisms exist, they will be used. Well, if the being adopted by the Promoter set out at paragraph industry mechanisms to which I have referred are 6.3 of H2 where, I think it was Mr Elvin, but I cannot used, it will not result in us being compensated on a quite remember, it was a while ago now, July 2006, no net loss, no net gain basis, so I am just seeking to but where clariﬁcation was provided— plug that gap, as I coined it earlier.

10023. CHAIRMAN: Mr Taylor, which of the 10030. I am trying to understand whether you are exhibits is this? saying to the Committee that industry mechanisms should be used or should not be used. I thought that 10024. MR TAYLOR: This is Information Paper you had said in answer to the questions I put to you H2. in relation to the ﬁrst principle at paragraph 6.3 that 19 you wholeheartedly supported the application of (LINEWD-IPH2-005) industry mechanisms. Crossrail Information Paper H2—Railway Compensation Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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(Mr Oatway) Yes, as far as they go, yes. made it perfectly clear that it wishes to take into account the result of the consultation process on 10031. There is a qualification to it now, is there, “so changes to the competent authority change far as it goes”? arrangements within the Network Code, has it not? (Mr Oatway) Yes, and I think that is recognised in (Mr Oatway) It mentions it there, yes, that is right. the third bullet point. Where the industry mechanism does not exist, one has to be drawn up and the 10037. Yes, and am I right in thinking that that principle of no net benefit, no net loss will be applied consultation process is not yet concluded? and that is what we are talking about here. (Mr Oatway) Yes, it has not been formally consulted yet with the industry. It has been discussed within the 10032. Where an industry mechanism does not exist? working groups of which I am a member. (Mr Oatway) Yes. 10038. If we turn then please to your exhibits,20 10033. Well, we will come on to see whether industry EWS30, which is at 05A-019, the concern that EWS mechanisms exist or not. Unlike in relation to the has regarding the potential use of the G9 mechanism points you raise about infrastructure, I have not seen is that it does not have compensation attached to it. anywhere in the exhibits provided to the Committee Is that right? an undertaking written down as to just what it is (Mr Oatway) Yes. precisely that you are seeking in terms of a form of words in relation to compensation matters. Am I 10039. So, if that mechanism were changed so that right in thinking that there is not one before the G9 could be used, but compensation would be Committee? payable, that would meet EWS’s concerns? (Mr Oatway) I believe that that is the case. (Mr Oatway) Yes, if we did get compensation, but there would be no reason for using G9 if there was 10034. So what exactly is the form of words that you compensation because you could just use G1 because are seeking then in terms of undertaking? that is the normal one you get compensation from. (Mr Oatway) Well, what we are seeking, in line with the Promoter’s third principle of compensation, 10040. But, to answer my question, if G9 were EWS seeks an undertaking from the Promoter that amended so that compensation were payable if it was she will develop, and operate, a bespoke utilised, that would meet EWS’s concerns in this compensation regime to cover all other losses which matter, would it not? are not covered by network change or any other (Mr Oatway) If the discussions are concluded along standard industry compensation mechanism the lines that they are being discussed at the moment, described. and I have to say that compensation is only likely to be repaid in G9 if Network Rail receive it from the 10035. If we have a look at the transcript, then we third party who are doing the promoting, then it will have the words that you are seeking, so thank you be paid out to the train operators. If Network Rail very much for that clarification. Let us turn please to does not receive that compensation, then it will not be this issue about G9 first before we move away from paid out to the train operators. That is the way the the page in front of us, and we can see at the bottom discussions are going at the moment. I have got no of page 4 of Information Paper H2 a reference to an certainty that Network Rail are going to receive any addendum dated January 2008 which explains that, compensation from the Promoter for Crossrail, all I “The railway industry is currently discussing have to go on is what my contract says at the applying suitable compensation arrangements to moment. My contract says at the moment G9 does ‘competent authority change’ under the Network not have compensation attached to it. Code”, and that is this point about G9, is it not? (Mr Oatway) Yes. 10041. We have got in front of us on the screen a letter dated 26 February 2008 to Mr Smith, who we have just heard from, from Paul Lancaster at the 10036. The addendum goes on to explain, “The Department for Transport. He discusses the issues competent authority change, with compensation relating to G9. He identifies three options at the very attached to it, is a potential means by which the bottom of the first page of the letter. If we could go works approved in the Crossrail Bill could be to the next page of the letter, please, which is at undertaken. This may prove preferable to amending 05A-020. There are three options. The first is to Part G as described in this paper. The Promoter will invite the ORR to impose the change to the Network be considering this further in line with the assurance detailed above in paragraph 6.3 to use industry 20 Transport to EWS Ltd, Crossrail Bill: Part G and compensation mechanisms—in this case an emerging Compensation, 26 February 2008 (LINEWD-103 05A-019 mechanism—where possible”. So the Promoter has Committeeand -020) Ref: A57, Correspondence from Department for – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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Code detailed in the previous paragraph, been telling us, and this is in 31, that network change notwithstanding objection. The second is to explore does not include works that last for less than six the use of G9 but with compensation payable—this months. Are you going to come to this? was, in fact, prompted by the current discussions in the rail industry at this stage in relation to passenger 10045. MR TAYLOR: I am coming on to that. My train operating companies about developing Lord, my understanding is that the point about G9 compensation provisions—or, three, to rely on Bill and the point about network change are two separate powers. He goes on to say this: “We say in H2 that we points. The G9 point relates to the ability for will use industry mechanisms as far as possible and so somebody to argue that because there has been a rather than resorting to 3, in other words the Bill change in the law certain changes have to be made to powers, we feel bound to explore 2 first, that is the use the network and where those changes occur, no of G9, but with compensation payable. In doing so compensation is currently payable under G9. So the principles of H2 will continue to apply on paying what the concern that EWS has, and I hope I compensation, i.e. the principle of no net benefit and summarise this correctly, no doubt I will be corrected no net loss will be applied”. He goes on to say: “We if I get it wrong, is that some bright spark might stand would not use G9 to avoid the payment of up and say, “Well, the Crossrail Act has changed the compensation in accordance with H2 and would not law. We’ve got to introduce all these changes to the seek to use as a precedent the non-payment of network, but no compensation is payable for your compensation for other projects and works loss as a result because we invoked G9”, that is the undertaken in G9. I hope this clarifies the position”. concern. What Mr Lancaster has explained in his letter is that that concern is groundless because if G9 10042. The Department’s position could not be is invoked compensation will be payable applying the clearer, could it, if G9 is to be used, it will be used on principle of no net benefit and no net loss. That deals the basis that compensation will be attached to it with that. applying the principle of no net benefit, no net loss? (Mr Oatway) But G9 does not have compensation 10046. CHAIRMAN: I do not understand this. We attached it, as we saw from my earlier exhibit. It may are not talking about changes of the law, we are have compensation attached to it in the future; those talking about the limitation to works that last for discussions are still ongoing. If you look in (i) that more than six months, which is in the definition of you just read out, those discussions are ongoing for network change. changes to the Network Code which, at the end of the day, did not go through. I have got no certainty that 10047. MR GEORGE: Can I interpose to make this G9 is going to have compensation attached to it. clear. Mr Taylor has got it right, we are seeking two What certainty have I got. I am just looking for quite diVerent matters through this particular certainty that I am going to get compensation on a no witness. One of them concerns G9, which is in Exhibit net loss, no net gain basis. That is all I am looking for. EWS-27, and that is the point which21 Mr Taylor is cross-examining on at present where we have an 10043. Mr Lancaster, writing on behalf of the undertaking at present that G5, which was the Department, has written a letter to you saying that predecessor of G9, will not be used. We are simply we will use industry mechanisms as far as possible. If concerned that the Department appeared to be we use G9, we will apply compensation on the basis saying, “Well, we might use it but it would be in of the principle of no net benefit and no net loss. That rewritten terms”. That is a quite separate issue from meets your point, does it not? the issue to which your Lordship has just referred, (Mr Oatway) But Mr Vadgama wrote to us only a which is the six month provision under network month previous to that saying that the Promoter has change—that is an entirely separate point which we agreed an undertaking that they will not invoke the are taking, but we do take two points and Mr Taylor Network Code condition G5, that was unqualified. It is perfectly fairly, if I may say so, exploring the first did not say Network Code G5 if compensation is not point, which is the G9 point, which does not have attached to it. We had an unqualified undertaking in anything to do with the six month period. the other place that G5, now G9, would not be used. When I saw the letter of 26 February when G9 starts 10048. CHAIRMAN: The trouble is we have not to be looked at again, that caused me some concern, been warned about this. which is why I am here today on that point. 10049. LORD YOUNG OF NORWOOD GREEN: 10044. CHAIRMAN: Mr Taylor, as I have said Mr Oatway, what I cannot understand is you before, this whole matter is new to us. As I expressed concern about a February letter invoking understand it, if you look at G9 it refers, amongst 21 other things, to network change and Mr Oatway has competent authorities (LINEWD-103 05A-015) Committee Ref: A57, Condition G9—Changes imposed by – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd the unqualified use of G9 and you said that gave you reasonably be expected to be incurred by the train cause for concern and I can understand that, but now operator as a consequence of the implementation of you have an unqualified commitment that if that G9 the proposed change”. It is costs that could be is used you will be compensated on a no net gain, no reasonably expected to be incurred as a consequence net loss and somehow you seem to discount that. Is of the implementation of the network change. Is there no legal standing in that letter of 26 February that right? signed by Mr Lancaster on behalf of the Crossrail (Mr Oatway) Yes, subject to benefits, yes, which is Bill team? the G2.3 bit. (Mr Oatway) My Lord, I believe that the Department for Transport are not a party to the 10055. If we turn back to the first page then, we need Network Code, it is part of a contractual relationship to understand what a network change actually is. between EWS and Network Rail and, indeed, all You have helpfully set out the definition on this page. other train operators and Network Rail. It is part of I think it is probably only (a) and (b) of the three sub- our legally binding access agreements. Therefore G9 paragraphs that we need to concern ourselves with. at the moment does not provide for compensation, so Let us start with paragraph (a) of the definition of I do not believe it is in the gift of the Department to network change: “A network change includes any say it can use G9 with compensation because I do not change in or to any part of the network including its believe the Department can change G9 to be able to layout, configuration or condition which is likely pay compensation. materially to aVect the operation of the network or trains operated by a train operator on the network”. 10050. That letter of 26 February you regard as not a Changes to the track layout will fall within (a), yes? satisfactory guarantee? (Mr Oatway) Permanent changes, yes. (Mr Oatway) That is where my concerns were first alerted to that point because I thought it had been addressed in the other place when we had the 10056. All of the sort of infrastructure changes that unqualified undertaking that G5, now G9, would not we have been talking about, the various sidings, the be used. junctions, the dive-unders, all of those would be network changes? 10051. Mr Oatway said why did you not use G1 (Mr Oatway) If they are built, yes. rather than G9 where apparently this problem would not occur. I wonder if you could address both those 10057. Any losses resulting from speed restrictions points. associated with the introduction of that infrastructure or any other aspect of the operation of 10052. MR TAYLOR: Let me see if I can cut the network which results from the introduction of through it in this way. Mr Oatway, I am instructed to those new infrastructure items would be give an undertaking to the following eVect that the compensatable under the Network Code as it Promoter, if it invokes the G9 mechanism, will pay currently exists, yes? compensation on the basis of the application of the (Mr Oatway) If they are ongoing and continue for principle of no net benefit and no net loss. Does that longer than six months, yes, and they are permanent. meet your point? (Mr Oatway) To EWS? 10058. No, that is not right, is it? 10053. Yes. (Mr Oatway) No, I think it is right, yes. (Mr Oatway) Yes, that would. 10059. Under the definition in (a), a network change 10054. Thank you. Let us move on to the second22 includes any change in or to any part of the network aspect of the compensation matters that you raise, including its layout, configuration and condition. If I which is this point about network change. Can we am building, let us say, the Acton dive-under and the turn to Exhibit EWS-31 and it is on page 05A-021. introduction of that dive-under results in speed Let us turn to the next page first, page two of the restrictions and the like, any losses that EWS incurs document, to paragraph 1.4. In 1.4 you set out the as a result of the introduction of the dive-under will provision that triggers the payment of compensation be compensatable whether or not the work goes on under this part of the Network Code. It explains that: for six months or more, whether or not the temporary “The amount of compensation payable shall be an speed restrictions are for six months or more because amount equal to the amount of the costs, direct losses it is associated with a change in or to any part of the and expenses, including loss of revenue which can network, that is right, is it not? 22 (Mr Oatway) Yes, you have to have the change in the (LINEWD-103 05A-021) network which aVects the operation, yes. Committee Ref: A57, Non-compensatable disruption – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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10060. It must therefore be right that most of the (Mr Oatway) Not under the network change, no. works associated with Crossrail result in changes to layout of configuration of the network and so will fall 10066. That is because the industry process accepts, into paragraph (a) of this definition? does it not, that works of that nature should not (Mr Oatway) I do not doubt that for one minute. attract compensation? (Mr Oatway) Not under network change, no, not normal day-to-day works undertaken by Network 10061. Therefore, most of the speed restrictions and Rail to renew and maintain its network. the like that you raise your concerns about will relate to changes in or to any part of the network falling 10067. That is because the industry recognises that within the definition of network change and so, there has to be an element of give and take between therefore, will be compensatable whether or not there the train operating companies and those who need to for a day or six years. carry out work to the network to enable it to continue (Mr Oatway) Yes, I am not concerned about the to operate. most, it is the others which fall within the definition (Mr Oatway) Yes. of (b). 10068. Let us move on to the next point. You also raised concerns about Schedule 4 and Schedule 8. 10062. It is (b), it is changes to the operation of the network which arise as a result of Crossrail but not from changes relating to the layout or configuration 10069. CHAIRMAN: Mr Taylor, before you leave or condition of the network that you are concerned that point, on the Great Western Main Line there is with? going to have to be installation of overhead electric (Mr Oatway) Yes, can I give an example? cables and from what I have seen elsewhere in the country, this disrupts traYc because all the bridges have got to be changed in order to accommodate it. 10063. Yes, please. That is not a change to the layout and configuration (Mr Oatway) For example, if an over bridge is being or condition, it therefore falls within (b). Is your aVected, which is not part of the network, it may point that you have just got to put up with that? It will cause speed restrictions to be placed on the railway go over a long distance on the Great Western Main below which is not being aVected, which is not part of Line. the network change. There might be temporary restrictions in place while the work is going on on the 10070. MR TAYLOR: My point in relation to bridge above to ensure the safety of the workers electrification is that it is a change in or to any part of working on that bridge. Those speed restrictions the network and falls within (a). It is a complete would slow down any trains going underneath and change to the configuration of the network because it therefore delay them potentially, lose their paths extends electrification on the Great Western Line further on on the network. That is what the (b)(ii) is into locations where it is currently not present. saying. If those disruptions do not last for six Perhaps Mr Oatway would give us the benefit of his months, then they are not compensatable under the views as to whether or not electrification works fall network change. in (a). (Mr Oatway) I think you were doing very well, Mr Taylor! 10064. The network change provisions at the moment in respect of that sort of example are defined 10071. LORD YOUNG OF NORWOOD GREEN: in paragraph (b) and we can see that where there are I am struggling a little bit. Who is the arbiter between changes to the operation of the network to those categories? It is obviously quite important. accommodate the sorts of works that you have just Who decides in—some of them appear to be fairly given an example of, in order for compensation to be black and white—the grey areas of (a) and (b)? Who attracted the work will be likely to last for more than is the arbiter? six months. (Mr Oatway) If there are any disputes between the (Mr Oatway) The change to the operation of the train operator and Network Rail over what is or what network has to last for more than six months. is not a network change and whether or not it has lasted for six months or not—

10065. A present, if Network Rail wanted to do some 10072. The ﬁrst point? repair to a bridge and it took three or four months, (Mr Oatway) That would go to ﬁrstly an industry no train operator would be compensated for losses committee called the Access Disputes Committee associated with that sort of work? who would convene a panel to hear the case. If one or Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd other of the parties were not happy with the 10080. So, again, where disruption is caused through determination of that panel, then they can appeal to possessions, where disruption is caused so that the the OYce of Rail Regulation who has the ﬁnal say. performance regime is aVected, the industry accepts that compensation should not be payable in respect 10073. BARONESS FOOKES: You sit on that, do of losses where at least 12 weeks’ notice is given? you not? (Mr Oatway) For renewal and maintenance works, (Mr Oatway) I sit on the Access Disputes yes. Committee, my Lady, and I may be fortunate enough to be chosen for a particular panel or not as the case 10081. Again, it is an example of the industry may be. acknowledging that there has to be an element of give and take between those who need to maintain the 10074. LORD YOUNG OF NORWOOD GREEN: network and introduce changes to the network and I hope you declare an interest! those who operate on it? (Mr Oatway) Oh, yes, lots of interests have to be (Mr Oatway) Yes, that is right. There is an declared.23 expectation by train operators that Network Rail must carry out renewal and maintenance works on its 10075. MR TAYLOR: Can we turn to page two of network which will cause levels of disruption. EWS-31. I want to move away from the deﬁnition of a network change and on to deal with Schedule 4 10082. MR TAYLOR: To provide an analogy, it is and Schedule 8 of compensation. These are a bit like my next door neighbour deciding that he is provisions which under EWS’s Track Access going to re-roof his house and for a number of days Agreement make provision for compensation for while the work is being done I am disturbed in the variation to services caused by disruption arising enjoyment of my residential property next door. I from possessions on the network. cannot sue him, I just have to put up with it, just as (Mr Oatway) Yes. he will have to put up with it when I re-roof my house. That is the analogy here, is it not? 10076. Also in Schedule 8 the Track Access Agreement makes provision for a performance 10083. BARONESS FOOKES: But if he builds a regime and so there is compensation payable between big extension, is that not rather diVerent? Network Rail and EWS for delays to trains and cancellations. Indeed, EWS may have to pay money 10084. MR TAYLOR: Again, my Lady, in that if one of its trains causes delays or cancellations to situation I cannot sue him if he disturbs me unless it other operators under that schedule, is that right? gives rise to a nuisance of some kind which is (Mr Oatway) Yes. actionable. You take the point, the industry processes allow for an amount of give and take, do 10077. In relation to each of these aspects of they not? compensation, your point of concern is that the (Mr Oatway) For day-to-day maintenance and mechanisms that are already in place industry-wide renewal of the network, yes. in Schedule 8 and Schedule 4 of compensation is an industry-wide mechanism, is it not? 10085. What you are seeking through the (Mr Oatway) Yes, but they vary between freight and undertaking that you want is the introduction of passenger operators, they are distinctly diVerent, compensation for losses which the industry whereas the main principle is passenger operators get mechanisms already acknowledge should not be compensation for possessions and freight operators compensatable. do not. (Mr Oatway) Yes, that is correct.

10078. Your concern here is that if 12 weeks’ notice 10086. So rather than seeking to apply the industry or greater of a possession is given, then there is no mechanisms which acknowledge this element of give payment or compensation to EWS? and take, you are saying, “No, no, no, we don’t want (Mr Oatway) That is correct. to apply those mechanisms any more”, are you not? (Mr Oatway) No. What I am saying is I am pointing 10079. That identiﬁcation for a 12-week period is out that the industry mechanisms are not adequate in industry-wide in relation to freight operators, is it certain cases and, therefore, to meet the Promoter’s not? H2 declaration in its third bullet in paragraph 6.3, (Mr Oatway) These provisions apply to all freight which says, “Thirdly, where an industry mechanism operators, yes. does not exist and one has to be drawn up, the 23 principle of ‘no net beneﬁt, no net loss’ will be (LINEWD-103 05A-022) applied. So if an industry mechanism does not Committee Ref: A57, Non-compensatable disruption – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd 24 provide to provide no net benefit, no net loss industry mechanisms as they apply at the relevant compensation, one will be drawn up”, I am merely time. asking for one to be drawn up. 10095. LORD YOUNG OF NORWOOD GREEN: 10087. Mr Oatway, industry mechanisms do exist. I would not say it is explicit, but if you are confirming We have got the industry mechanism in Part G, that you are meeting Mr Oatway’s concern that which we have been through, and we have got should that mechanism change you will apply it— industry mechanisms in Schedule 4 and Schedule 8. The mechanisms do exist, but within the mechanisms 10096. MR TAYLOR: I am confirming exactly that. they acknowledge that there are elements of loss which should not be compensatable. 10097. LORD YOUNG OF NORWOOD GREEN: (Mr Oatway) That is correct, but that does not meet Thank you. the Promoter’s stated aim to compensate all parties aVected on a no net loss, no net gain basis. You are basically saying that because our standard industry 10098. MR TAYLOR: One last point. You mechanism is not adequate, that is our fault and, mentioned the CTRL position. The CTRL was therefore, you are not going to plug the gap. In promoted, I think, in the early 1990s, am I right. previous precedents, as we have put out in the (Mr Oatway) That is correct, yes. Transport and Works Act Orders, that has been acknowledged and the gap has been plugged. I am 10099. When did Part G of the Network Code first merely seeking to use those precedents here to ensure come into existence? that continues. (Mr Oatway) 1994.

10088. These aspects of compensation in relation to 10100. Am I right in suggesting that the CTRL Part G of the Network Code are currently the subject scheme came forward in advance of Part G of the of industry-wide consultation, are they not? Network Code? (Mr Oatway) Yes, they are being discussed in a (Mr Oatway) I believe it was enacted in 1996. working group for freight operators. 10101. So far as Transport and Works Act Orders are 10089. If the industry, through that process of concerned, when you were giving your evidence-in- consultation, decides to alter the mechanisms for chief you said that whenever you get hold of a TWA compensation and, indeed, perhaps even to extend it Order the ﬁrst thing you do is to look for the in the way that you are suggesting, the commitment particular clause that you are interested in to see in Information Policy Paper H2 to apply industry whether it is there or not. mechanisms would apply to any such extended (Mr Oatway) Yes. system, would it not? (Mr Oatway) It may do. 10102. Can I take it from that, that particular clause is not always included in the Transport and Works 10090. Let us move on from that. Act Orders? (Mr Oatway) Commonly it is now. It was not so in 10091. LORD YOUNG OF NORWOOD GREEN: the past and we had to raise concerns and give Are you giving an undertaking that it deﬁnitely will evidence in front of the Transport and Works apply if the industry mechanism changes as a result of Inspectors to try to petition for it. those discussions? 10103. MR TAYLOR: Thank you very much 10092. MR TAYLOR: My Lord, I think that indeed, Mr Oatway. undertaken has already been given. That was in the paragraph we looked at before. Re-examined byMrGeorge

10093. LORD YOUNG OF NORWOOD GREEN: 10104. MR GEORGE: Just two matters. First of all, I am just clarifying that is the case. going back to the beginning of your cross- examination, you were asked about your existing 10094. MR TAYLOR: If we go to Information access contract and you said that it would expire in Paper H2 and to paragraph 6.3 that we were looking December 2015. When an access contract expires, at before on page four, it is the second point: “Where what is the ORR’s policy? an industry mechanism for compensation exists, it 24 will be used”. That is intended to relate to the (LINEWD-IPH2-005) Crossrail Information Paper H2—Railway Compensation Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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(Mr Oatway) There is a presumption that your uncertain at the moment because of the ﬂexibility the existing access rights will roll forward subject, Promoter has asked for. We do not know exactly obviously, to making an application and the ORR which works are going to be built so I cannot really approving that. Indeed, I think the ORR has say they would all fall into that category. Giving an assumed existing rights will roll forward in its honest guess, I would say it would certainly be in that decision on the access option for Crossrail. category, the eighties.

10105. If we could please put up EWS31, page one, 10111. At least the eighties, and it could be as high you were asked a question to the25 eVect that those as ninety? provisions there for network changes apply in (Mr Oatway) It could be, for most of the works. ordinary circumstances and you agreed that they do apply in ordinary circumstances. So far as the 10112. LORD YOUNG OF NORWOOD GREEN: proposal to construct Crossrail, do you regard that as Thank you. ordinary circumstances for which the existing standard industry provisions were designed? 10113. CHAIRMAN: The undertakings relate to (Mr Oatway) No, I think Crossrail is an exceptional ﬁve/six speciﬁc works. They do not look to me as circumstance. It is an exceptionally huge project that though they are anything out of the ordinary in terms certainly does not come along every day. of engineering on the railways. Are they? (Mr Oatway) The dive-under and the junction works 10106. There has been a reference made now to some at Heathrow, my Lord, are quite massive. The other consideration in the industry to changing the works, the four that Mr Smith outlined in his industry mechanisms but are they being changed in evidence, as he said, are not huge works, but there are order to cater for the ordinary circumstances or for 24 works in the Crossrail Bill and there could be other the very special circumstances of a new railway such works done as well which we do not know about. as Crossrail? (Mr Oatway) They are mainly looking at the 10114. Which are the works that are going to require ordinary processes, although they have touched change eVectively in the law in order to deal with your upon, as Mr Taylor highlighted, that they are looking compensation point? at modifying G9 to attract compensation, but those (Mr Oatway) Well, we believe that the whole discussions are at an early stage. Crossrail Bill, because it is a lawful enactment, Network Rail could be directed to do these network 10107. Are you aware of any Transport and Works changes under G9 and, therefore, not pay any Order for major rail works that does not have compensation for them. However, now we have the compensation clauses in it similar to those to which undertaking from the Promoters that that will not be you have drawn attention in respect of the East the case, categorically I am quite happy on that point. London Line? (Mr Oatway) Yes. 10115. So what is left in terms of this large project that is not covered, either by the undertaking or by 10108. That example? the existing machinery of the industry? (Mr Oatway) They are ones that are promoted by (Mr Oatway) Just any temporary disruptions that Network Rail itself. If you ask if there are any third occur which last less than six months, which party Transport and Works Orders then I am not individually might be quite slight but collectively, aware of any at the moment. over the course of a ten-year project, would add up.

10109. MR GEORGE: Thank you very much. 10116. But I imagine that this happens all the time. If you have re-conﬁguration of the West Coast Main 10110. LORD YOUNG OF NORWOOD GREEN: Line it is a massive project, and there must be a large Just to get a sense of the proportion of your concerns number of changes in conﬁguration of the track and on compensation. What is the area of dispute that we that sort of thing over a long period of time to which are talking about? If I said, looking at it, it looks the industry processes apply, do they not? like—I am guessing—95 per cent of problems that (Mr Oatway) Some of those will be network changes might occur from either the network changes will be and others will be day-to-day maintenance and covered under (a), would I be exaggerating? renewals. There are often lengthy debates with (Mr Oatway) I would say it would at least be in the Network Rail over whether a possession is a network eighties, if not higher, although we do not know change possession, in which case they pay exactly what works are going to be built, which are all compensation, or is a maintenance and renewal 25 possession, in which case it does not attract (LINEWD-103 05A-021) compensation for freight operators. Those debates Committee Ref: A57, Non-compensatable disruption – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 The Petition of English Welsh & Scottish Railway Ltd go on all the time and that is one of the reasons why of giving evidence in many major public inquiries on the industry mechanism is being re-looked at at the transport matters, is it normal for Petitioners or moment by the group that was referred to, to see if objectors to do the design for works which they want that sort of murkiness can be cleared. included or do not want included? (Mr Garratt) Yes, it is normal to produce designs 10117. CHAIRMAN: I see. Thank you. which eVectively describe the functionality of the track layout, if that is what it amounts to, that is 10118. MR GEORGE: My Lord, that concludes the concerned, yes. evidence which I put before you. 10127. And to what level of detail would you expect 10119. CHAIRMAN: Thank you, Mr George. I do a design to be done such as we are talking about here? not know what Mr Taylor, or you, Mr Elvin, want to (Mr Garratt) To a level of detail which shows in two do about this? dimensions, preferably three, the track layouts, so it is possible to calculate the way trains will move in and The witness withdrew out of the terminal, let’s say, so that capacity issues can be reasonably explored. 27 10120. MR ELVIN: I propose to call Mr Berryman shortly just to deal with the costs issue, particularly 10128. LORD BERKELEY: If we can turn to page the point that my Lord, Lord Brooke raised this 68, paragraphs 9168 and onwards. I am not going morning, which, if you can read my handwriting, I to ask you to go into details of how many trains and have had it photocopied. whether there is one too many or one too few. However, I believe you were at a timetabling group meeting yesterday. Could you just tell the Committee 10121. CHAIRMAN: Let’s start with Mr whether in your view the Promoters have accepted Berryman then. the ORR decisions in respect of a number of freight trains on the two main lines? 10122. MR GEORGE: The only matter which slightly concerns me is Mr Garratt is here, your 10129. CHAIRMAN: I do not think he can answer Lordships will recall, from the Rail Freight Group, what they have accepted. and he simply has to be re-examined with any questions from your Lordships, and I know he has a 10130. LORD BERKELEY: Perhaps I could ask pressing problem for this afternoon so I was him to explain, my Lord Chairman, what happened wondering whether the ten-minute slot would be there and whether the timetable work that is enough for Mr Garratt, who I know was in proceeding is based on the ORR’s determination? diYculties. 10131. MR TAYLOR: My Lord, it is normal for re- 10123. MR ELVIN: My Lord, I have absolutely no examination to address matters that were raised in objection to that. cross-examination, and I am afraid I did not raise this in cross-examination of Mr Garratt. 10124. CHAIRMAN: We will do that then, although that deprives us of the opportunity of 10132. CHAIRMAN: I do not think you can take wishing Mr Berryman a very happy birthday while he this point any further. is in the witness box, and I gather we should have done the same to you yesterday, Mr Elvin. 10133. LORD BERKELEY: Thank you, my Lord Chairman. 10125. MR ELVIN: Thank you.

10134. Finally, on28 the next page, page 69, paragraph MrMichaelGarratt, recalled 9175, could you, Mr Garratt, just clarify what you Re-examined byLordBerkeley were saying about the Ipswich-Peterborough- Nuneaton route? Are you suggesting that the Committee should require that to be upgraded at any 10126. LORD BERKELEY: I have questions for particular time -- you, Mr Garratt, from page 66 of Tuesday’s transcript, when Mr Taylor questioned you about the 26 10135. CHAIRMAN: I can answer this: we are not level of detailed design required before a Petitioner empowered to do so. could ask for a piece of work to be included, paragraph 9151. Mr Garratt, from your experience 27 Taylor; Mr Garratt] 26 28 Taylor; Mr Garratt] ParaTaylor; 9168, Mr Uncorrected Garratt] Transcript, 29 April 2008 [Mr Reuben Para 9151, Uncorrected Transcript, 29 April 2008 [Mr Reuben Para 9175, Uncorrected Transcript, 29 April 2008 [Mr Reuben Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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10136. LORD BERKELEY: That is what I was were. The timetable is eVectively the combination of going to suggest. That is all I had to cross-examine train movements and infrastructure, and the one on. without the other makes no sense, and we are therefore unable to assess what impact withdrawing Examined byTheCommittee any infrastructure measures would have. It would definitely have a detrimental eVect, and I think it is 10137. CHAIRMAN: Mr Garratt, you are an expert fair to say that that evidence there with the on modelling? infrastructure measures was what Crossrail was (Mr Garratt) On forecasting. relying upon in describing no net impact, no damage. That is my position. The forecasts themselves are 10138. LORD YOUNG OF NORWOOD GREEN: drawn— I am lost now. Is there a diVerence? (Mr Garratt) It depends what you are modelling. 10144. I am not asking you what Crossrail thought; I am asking you what the ORR did. Did they accept 10139. CHAIRMAN: Do you not do that with a those figures? model? (Mr Garratt) Yes, I believe they did. (Mr Garratt) Yes, but I am trying to distinguish between detailed timetable modelling, and 10145. And they also, as one of the inputs, although forecasting. their decision was not based upon inputs, accepted the infrastructure changes? 10140. Which was it that the ORR did? Was that (Mr Garratt) That is right. forecasting? (Mr Garratt) Can I explain? 10146. They included them? (Mr Garratt) Yes. 10141. Yes, you will have to, because I do not understand. 10147. So both those elements are in? (Mr Garratt) If I can just briefly explain the process (Mr Garratt) Both those elements were in the agreed we went through and you can stop me if I am forecasting and modelling exercise, so the ORR repeating myself, we produced forecasts for a number accepted them, I think, because there was no of trains by origin, destination, time of day and so contention between the parties in that respect. It was forth. a co-operative exercise.

10142. This is EWS? 10148. They then proceeded to reach a decision not (Mr Garratt) No, this is on behalf of the Rail Freight on inputs but upon output? Group and the other Petitioners which I am (Mr Garratt) That is correct. representing. That forecast was agreed by Crossrail and Network Rail and so forth, and half the exercise 10149. And I think you told us the other day, and it was conducted by Crossrail between October and is here somewhere, that you are not an expert on December last year to assess whether those trains modelling for PPM? could be accommodated. It has been Crossrail’s (Mr Garratt) That is correct. contention for some time that the impact of Crossrail’s trains and infrastructure measures would, 10150. They presumably had to do that? as it were, compensate, and that there would be no (Mr Garratt) They will have to. The exercise is as yet net harm to the ability of the network to undone, that is right. accommodate future freight growth. That timetabling exercise and, as it were, my forecast, were introduced as evidence to the ORR hearing by the 10151. The ORR must have done that? Promoters and supported by the DfT. (Mr Garratt) No, it is for Crossrail to do that.

10143. The number you saw in my presentation two 10152. The ORR did no modelling at all? days ago of a demand of 396 trains, and the number29 (Mr Garratt) No. The Promoters are doing all the that could be accommodated if Crossrail did not modelling and presenting those results to the ORR. happen of 358 and if it did happen 357, which is Someone I am sure will tell me if I am wrong in that eVectively the same number, were all agreed. The respect. point I was trying to make from that evidence was that this is the only timetable exercise in town, as it 10153. Well, you raised this and I am asking you 29 about it. Did the ORR have before them a model (LINEWD-34 05-033) which dealt with output in terms of PPM? Committee Ref: A52, Crossrail and freight capacity modelling – Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

834 committee on the crossrail bill: evidence

1 May 2008 The Petition of the Rail Freight Group

(Mr Garratt) The only Railsys modelling, the months. I would like to say that that was an exercise performance modelling that has been done so far, which could be repeated quite quickly to assess was the version that produced I think a 71 per cent whether less infrastructure was required, but the PPM, but that is not based upon all the existing Promoters chose not to do that. Certainly I want to infrastructure because it did not include the Barking- convey that. Gospel Oak measure. It included the rest of the infrastructure. 10161. But you told us the other day that your area of expertise does not include modelling PPM? 10154. Are you saying that they had no model which (Mr Garratt) That is correct. Absolutely. led them to their PPM demand of 92 per cent? (Mr Garratt) I think that is probably fair comment, 10162. So you had no part in leading them, except for yes. They simply asked the Promoter to be able to some of the inputs, to produce the figure of 92 per deliver 92 per cent PPM. I really do not want to cent? mislead anyone here -- (Mr Garratt) That is right. My part was in providing the demand, if you like. 10155. MR TAYLOR: I think I might be able to assist here. The position before the ORR was that 10163. Which was one of the inputs? there had been a first iteration of the Railsys model (Mr Garratt) Yes. which had the inputs that you have been discussing with Mr Garratt, and that work had identified a PPM 10164. So you have nothing to say about the figure of figure of 71 per cent. 92 per cent, which is what they insisted upon? (Mr Garratt) No. I just think that is clearly a railway 10156. CHAIRMAN: Yes, I remember that. industry aspiration, and if that level of quality of service is not achieved then less trains can be 10157. MR TAYLOR: There was then discussion of accommodated on the network. what the PPM figure needed to be in order for there to be an eYcient running of the network, and during 10165. LORD BROOKE OF ALVERTHORPE: that discussion a number of figures were referred to, As I understand it, it is like the Government target for but you will recall reference to Mr Morris from Cross CO emissions to be achieved by 2010. London Rail Link who gave evidence to the eVect (Mr2 Garratt) I must say I am more optimistic about that 95 per cent was what they really needed to aim the 92 per cent than the CO targets! for, and that 92 per cent was really the lower end of 2 the range of acceptability from CLRL’s point of 10166. LORD BROOKE OF ALVERTHORPE: view. So the 95/92 per cent PPM figures are not the But it is a target in that sense. result of the modelling, the result of the modelling to date has shown 71/72 per cent, but the 92 per cent 10167. MR ELVIN: I was going to try and assist my figure that has been adopted by the ORR is the figure Lord, Lord Brooke’s point— that the ORR thinks will result in an acceptable operation of the railway, so that is the figure that has to be achieved by the tweaks, if I can call them that -- 10168. CHAIRMAN: I wanted to know what role Mr Garratt played in all of this? 10158. CHAIRMAN: Yes, I know, but what I am trying to get at is how did they reach it. 10169. MR ELVIN: I understand that. Perhaps I can answer Lord Brooke’s question after lunch. 10159. MR TAYLOR: How did they reach the 92 per cent figure? You have already had some evidence 10170. CHAIRMAN: Mr Garratt, I am very today, my Lord, regarding— grateful to you.

10160. CHAIRMAN: Well, Mr Garratt wants to get The witness withdrew away. Firstly, Mr Garratt, you had no part in helping them to reach it except producing some of the inputs. 10171. CHAIRMAN: Just before we adjourn, Mr (Mr Garratt) No, but, bear with me, I would like to Elvin, I think the Committee would like to know make sure that people do understand the timetabling before the end of the day about infrastructure exercise which led to that consensus. It is a diVerent managers. How do they get appointed? Is this under exercise. It is a traditional railway planning exercise the Railways Act? Is this under ROGs? which takes a timetable and attempts to ﬁt more trains into that timetable, and that was acceptable to 10172. MR ELVIN: It is in accordance with the both sides as a way forward. It took a couple of deﬁnition— Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

committee on the crossrail bill: evidence 835

1 May 2008 The Petition of Trustees of the SS Robin Trust

10173. CHAIRMAN: Are they able, as I think must but I would like to interpose the SS Robin Trust for be the case, to contract out maintenance work? a very short statement on a matter that we, as a Committee, have been to see and I think they have 10174. MR ELVIN: Yes. I can show you the something very brief to say. Is that right? provisions later on today. 10185. MR LEWIS: Indeed, my Lord, that is right. 10175. CHAIRMAN: If you are not an I am here to deal briefly with the return of the Petition infrastructure manager like TfL, can you then come of the Trustees of the SS Robin on behalf of the along and say: “I want to do one of the contracts”, or Promoter, and I say “briefly”, my Lords, because I “I want to be able to contract it out”? Are there am happy to say that we have managed to reach powers to do that? agreement in this matter and shortly I will ask my learned friend, Mr Robin Knowles QC, who is here 10176. MR ELVIN: The answer to that is, on the to represent the Trust, to read out his statement. That dispute we are having as to who should be the statement has been agreed between the parties, my infrastructure manager, it is up to the infrastructure Lords. manager as to what is contracted out. If Network Rail is the infrastructure manager, it makes the 10186. Before that, insofar as it may be helpful for me decisions as to who to contract the works to. If TfL to jog the memories of the Committee, you will recall is the infrastructure manager, it will make the of course from your site visit that the SS Robin, if we decisions as to who to subcontract to. can put up the plan, is, my Lords, the oldest- surviving complete steamship in the world, located30 10177. CHAIRMAN: Yes, but at the present here at the west end of North Dock which is part of moment do we know who is going to be the the West India Quay dock complex in the Isle of infrastructure manager? Dogs, just west of the DLR bridge (indicating). Now, the Crossrail station, my Lords, is to be built 10178. MR ELVIN: That was the point of the here (indicating) and, as part of those construction debate yesterday, my Lord. That is an issue which works, you will see that a dam is to be erected here remains to be resolved through the processes I was (indicating) and the current proposal is that the boat describing yesterday. will have to be moved slightly westwards here (indicating), but that of course creates a challenge 10179. CHAIRMAN: Can you come back to this because the normal practice is that commercial and bring us up to date with what is the total vessels need to be maintained and dry-docked at least situation, because I think we are not entirely clear once every two and a half years. This water will be what the powers of the infrastructure manager are. locked in as this part of the construction works for some five years and the Trust understandably had 10180. MR ELVIN: There are provisions in the some concerns and we had to have some negotiations regulations which I can show you. with them in relation to that, my Lords.

10181. CHAIRMAN: If you could tell us about that 10187. Well, I am pleased to say, having given that before the end of the day, it would be very helpful. background, that it gives me great pleasure to confirm that we have managed to reach an agreement 10182. MR ELVIN: There is, and I will have it with the Trust and an acceptable solution to both distributed it now just so you have it, the parties which, we are confident, strikes an Department’s note on clauses 40 and 41 which I will appropriate balance between ensuring that the refer to when I close at the end of both cases today; I Crossrail works are able to go ahead, but doing so am going to refer to the note so I thought it was without prejudicing this most important element of probably better if I circulate that in advance. You British naval history, so, with that introduction, my also have the note on costs which I will ask Mr Lords, I pass the baton to my learned friend. Berryman to speak to in due course. 10188. CHAIRMAN: And it does not upset your 10183. CHAIRMAN: I think we can start again at heritage grant? 2.30 pm. 10189. MR LEWIS: My learned friend will be in a The Committee adjourned from position to give you further details on that. The 1.07 pm until 2.30 pm application is in train, my Lord, and we can understand that the first stage of that application will 10184. CHAIRMAN: I trust that the parties dealing 30 with freight and that sort of subject will forgive me, Construction Method Site Plan (TOWHLB-XR6-002) Crossrail Ref: P67, Isle of Dogs Station—Scenario 2 Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

836 committee on the crossrail bill: evidence

1 May 2008 The Petition of Trustees of the SS Robin Trust be dealt with later in the year, but I think that my 10197. CHAIRMAN: She deserves it. learned friend is in a better position to update you on the position in relation to that. 10198. MR KNOWLES: Perhaps I can respectfully agree with that remark as well. Now, the vessel is going to be moved from West India Quay so that 10190. MR KNOWLES: My Lords, to deal with works may be undertaken on it. If the works, as that briefly, the answer is no, it does not upset the currently envisaged, can be completed by the year path which is an adjusting path of engagement with end, then the vessel will be brought back into West the National Lottery. May I put the position to the India Quay. It will then be locked in for the duration Committee shortly, and, as my learned friend of the works. In the event that the vessel, however, indicates, in agreed terms. cannot return in time to be locked in for the duration of the works, it will be brought back to an alternative, 10191. Your Lordships are aware that the Petitioner suitable mooring until it can return to West India was previously before the Committee on 19 March. Quay after the Crossrail works are complete. The Petitioner asked the Committee to take no action then other than to defer the Petition for a period 10199. It will be no surprise that these arrangements pending further work which the Petitioner and the involve material financial support, and that includes Promoter were to undertake during that period. The support from the Promoter. It is right to note that Committee kindly agreed. The context of that request there are default arrangements in the event that the was that the Petitioner and the Promoter were works needed are found to be so great as to be out of embarked on what were then constructive reach financially, but clearly that is an equation that discussions, supported by survey work and by also involves the Lottery and other fund-raising examination of the financial options and relocation initiatives. options. The Committee was informed that there was potential for the discussions to resolve the concerns. 10200. So the Committee is simply asked now to receive the short report that I give in agreed terms, to note the fact of that agreement and the Petitioner will 10192. As your Lordships have heard, agreement has then withdraw its Petition. It is important to been reached and this could scarcely be more recognise that there are uncertainties ahead, not least important or welcome. As the oldest surviving in terms of the extent of the works needed and also complete steamship in the world, your Lordships will including the risks that are inherent even in moving recall that the SS Robin is one of only three vessels in the vessel a reasonable distance for works to be London listed by the National Register of Historic undertaken, but the Petitioner and the Promoter Ships as a ‘Core Collection’ vessel, the highest have, by working together, achieved the ends that category for vessels of extraordinary maritime each has responsibility for and, I would respectfully importance, reflecting Britain’s world-class naval submit, the public interest is served by a Crossrail history. The other two in London in that class are that is built and a vessel that is retained rather than Cutty Sark and Belfast and, as the Chairman of this lost. Committee noted on the last occasion, the disaster that happened to Cutty Sark placed further emphasis 10201. Quite apart from the national heritage at on resolving the present problem. stake, the period from the construction of the Robin, which was in Blackwall on the Isle of Dogs in the late 10193. CHAIRMAN: It is being repaired though, is 19th Century, through to the construction of it not? Crossrail in the 21st Century represents three centuries of British engineering history. The Petitioner is committed to ensuring that the medium- 10194. MR KNOWLES: Yes, so we may have the and long-term future of the vessel lies in educational best of all outcomes across the board. To give a and other public use. There is, moreover, the further indication elsewhere in the United Kingdom, prospect of some future collaboration between the Core Collection includes the Victory, the Great Petitioner and Promoter towards that end. Britain, the Discovery, and the Mary Rose; we are in that league. 10202. My Lords, thus far I have spoken in terms that are agreed between the Petitioner and the Promoter, 10195. CHAIRMAN: And not Warrior? but, at the risk of just taking a few more seconds, I should like briefly, with your leave, to add the following. The Trust would wish to pay tribute to the 10196. MR KNOWLES: I cannot be sure, but I professionalism and courtesy it has enjoyed in its think Warrior is on the list. dealings with Crossrail employees, led by Mr Tony Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

committee on the crossrail bill: evidence 837

1 May 2008 The Petition of Trustees of the SS Robin Trust

Walters, Chief Engineer, with the Promoter’s 10207. CHAIRMAN: It is not immediately clear to Parliamentary Agents, Winckworth Sherwood, and, me whether there is going to be a clause stand-apart further, with the Department for Transport, provision in the recommittal, but, if somebody represented by Mr Colin Poole. The Trust further moved an amendment to leave out clauses 40 and 41, acknowledges its deep gratitude to the City firm, the Minister could make a statement which Travers Smith, which has acted for the Trust pro bono incorporates what you have put in this note. It must in the contract work involved over the last weeks. I go on the record somewhere. record my own respect, as counsel, for the careful and constructive part played by my learned friend, Mr 10208. MR ELVIN: Well, my Lord, that note is a Gwion Lewis, and might I also thank your formal submission to the Committee and I was going Lordships. It was the time that you graciously to adopt it as part of my submissions in due course, allowed to the parties and, I might say, the words of but it is an explanation for your Lordships. As I encouragement that you thoughtfully used on the last understand the matter to the extent that this issue is occasion that have helped enable this outcome. It is raised, the real issue is not really clauses 40 and 41 as not an overstatement to say that this issue has been a a whole, but it is clause 41(3) which is the real issue, material stage in saving the Robin for the nation. The the power of direction. Robin will leave shortly for the works to be undertaken and that day and the day of its return 10209. CHAIRMAN: Yes, it is. should be very great days indeed. I thank your Lordships. 10210. MR ELVIN: So it really turns on that, and your Lordships will see from the note that the principal concern is because there are interactions— 10203. CHAIRMAN: I do not think words of I mentioned this, I think, last week—with the PPPs gratitude will ever go amiss and I think those who and London Underground which are unregulated by have received them will be very much appreciative. the Railways Act, there are concerns that those Thank you very much. contracts which do not enjoy the jurisdiction of the ORR and the Olympics duty could otherwise obstruct Crossrail actually happening and that, we 10204. MR LEWIS: My Lords, can I also take the consider, would be contrary to the will of Parliament opportunity to express the Promoter’s gratitude to in enacting what will be the Crossrail Act in due the Trustees and to my learned friend for the course. That is the principal reason, as I said, I think, constructive manner in which this matter has been last Tuesday, for the inclusion of the power. approached. Their commitment to the cause, my Lords, has been clear from the outset and I think it is 10211. CHAIRMAN: But I think it would be a good fair to say that a fair amount of midnight oil has been thing if somebody like Lord Bassam were to repeat burnt this week in an eVort to resolve the Petition in something along the lines of this statement on the time for our appearance today. This is a good-news floor of the House so that it will be in the oYcial story for Crossrail, my Lords, and one of the headline record and people can refer to it. I do not know who achievements of the hearings that have taken place is going to put down an amendment, but, I dare say, before your Lordships’ House and, as far as the you can find somebody. Promoter is concerned, we wish to put it on the record that we do see this very much as marking a 10212. MR ELVIN: It certainly will not be me. change in our relationship today from one of Promoter and Petitioner to one of two partners 10213. CHAIRMAN: Well, thank you very much working in collaboration to secure a long and for that; that is very helpful. successful future for the SS Robin. I am grateful for the opportunity and the time you have given us to 10214. MR ELVIN: My Lord, I think we have resolve it, my Lords. reached the stage where I was going to call Mr Berryman (a) to answer Lord Brooke’s questions on 10205. CHAIRMAN: I think it is double eulogies all costs and (b) for Lord Berkeley to ask some questions round! Thank you both very much. Mr Elvin, I have of him. been looking at your note on clauses 40 and 41. It seems to me that this is the sort of thing that ought to 10215. CHAIRMAN: By all means. be dealt with in the public bill committee stage. 10216. MR ELVIN: I had agreed with Lord Berkeley that I would tender Mr Berryman for cross- 10206. MR ELVIN: With respect, that was our view examination in due course. I think Mr George had as well, my Lord. quite a long go last week, but I said to Mr George that Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

838 committee on the crossrail bill: evidence

1 May 2008 Promoter’s Closing on Railway Issues clearly Mr Berryman is tendered for cross- 10222. In reality, what do you think the likelihood is examination should he have any further matters that of having to do all or the majority of the works that he did not raise last week. are stipulated? (Mr Berryman) I think it is very likely. If the traYc MrKeithBerryman, recalled patterns continue as they are now, if we can make an agreement with Heathrow Airport Limited to use Examined byMrElvin their private railway and so on, which we fully expect to do, I would anticipate all these works, plus some 10217. Mr Berryman, the only point I want to take up others will be done as well. with you is the issue of costings for the infrastructure works. We have produced, as I say, in my best writing, the figures for the infrastructure works and 10223. We are on the very narrow territory of they include one item of works requested by the Rail expecting to have to do all or most of these works but Freight Group, which is Chadwell Heath—I do not still wanting to retain some flexibility. I would like think it is requested by EWS—and the West Drayton you to make it clear to your Lordships why it is you loop, which in fact comprises two of the six items consider that flexibility is desirable. (Mr Berryman) I think the first thing to say is some sought by31 EWS. The total cost of all of those items is £445 million of which two-thirds is covered by the of the works which are required may be replaced by cost of the Acton dive-under and the Heathrow other works conceivably. I think you have already Junction. heard that the current timetable modelling shows (Mr Berryman) That is correct. that we are only achieving about 74 per cent PPM. We hope to improve that obviously and two of the 10218. Can I just ask you the question firstly, are the main things which we will do to improve that are to costings of the infrastructure works which are listed improve the kind of rolling stock that is used on the in the Bill included in the estimates which have led to railway and, secondly, to improve the maintenance the funding of the project? standards, in other words the quality of the (Mr Berryman) Yes, they are. maintenance which is done on the railway. We may also need to do further infrastructure works over and 10219. Are they simply included as costings or are above the works which are set out in this schedule. If there funding arrangements for contingency and the you take as an example the Chadwell Heath loop, I like? think this is quite an unlikely example, but take it as (Mr Berryman) There are indeed contingency an example, we may find it necessary that on the east arrangements, a number of diVerent aspects of the side of London instead of one loop at Chadwell contingency. It is something referred to often as Heath, we need two loops. It is perfectly possible optimism bias in the Treasury documents. I think the within the existing railway alignment and can be done optimism bias is to allow for people like me who are using the permitted development rights of Network unrealistically optimistic in how much it will cost to Rail. What that would mean is we would not need to build works. build a Chadwell Heath loop. I only put that forward as a potential example. I do not have any realistic 10220. That removes an element of optimism from expectation that that will be the case, but it is the kind the figures, does it? of thing that could happen and may happen as the (Mr Berryman) Indeed and these figures already design and the modelling is further developed and include that being taken into account. refined.

10221. Very well. In response to my Lord’s question 10224. Mr Berryman, are there any examples here of earlier, are any of these infrastructure items or any of infrastructure which are designed for a specific the items specifically ring-fenced within the funding purpose? Ignore Acton dive-under for the moment? at the moment? (Mr Berryman) Hanwell Bridge sidings is an example (Mr Berryman) No, not in that way. The reason for where it is primarily there to deal with two flows: one that is primarily because a lot of the works, and is what we call the bin liners, the rubbish trains which particularly on the surface works, will be combined go up to Calvert and the other one is an aggregate or and done at the same time. If you take as an example a stone flow which goes down to a stone terminal the West Drayton loop, that would probably be done down towards Brentford. There is no certainty about at the same time as the electrification is done, and so the long-term future of the bin liners going to Calvert; although these figures are used to build up the the pit there that they are currently using is almost estimate, they do not necessarily relate to the contract full. There are other pits nearby which may get packages that will be let when the time comes. planning consent, so that flow may continue, but it is 31 also conceivable that it does not continue and there 20080501-005) would then be little point in building that rather Crossrail Ref: P69, Note on infrastructure works (SCN- Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

committee on the crossrail bill: evidence 839

1 May 2008 Promoter’s Closing on Railway Issues expensive £40 million of work if there is no likely ﬂow go through the Timetable Reference Group in any for it. It is that type of issue where we want to return event. In that case, all the Petitioners will become ﬂexibility. aware of it.

10225. Just to go a step further, are these 10231. I just wondered whether there had been any infrastructure works the only works that would be discussions on this. required which would have an impact on freight (Mr Berryman) No, my Lord. capacity? (Mr Berryman) By no means. I was quite surprised to 10232. MR ELVIN: Mr Berryman, indeed under the see that neither of the Petitioners had included the change control mechanism and the access option any Maidenhead works in their Petition. These works will variation in the assumptions and the modelling, cost about £80 million and will eVectively be essential which includes the infrastructure works, have to be to allow freight trains to continue to use the timetable agreed with the industry or by the independent paths that we have already identiﬁed. There are a approval of the ORR? couple of other smaller points. It kind of seems a bit (Mr Berryman) That is correct, yes. The whole point arbitrary to me, which things are included and which of the change control mechanism is to allow that to things are not. happen.

10226. The Maidenhead works, I think you described 10233. There is a proper mechanism for managing by those last week, they are the works which allow you consulting the industry and then the ORR if to turn the trains around at Maidenhead without necessary for varying those assumptions in due having to take out a freight path, is that right? course? (Mr Berryman) Yes. There are two or three issues at (Mr Berryman) That is correct, yes, and the ORR Maidenhead. We need to turn trains. There is also a would carry on a consultation exercise themselves in siding which comes down from Bourne End and that case. Marlow where trains for that need to turn. There are currently five platforms, so we could turn our trains 10234. LORD SNAPE: Just on the costings that you there quite happily without doing any extra works produced between you, were they available before? but it would obstruct freight paths if we were to do Did you do them yourself or have you consulted that. outside? (Mr Berryman) My Lord, I rang up our quantity 10227. That, of course, would cause a conflict and surveyors in the morning break and got the figures. might bring in the change control mechanism. Of course they are part of the much bigger estimate (Mr Berryman) In that case it certainly would. for the whole project.

10228. Those works, if you are not going to have a 10235. As the result of a phone call you can problem with the change control mechanism, would conﬁdently predict that all this work will cost £45 have to be carried out? million? (Mr Berryman) That is right. (Mr Berryman) It is not as the result of a phone call, my Lord, it has been work that has been going on for 10229. Mr Berryman, I do not have any further several years. The phone call was merely to elicit the questions on those. I do not know if my lords have information from the people who had been doing any questions on those speciﬁc issues. the work.

Examined byTheCommittee 10236. You did not think you were going to be asked that? 10230. LORD YOUNG OF NORWOOD GREEN: (Mr Berryman) I did not, no, my Lord. These possible variations and the reasons why you need the ﬂexibility et cetera, have you discussed any 10237. CHAIRMAN: Are these ﬁgures going to get of these possibilities with the Rail Freight Group on to the record in some shape or form? because one of the comments made this morning was that they were not aware of any alternatives? 10238. MR ELVIN: I can submit them as a formal (Mr Berryman) No, my Lord. Just to make it clear, exhibit. I am perfectly happy to do that. we have not got any alternatives on the table at the moment. I am just raising the possibility that further 10239. CHAIRMAN: It might be of some interest. design work and further modelling work may throw up the need for a slightly diVerent approach in some 10240. MR ELVIN: We will have them typed up areas. Of course, if that was the case, then that would then at least they can be legible to all. Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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(Mr Berryman) Can I make the point, my Lord, that some works which need to be done to make these are ﬁrst quarter 2007 prices, they are not the connections here and there, is absolutely unchanged out-turn costs. from that which exists now.

10241. CHAIRMAN: No, it says so. 10247. LORD BROOKE OF ALVERTHORPE: So why the fears? 10242. MR ELVIN: The final question I have is in (Mr Berryman) The fears from the West Country relation to Acton. Why was Acton included as a people? commitment whereas the others have not been? (Mr Berryman) I think the operation of the Acton Yard and the way that works has been a long- 10248. Yes and from south Wales. A lot of people standing problem for the railway industry. You have been lobbied. cannot move Acton Yard to somewhere else, it is a (Mr Berryman) My Lords, I am sure they have. I big facility, it has to stay where it is. There really is have even been down there myself to try and explain not any alternative in that particular location that is to the regional assembly that there really is nothing to conceivable which would get rid of the conflicting worry about. The problem is a bit more fundamental. movements that occur there. They occur there now. The train service down to that part of the world at the They will be made worse when Crossrail is built if we moment and in the last few months and in the last few did not do that dive-under. The reason for agreeing years even has been what we call rubbish, I think that to give an undertaking to do that is there really is no is the technical term for it. People have a natural fear alternative on that particular one. that anything which interferes with what is already a rubbish service can only make it worse. My answer to 10243. LORD SNAPE: How many movements are that is, yes, the service is very poor and it needs to be we talking about in and out of the yard then? improved, but those improvements are independent (Mr Berryman) A substantial number, my Lord, it and irrespective of the Crossrail works. would be 30 or so a day at least. Each movement occupies about five or six minutes, so it is quite a big 10249. So their fears are groundless? determinant of the performance of the Great (Mr Berryman) Their fears are groundless. Western now.

10244. CHAIRMAN: They are long trains, are 10250. MR ELVIN: If I can run with this point, the they not? majority of those who have petitioned on those issue (Mr Berryman) Some of them are very long trains, have withdrawn their Petitions? my Lord, some of them are the longest trains on the (Mr Berryman) They have, that is correct, yes. UK network. 10251. And in terms of the issue that the freight lobby 10245. LORD BROOKE OF ALVERTHORPE: raises, which is the question of infrastructure works As well as the interest of the Rail Freight Group and being required additional to the directions made by EWS, I expect the train operating companies would the ORR, have the passenger TOCs made any similar also have a very signiﬁcant interest in this as we have representation? already had a number of representations and (Mr Berryman) The answer to your question is no. certainly in the Second Reading there was a great The passenger TOCs are in a rather diVerent position deal of anxiety expressed about whether or not the because most of their franchises will expire before the fast trains coming from South Wales in the West Crossrail service comes into operation. I would not Country would suVer interference when the Crossrail like to speak for them, of course, but they are work got underway. Can we be assured that they will probably less exercised by this issue than the freight have sight of this information? operators. (Mr Berryman) My Lord, that is a slightly diVerent issue. As you know, the Crossrail trains to south Wales and the West Country use the fast lines 10252. MR ELVIN: And the bottom line ﬁgure through this area. should be 455, not 445. Thank you.

10246. MR ELVIN: I do not think you mean 10253. MR GEORGE: Mr Berryman, going back to Crossrail, Mr Berryman. where I started, so far as this ﬁgure, which I (Mr Berryman) I am sorry. The express trains which understand is no longer 445 but 455, the 140 is go down to south Wales and the West Country, we already committed in the sense that you have use the fast pair of lines. None of these works is on the undertaken to construct the Acton dive-under. That fast lines, so their position, with the exception of is right, is it not? Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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(Mr Berryman) That is correct, yes. changes in freight flows which may aVect the necessity for some of these items. 10254. And so far as the 170, that is the work which you have said, I think, elsewhere that it really is 10257. Now, let’s look at the rubbish trains, because inevitable that something is going to have to be done so far as they are concerned they take rubbish from in that particular location within the limits of the Brentford area, do they not, and at present they deviation of that particular work? are taking it to Calvert in Buckinghamshire, and (Mr Berryman) Yes. That, of course, is subject to an when that particular location becomes full the agreement with Heathrow Airport Limited that we rubbish will still be coming from Brentford, because can run trains on to their network. Obviously it is Brentford area rubbish, down on to this line and commercial discussions with them are still going on, it may eventually have a diVerent destination, but it and the commitment to do that work would only be will still be rubbish which is causing the conflict with made if those discussions are fruitful and agreement other trains and which is going to require the works can be reached to run the trains down there. which have been identified which are the Hanwell Bridge sidings. 10255. When I was cross-examining you a week ago, (Mr Berryman) If the rubbish trains continue to go Day 21/8192, I asked you a question: “There is no up the line as you described up to Buckinghamshire evidence that the scheme could be achieved without or somewhere similar, then, of course, this siding will these key freight infrastructure works” and you be required. I understand the Calvert tip is almost replied to me: “Yes, you are absolutely right, there is full, and whilst I understand there is a high no evidence that that could be achieved without probability that another tip nearby will be opened up, doing the works which you have outlined”. Those it is not certain they need to get planning consent for were the works which I put to you. That was your that. So I will say it again, as things stand at the answer then and I do not understand you now to be moment we would envisage having to do all of these going away from that answer. works, and I do not think we have ever strayed from (Mr Berryman) No. The situation that you have just that suggestion in the course of these proceedings. described is exactly as it is.

10256. Can I just look for a moment at Hanwell, 10258. As long as we are quite clear on that. It is all where you say that the waste tip may be becoming full a bit like the Greenford tram which you introduced. and, therefore, that work might not be needed. When It seems to me, the suggestions for this rubbish that you yourself were giving evidence in relation to this “might” not be there, or there “might” be a matter, Day 21/8102, you said that there were two Greenford tram—they are really spectres of a most kinds of trains, stone trains and rubbish trains, and improbable sort. so far as those particular stone trains are concerned, (Mr Berryman) I could not agree more with you, Mr we can see no reason why they will not be continuing. George, they are improbable, but improbable things There are two sets of trains, one from Days, one from do occasionally happen and all I am saying is that, if Yeomans; they are trains which cross the lines and one of those improbable things happened, we would which will benefit from those particular works. Do not wish to be tied to doing a particular piece of you know anything to suggest that that flow of stone infrastructure which was described to solve a trains will not continue? particular problem which no longer exists. (Mr Berryman) No, there is nothing at all to suggest that, but the way those trains operate at present is the stone train comes from the West Country into Acton 10259. Can we now turn to timing? When Network Yard, it is then broken at Acton Yard and part of the Rail were here yesterday morning there were certain train goes back down to serve the terminals that you matters which were not yet resolved about have mentioned, and if that mode of operation infrastructure management, but it was agreed they continues then those movements will continue. But would have to be resolved very soon, as I understood there is another alternative in that the stone trains it by the end of this year, because you could not could come in directly from the west. I am not achieve the finalisation of the funding arrangements suggesting they will. I really want to go back to the of the contract until those matters had been resolved. point you made a few moments ago, Mr George, Is my understanding on that correct? which is that at the moment, as things stand now, it (Mr Berryman) Yes. is our full expectation that these works will be required to operate the railway, and that is what we expect to be building, but the point is there could be 10260. Tell me, when are you going to let the contract changes in operating patterns and there could be for Crossrail, if you achieve Royal Assent? Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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(Mr Berryman) For the construction? 10264. But BAA are not even here petitioning on that matter; you are working on a consensual basis with them. 10261. Yes. (Mr Berryman) We are in negotiation with them (Mr Berryman) It will not be a contract; it will be a about that matter, as to use of their track work. whole series of contracts. If we can achieve that suite of agreements which are needed by the end of this 10265. I am grateful, Mr Berryman. I know others year, as you have just described, we would be have questions but I am not going to trespass any expecting to let the contracts towards the end of 2009 longer on their Lordships’ time. with work to start in 2010. Cross-examined byLordBerkeley 10262. Now, if you are going to be finalising the contracts in 2009 you are going to have to reach a 10266. LORD BERKELEY: Thank you, my Lord decision pretty quickly, are you not, as to whether Chairman, for allowing me to come back. Mr you are going to be including the Heathrow access, Berryman, can we look first at the cost sheet we have that 170 million or so, or not? Decisions have got to been given? Looking at the four what you might call be made very fast, have they not? cheaper schemes, Chadwell Heath, West Ealing, (Mr Berryman) They have. In the case of the Hanwell Bridge and West Drayton, total cost £145 Heathrow access which is particularly relevant, the million, it is my understanding these are basically suite of agreements that I talked about includes an single or double pieces of track with sets of points at agreement for Crossrail to use the Heathrow Express each end, is that correct? track work and for a financial contribution to be (Mr Berryman) Not quite. Certainly that is the case made by BAA, so we would expect that that would be at Chadwell Heath. Also, it is a single piece of track one of those agreements which is made later this year, with points at both ends, about 750m long with and once that agreement is made then, yes, we would overhead electrification and some culverts and such be letting a contract for construction of these works. like which need to be remedied in that area. West I think it might be worth just mentioning that the Ealing is a single branch with just a single end and a intention is that Network Rail, who are the new platform refurbishment and so on, and West infrastructure manager already on the Great Western Drayton is a combination of those things. I think you and the Great Eastern would actually take are aware, as you are a civil engineer yourself, I know, responsibility for the management of those contracts Lord Berkeley, that the works particularly on on our behalf. railways are made much more complicated and expensive by the stageworks which have to be done. In other words, you have to move a bit from here to 10263. I am not concerned at the present moment here before you can do something over there, and with management: I am sure EWS will be concerned that is what brings the costs into some of these about who is managing but that is not my point. This relatively simple works. flexibility which has been dangled before the Committee as a reason for not giving us our 10267. Can I invite you to compare these costs with a undertakings is a flexibility which is only going to cost estimate with Network Rail that the rail freight remain for a very short while, because someone has industry did a few months ago to create a very similar to decide what is to be in the project so that there can loop up near Daventry to mitigate the eVect of West be the necessary competitive tendering and so forth Coast Main Line perturbations which came out at £4 for the contract, is that not right? million. You are not going to paint these rails out of (Mr Berryman) Yes, certainly in that case it is gold or anything, are you? It does seem very absolutely right. In some of the other cases, of course, expensive. the works are much more modest. But I put it to you (Mr Berryman) One of the features of projects in the the other way round. Would there be any point in us United Kingdom over the last 30 or so years has been building the Heathrow flyover if we could only get that they have significant cost overruns, and one consent to run no trains, or two trains an hour reason for that is frequently the budget costs are too perhaps, down the Heathrow branch, and two trains low. I spent my formative years in Hong Kong where an hour would be the same as the existing Heathrow we brought everything in on budget and I noticed Connect service? Clearly, until we have made that that one of the features of the Hong Kong system was agreement there is no point committing to build that adequate budgets were set in the first place, so we something. What I can tell you is if we do make that have regarded it—I regard it personally and the agreement we will be building the Heathrow access company regards it—as very important to set flyover or something very similar, subject to adequate budgets for the works. The £15 million we detailed design. put there, as I said, includes electrification, the Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 Promoter’s Closing on Railway Issues signalling of the loop, some relatively minor planning and access? I must say I think many of us infrastructure as well as the trackwork and so on. still remain a little bit confused. In your original evidence last Tuesday, paragraph 8783, Mr Elvin 10268. As does Daventry, of course. You mentioned suggested that the Rail Freight Group, my clients, the problem of stageworking. If these works did not was trying to seek to part from industry processes by get built as part of the main contracts that you have asking the Committee to ask the Promoters to build just described, how much more expensive would they speciﬁc works, and he did the same with several of my be to put in later? other witnesses as well. Would you not agree that (Mr Berryman) That is a very diYcult question to there are two parallel processes here: one is obtaining answer oV the top of the head. If you take the planning permission to build something, and the Chadwell Heath loop it would not really make any other is getting access rights to run the trains, and diVerence; you could do it later or at the same time they are completely separate—or they can be. with very little diVerence in cost. If you think about (Mr Berryman) I take it from that that what you the Hanwell Bridge sidings, the stageworks there are mean is that this Bill gives us the planning consent we incredibly complicated. You have to keep moving the need to build the elements of the works, and that is a tracks over one and putting some new points and separate process from the access rights which people crossings in and so on, and I think it would be can acquire to run over the works that are built. Just sensible to do that at the same time as the rest of the so I understand, is that the question? Crossrail works are done simply because you could make use of the same possessions; you could make use of the same methods of doing the work. But to 10273. Yes. answer your point in general is very diYcult because (Mr Berryman) In that case I do agree with it, yes. on a case-by-case basis it would be diVerent.

10269. DiYcult to estimate, or diYcult to build? 10274. But you will also agree that when the Bill (Mr Berryman) I have not had a chance to say this in started oV as a Hybrid Bill it sought both to give you this Chamber, my Lord, but in engineering planning permission and to give you access rights everything is possible; it is just a question of how through what we call the railway clauses? much it costs. (Mr Berryman) Yes, I guess you could say that, although there are others better qualified than me to 10270. LORD SNAPE: Not just engineering, of answer that, which is more of a legal point really. course! (Mr Berryman) So it would be a question of the 10275. Just taking you through that, last year details of the alternative way of doing things, I think. Government said, possibly as a result of industry pressure, that it would seek to operate through the 10271. LORD BERKELEY: Perhaps I could rescue industry processes and if it was satisfied it would Mr Berryman before we go any deeper in this. You withdraw the railway clauses. will recall that I and others from Rail Freight Group (Mr Berryman) Yes, that is correct. had a meeting with you and colleagues a month or two ago to discuss these works and there were some works where you put to us that there was still a lot of 10276. And so at that stage Crossrail were seeking design work to be done on the passenger side and it planning permission through the Hybrid Bill process, would be unreasonable to ask for a recommendation and access rights through the industry processes, from this Committee to ask the Promoters to commit assuming they came out right, as I think you put it? to those works because the design was being (Mr Berryman) Yes, that is right. completely altered, and one of those was Maidenhead, another was Slough and another one was Shenfield. Would you agree that you put that to 10277. And you are still seeking planning permission us, and would you accept that is the reason why we through the Bill, and that is right. did not make the list any longer at this stage? (Mr Berryman) That is correct. (Mr Berryman) Well, I am perfectly prepared to accept that, if you say so, yes, of course. 10278. The application for access rights to the ORR 10272. Thank you, Mr Berryman. That is all I have was based on the agreed timetable done on the basis to do on the works themselves. Could I now briefly of the works in the Bill, as you have confirmed and ask you to take us back to this rather vexed question other people have? we have spent a lot of time talking about in the last (Mr Berryman) Yes. In fact, not all of the works in day or two which is the question of permissions for the Bill but the majority. Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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10279. Of course, not all but the relevant? submission. Mr Berryman is giving engineering (Mr Berryman) Yes. evidence.

10280. And I think we have established in the last few 10288. LORD BERKELEY: Can I now move on to days that the ORR could still change the basis of his the question of timetabling, please? When you were determination by assuming other infrastructure, cross-examined by Mr George on Tuesday at more or less, and the resulting new timetable, but I paragraph 8190 you conﬁrmed that no timetabling think would you agree that if he did that he would work had been done to see the eVect of adding have to start his consultation process from scratch Crossrail trains to the existing network without and it would be a long-winded process? additional works being undertaken, and there is no evidence, and this is to do with a PPM of 92 per cent 10281. MR ELVIN: Lord Berkeley ought to or whatever, that this could be achieved without remember that, as we established before lunch, that doing the works which you have outlined, is that can only be done with the agreement of the industry correct? or the independent position of the ORR. (Mr Berryman) That is absolutely correct, and I could go a bit further than that and say some works would be deﬁnitely required to achieve that level of 10282. LORD BERKELEY: I entirely agree. reliability. (Mr Berryman) I was going to say exactly the same. 10289. Is the Promoter committed to accepting the 10283. LORD BERKELEY: Can I invite you to ORR decision, because I understand at a timetabling look at the hypothetical situation where, for some meeting yesterday that your people who were there reason, the ORR suggested or assumed—“assumed” said that they would wish to continue with the eight is a better word—that an extra piece of infrastructure trains an hour oVpeak rather than the six that the was required as part of his determination for which ORR put in his determination? What is the process, you did not have planning permission? going forward? (Mr Berryman) Yes. That is conceivable. (Mr Berryman) We would be still interested in running the eight trains per hour oVpeak, but the 10284. And the ORR, by saying that, would not give Regulator has made it quite clear that if we do that you permission to build that works, would it? we have to compete with other potential users of (Mr Berryman) No, that is correct. those paths to do so at the time, so this is not something that would be happening now. However, 10285. So you would have to go for either a change to the modelling that we are doing is still including those this Bill, which I would hate us even to suggest, Lord eight paths because we are obviously anxious, if we Chairman, or the Transport and Works Act or can, still to have them. preferably not do it and think of a diVerent way out? (Mr Berryman) There are three possible solutions 10290. Would it not be reasonable also to do a model that I can think of oV the top of my head. One is to round with six oVpeak trains an hour, as the ORR use the permitted development rights of Network has put in his determination? Rail, because obviously they would be a party to this (Mr Berryman) Indeed it would, although you will as the infrastructure manager and, as you are aware, recall that the ORR’s determination also suggested they have fairly extensive rights to do things to their that we should continue to model with eight trains network and to be given deemed planning consent to an hour. do that; the second is a Transport and Works Order; and the third is some rearrangement of the services or 10291. Yes, but that was not an exclusive suggestion. proposed services that are being called for. (Mr Berryman) No. Quite so.

10286. I accept that and that is ﬁne. What I would, 10292. Looking at other things in the model, you therefore, like to ask you is why you and the have heard evidence from Network Rail yesterday Promoters are seeking to suggest to the Committee and there is still debate going on as to who should be that a request for the Committee to require the the infrastructure manager in the tunnel. What is Promoters to construct certain works somehow your view of the problems that might happen with the invalidates the Petitioners’ wish to see industry timetable if there were a diVerent infrastructure processes followed? manager in the tunnel --

10287. MR ELVIN: Mr Berryman, just wait a 10293. MR ELVIN: We are going oV Petition now, moment. I do not think that is a question; that is a I am afraid, my Lords. This is just opportunistic submission, and I am going to deal with that by legal questioning by Lord Berkeley because Network Rail Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 Promoter’s Closing on Railway Issues made some points yesterday. This is not a part of trying to make, that, although the PPM is the RFG’s Petition. It certainly was not part of the case industry standard and is the only method we have got presented two days ago. at the moment, we would seek to improve on it rather than making it less— 10294. LORD BERKELEY: I thought I mentioned it. 10298. Finally, Mr Berryman, several members of the Committee have asked about how you are going to 10295. CHAIRMAN: Lord Berkeley, we may be achieve this change from 72 per cent performance on interested in this, but not in this context. the Great Western at the moment to 92 in the future by adding more trains, hopefully by adding the 10296. LORD BERKELEY: Thank you, Lord infrastructure, by seeing the installation by Network Chairman. Can I raise one or two other issues which Rail of a completely untried and untested signalling would have to be taken into account in raising the system called ERTMS. How are you going to PPM from 72 to 92. You stated two days ago that you achieve this? felt that the 92 per cent measure, the PPM method of (Mr Berryman) Well, it is my fervent hope that we do measurement, was not necessarily appropriate for not have any untried and untested systems anywhere Crossrail. What did you mean exactly? on the railway and certainly, if decisions are left to us (Mr Berryman) Well, the PPM measurement is and not imposed on us by outside parties— actually based on a train which arrives at a destination and it depends on the lateness of the train 10299. I am sorry, Mr Berryman, but can I just stop when it arrives, so a suburban train which is up to five you there. Network Rail have said in public that they minutes late is classed as being on time and a long- are committed to introducing this signalling system distance train which arrives within ten minutes of its around Slough anyway because the existing system book time is regarded as being on time. When we talk does not work anymore, it has passed its sell-by date, about the 92 per cent, what we mean is that 92 per so to speak. cent of trains are arriving on time. Now, the diYculty (Mr Berryman) It certainly has. I would not like to with Crossrail is that it actually links two networks speak for Network Rail, but my understanding is together, it links the Great Eastern and the Great that they are currently trialling this system in Wales Western, and the train does not run into London and on the Cambrian line. terminate as happens with most normal train services, but it goes on through London, comes out 10300. LORD SNAPE: Which is very busy! the other side and uses the tracks on the other side of (Mr Berryman) It is a very busy line! The idea is not London, so it is not necessarily the best way of to jump into the swimming pool with lead weights measuring the kind of timetable performance that we tied round their legs until they have learnt how to need for that kind of service. It is the only measure at swim. They are going to try the system progressively the moment which exists, but my colleagues are in more complicated areas and I do not think it will looking again to see if there is a better, more happen at Slough unless it has been demonstrated appropriate measure for us. I would have thought that it really does work. I think it is worth just saying that one of the things which we are interested in is the a few words about how the modelling works. A lot of accuracy of presentation at the tunnel mouth because the causes of delay in the model are due to we need to run a very high-frequency service through perturbations caused by other aspects of the railway, the tunnel. We need to make sure that the trains so trains with which Crossrail trains interact make a actually arrive at the tunnel mouth on time rather big diVerence to the lateness which is experienced by than what time they arrive at their final destination Crossrail trains. Network Rail are improving already because, to some extent, once the train comes out of very significantly their performance, but it is the the tunnel at the other end, it does not really matter Great Western that is the problem and they are how well it keeps to time or it is less crucial how well significantly improving the Great Western at the it keeps to time. moment and they are achieving much higher figures than those which were used when the model was 10297. So would it be unfair to suggest that, because being prepared. As you probably know, all of their the ORR has specified not only the 92 minimum but high-speed trains have been refurbished, they have also the methodology by which that is to be achieved, got rid of some of their less reliable suburban stock, then, if you do not like it, you are going to try and they have improved their maintenance standards and rewrite the rules? there are many further improvements to come on that (Mr Berryman) For one thing, we would not be line. We are confident that, with improved rolling allowed to rewrite the rules. I do not think the ORR stock, improved maintenance standards and better works that way, though it would be lovely if they did! train planning, we can achieve the kinds of numbers I think you perhaps can understand the point I am that we are talking about, and the OYce of the Rail Processed: 14-08-2008 19:50:53 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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Regulator has accepted that that is a reasonable 10309. LORD BROOKE OF ALVERTHORPE: statement. Just on the timetabling now of contracts to be let in 2009— 10301. LORD BERKELEY: Mr Berryman, thank (Mr Berryman) Well, as you are aware, the process of you very much. That is all I have to question you on. letting contracts with the EU Rules and so on is quite a protracted job these days and it will probably take us over a year to actually let contracts. Examined byTheCommittee 10310. You will have to provide a mass of detail to 10302. LORD SNAPE: You did say in reply to one Europe and so on in inviting tenders. When will you of Lord Berkeley’s questions, Mr Berryman, that be putting that information into the process for some works were required or will be required to meet, people to consider whether they want to bid because I presume you meant, the 92 per cent PPM to which it sounds to me as if the amount of flexibility left for you referred. you on this is fairly small? (Mr Berryman) Yes. (Mr Berryman) The first two, they are called OJEU notices, which are for the first tenders, have already 10303. Would those works which you see as being gone out, my Lord, and we are actually calling essential be included? If we take Acton as happening tenders for the first two packages of works. and Heathrow as a given, would those essential works to which you have referred include any or all 10311. This is in advance of Her Majesty? of the four on the list? (Mr Berryman) Well, my Lord, the process is rather (Mr Berryman) Yes, my expectation, my Lord, is protracted, as I said, and there is no question of that, if the traYc flows remain as they are and letting a contract before Royal Assent. everything else remains as it is, those four would be required and we would need to do them. 10312. But it is under way? (Mr Berryman) So what we are doing is pre- 10304. So I am tempted to ask then, why are we qualifying contractors at the moment which is a having this debate? If you need these to be done slightly diVerent issue from letting the contracts, but I anyway, why does the Promoter not—and I see Mr am just making the point that the process has already Elvin stirring uneasily here! started in some respects and that will gather pace in (Mr Berryman) Our issue is purely the need to retain the year after we get Royal Assent. Certainly for the flexibility to make sure that we do not get committed large works, like the Heathrow access, the time is not to doing something which, in the event, proves to be long and we will need either to come to a conclusion not necessary. We will have to do substantial works one way or the other with BAA Limited and be clear on the existing railway lines to achieve the standard what we are doing. of reliability and the throughput that we want to achieve. I do not want anybody to be in any doubt 10313. Surely within the next 12 months, is it? about that. (Mr Berryman) As far as that particular one is concerned, yes. 10305. Do you see, in those works, the four outstanding ones of the six we are referring to this 10314. And the others? afternoon? (Mr Berryman) The others, for example, the (Mr Berryman) As things stand today, I would say Chadwell Heath loop, we probably would not need to those four would be certainly on the list, together make a decision for four or five years, but certainly with Maidenhead and a couple of other rather the Acton dive-under and the Heathrow access we smaller works that are needed. would have to decide pretty soon.

10306. LORD BROOKE OF ALVERTHORPE: Re-examined byMrElvin My note was all these plus some others. (Mr Berryman) Yes, I would imagine so, my Lord. 10315. MR ELVIN: Well, your Lordships have done my first three questions, but, Mr Berryman, I 10307. MR ELVIN: Your Lordships are doing my was going to ask you the same question which is just re-examination for me! to get some idea for how much flexibility we actually want. You have made it clear that the Acton dive- 10308. LORD SNAPE: Well, we are just worried under, well, that is committed anyway, and the about your line of re-examination, you see, and that Heathrow access will have to resolve itself within the is why we are establishing ours first! next year or so? Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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(Mr Berryman) That is right, yes. been allowed in the access option, they are still modelled within the assumptions. Is that right? 10316. With regard to the others, the timescale, you (Mr Berryman) Yes, they are indeed and that is part think, is in the order of three to four years? Is that of the ORR’s decision, that we should continue to right? model on the basis that those additional two paths (Mr Berryman) Yes, it is. Hanwell Bridge sidings has will be made available. got complicated staged works, so that may be the next one to need to be fixed. West Drayton and West 10324. What does that signify in terms of modelled Ealing—there will be advantages in doing West capacity if in fact the two additional paths cannot be Ealing early because we could stop the trains going reintroduced at another stage? into Paddington now and that would help our (Mr Berryman) Well, that would considerably ease possession strategy. the capacity problems which exist in the model. On the section between Airport Junction and 10317. We might wait until we get Royal Assent, Mr Maidenhead, for example, that would be reducing Berryman! our number of trains by half which would have a (Mr Berryman) Yes, sorry, my Lords, I keep significant impact on how well the system performed. forgetting! 10325. So to what extent could that issue impact on 10318. We can do the procurement process without the need to spend tens of millions on the letting the contracts, but we cannot let the contracts infrastructure works? without the procurement process. Is that right? (Mr Berryman) It would significantly impact on that (Mr Berryman) That is correct. and I think the reason that the Regulator did not give us all the paths was actually to do with the economic 10319. Can I then just ask this question: in order to case primarily. What he said was that he could not see achieve the 92 per cent PPM, that assumes in the that there was a business case for four trains an hour modelling at the moment most of the Bill works, to Maidenhead. We think there is because four trains though not absolutely every one? an hour is a turn-up-and-go service where people just (Mr Berryman) Yes, that is correct. come along and get on the train, and we know by experience that traYc flows increase significantly 10320. Roughly how many more than the six or seven when you— which have been stipulated by the Petitioners does that include? 10326. LORD SNAPE: But not from the west of (Mr Berryman) About half a dozen other works of England? You said in an earlier exchange to myself one sort or another. and to Lady Fookes that there was not the traYc from the west of England or from south Wales for a 10321. Would you be able to achieve the 92 per cent western entrance into Heathrow Airport and now simply by being required, on current assumptions, to you are saying there is traYc for four trains an hour carry out these six or seven works? to Maidenhead, even though the professionals think (Mr Berryman) Probably not. In fact I would go there is not. Is there some conflict there? further. We definitely could not achieve the 92 per (Mr Berryman) No, I do not think there is. I would cent without doing the Maidenhead works; I am not say the professionals do not think there is, but it confident about that. is just that there is no reliable model for inter-peak flows in London. 10322. So in fact if we were tied down by undertakings to do these works, it still would not get 10327. I see, but there is for traYc from the West us to achieve the 92 per cent and the industry would Country going to Heathrow Airport via Paddington? still be reliant upon the ORR’s directions to achieve (Mr Berryman) Well, there is, my Lord, because that it? traYc is not ‘peaky’. The set-up is that in London (Mr Berryman) Yes, that is right. On their own, these itself it is the peak hours which are modelled and works would not achieve what the Petitioners are most transport decisions are based on those peak- looking for. hour models. The inter-peak modelling is actually very sparse or indeed non-existent. Long-distance 10323. I am not going to ask you any questions which train services, Intercity train services, are actually Lord Berkeley put to you with regard to planning, modelled on an all-day basis, so, as you will know but I am going to make some legal submissions about from your own experience, they are not as peaky as those, Mr Berryman; I appreciate you are not a commuter traYc is and obviously we do expect that planner. In terms of the ORR’s decision, the ORR’s further modelling work will be needed for the inter- decision with regard to the two paths that have not peak in the London area. Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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10328. In my experience, Mr Berryman, and this is agreed that the process and decision reached by the not aimed at you personally, senior managers of the ORR on 14 April was fair, transparent and railways can prove anything; indeed some of them independent and it weighed the representations, have. Either they do not want to run any trains, evidence and interests of a wider sector of the rail therefore, they do not kill anybody or they run too industry than are represented by the Petitioners this many trains, in which case it is somebody else’s fault. week. As Lord Berkeley put it on Tuesday, “The I am not suggesting for a moment that that is a ORR consulted fully and the Petitioners I represent personal remark aimed at you, but anything can be have welcomed the final decision as being fair and proved. If you are responsible for producing these reasonable and in line with its duties under section 4 statistics yourself, you can prove anything and of the 1993 Railways Act, as amended, ‘to promote railway managers have consistently done that over the use of the railway for the carriage of passengers the years, in my experience. and goods, and the development of that railway (Mr Berryman) I would not like to comment on that, network to the greatest extent that it considers my Lord. economically practicable’”. Ms Durham, for Freightliner, also on Tuesday, said that, 10329. LORD SNAPE: It was not aimed at you. “Freightliner fully supports the Regulator’s decision on the access option. We make it absolutely clear we 10330. MR ELVIN: My Lord, I have no further re- do not want any amendments to that, and it is right examination, unless your Lordships have any further that the independent Rail Regulator made that questions for Mr Berryman. decision”, and she said that unprompted by me in her evidence-in-chief. The witness withdrew 10335. CHAIRMAN: So I should think. 10331. MR ELVIN: I think that means we have now concluded all the evidence on the rail industry issues, 10336. MR ELVIN: EWS wrote to the Regulator on in which case I was going to do a comprehensive 17 March 2008, indicating that it “understands the closing and then I imagine I will be followed in order ORR’s proposals to condition the use of the rights on by Lord Berkeley and Mr George. achieving certain outputs”. As your Lordships know, the ORR has wide powers to direct the final terms of 10332. CHAIRMAN: I would have thought that the the access option under paragraph 5 of Schedule 4 to two of them would follow you, yes. the Act which I have set out for convenience in the note. That power would enable the Regulator to 10333. MR ELVIN: I do have something in writing direct that the access option should be dependent on which, as Mr Berryman has reminded me three times, the carrying out of infrastructure enhancement reached him at ten to two this morning, so it does not works in order to maintain capacity or oVset loss of cover everything you have heard today, is what I capacity, which might give rise to the new access mean, and it has a lot of typos due to my inability to option. type at one o’clock in the morning, or indeed at any time. 10337. The ORR, having received evidence and representations, and conducted a hearing with DfT, 10334. My Lords, the Promoter and the rail freight Network Rail and industry representatives on 1 industry start with the following common ground. February—and you have the exhibits of the Firstly, rail freight of course is important to the transcript of that hearing—issued initially a economy. Secondly, Crossrail is welcomed and the provisional decision and then a final decision which rail freight industry seeks in no part to argue against made it clear that the ORR had considered whether it. Thirdly, it is agreed that it is necessary to balance to require certain works to be carried out. You can the various competing interests seeking to use the rail see the discussion in the transcript and you have seen infrastructure, being passenger, freight and Crossrail some of it when I cross-examined earlier today. It was as a new passenger service. Fourthly, it is agreed that decided not to require those works but to specify an the appropriate means to do so is via the normal objective test which focused on outputs and an regulatory processes for the rail industry, including objective means to ensure that capacity was the access regime under the independent supervision maintained, including taking account of future of the ORR in the Railways Act 1993 and, as indeed freight growth to 2015. was said by Lord Berkeley on Tuesday, they wish to ensure that “Crossrail will comply fully with industry 10338. Although some time was taken by witnesses to processes which have been developed over more than explain the need for growth, it was agreed that freight the last 12 years, and they are accepted by the growth was one of the factors which had been industry as being fair and transparent”. Fifthly, it is accepted at the ORR hearing and was already Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 Promoter’s Closing on Railway Issues included in the objective test. Failure to meet the identified at a future point in time so there is a requirements of the ORR’s directions will prevent flexibility in how best to determine meeting the Crossrail having access to the network and may lead objective test. to its access rights being lost. This is a serious incentive for a £16 billion project. 10342. The rail freight industry generally accepted and welcomed that decision. 10339. The freight industry, although further representations were made on the terms of the provisional decision, welcomed the approach of the 10343. It is now less than three weeks after the ORR. I just go through the same points that are regulator’s final decision and there has been no common ground: (1) Accepted freight growth; (2) change of circumstances other than the favourable Imposed an objective test; (3) Imposed importantly a announcement by the Minister of his intention to change control mechanism which ensures that any seek the removal of the rail clauses from the Bill. conflicts with any other existing users of the network Nonetheless, the same interests who did not seek to which are protected by the decision are resolved in persuade the regulator to specify works and favour of the existing users. If those matters are now announce themselves content with the decision now resolved, as I made clear to your Lordships this appear to argue before your Lordships that such morning, Crossrail will lose paths. I set out the works should be specified. reference to the decision. It proceeds on the basis that infrastructure improvements would be needed but did not require specific works to be carried out as part 10344. We have tried to understand the reasons of the access option. behind this complete change of stance. The answers have been vague. There have been inaccurate comparisons with planning applications, which I will 10340. What is striking about the position before come back to in a minute, or simply irrelevant, your Lordships is that the Petitioners not only namely that there are two parallel processes. The welcome the ORR’s decision, but welcome the details justifications advanced do little to hide the real point, of the ORR’s decision. Their representations show which is that the Petitioners seek to use the they not only understood what was decided but they opportunity to seek from your Lordships’ House demonstrated this through their detailed what they were unable to persuade the regulator to representations and you have got the letters in the require and did not contest with the regulator after exhibits and we have gone through most of them. It the provisional decision. is all the more remarkable therefore, given the time spent on the issue of infrastructure before this Committee, that so little issue was taken with the 10345. The analogy with the planning system is a regulator’s provisional decision to reject the wholly bad one. It is bad because the analogy used by requirement of infrastructure works and to use an both EWS and the Rail Freight Group failed to objective approach based on outputs. Indeed include in the points that were put a situation where Freightliner positively endorsed the use of the there is a regulator in a similar position to the ORR, objective test without any requirement for specific in other words there is another regulator with a enhancement works. I quote again there from the separate jurisdiction to the planning jurisdiction. In letter that I put to Ms Durham on Tuesday. EWS not fact, within the planning system a local planning only welcomed the output to that approach in its authority will not act so as to require by condition further representations, but made a point, as I put to something that is regulated by another regulator Mr Smith this morning in Section 15, that the ORR under a parallel regime. If you looked at EWS and had gone out of its way to meet EWS’s concerns in RFG’s planning analogy correctly, which has not the change control mechanism and had imposed a been done by them, then the conclusion would be that new form of change control mechanism which met you would not seek to regulate that which the EWS’s requirements. regulator had already dealt with. Indeed, what I have done is I have set out for your Lordships two extracts 10341. Accordingly, therefore, you are in the from current Government planning policy; position, my Lords, where the ORR has specifically paragraph 8 which is a quotation from paragraph 22 considered freight growth and network capacity, has from the annex to Circular 11/95, which is on the considered the question to require those works that imposition of planning conditions on planning are now put before you, but the regulator had power permissions which is still current which says that in to require specific works to enhance capacity but the planning regime you do not duplicate controls. If decided not to require them, but instead decided to there is a separate regulator, you leave it to the allow further work to continue to enable the separate regulator to do his or her regulating, you do appropriate infrastructure inputs to the model to be not duplicate that through the planning system. Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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10346. Similarly, if you look at one specific area of 10351. MR ELVIN: My Lord, it is contrary to planning, which is pollution control, in that way you Government policy if there is a separate regulator to clearly have a separate regulator, which is usually the duplicate that regulation and these statements make Environment Agency, this is paragraph nine and I that clear. The highways example is a bad one have quoted from paragraph eight of the current because normally with highways works you would planning policy note 23. It makes the point: planning impose a Grampian condition which would prevent and pollution control systems are separate but you from commencing development until the works complementary. Pollution control is concerned with were done, but that would not be a parallel regulator, preventing pollution and then goes on to make the that is simply waiting for the works to be done. point that the planning authorities should work on the assumption that the relevant pollution control 10352. CHAIRMAN: I am not trying to say that regime will be properly applied and enforced and your point about a parallel regulator is wrong, but it should act to complement but not seek to duplicate is not entirely correct to say that planning authorities it. Thus, if we were before a local planning authority cannot deal with infrastructure requirements. rather than before your Lordships’ House that authority would not have the power consistent with 10353. MR ELVIN: Absolutely, but it depends on planning policy to impose a condition requiring a whether there is a parallel regulator. provision of infrastructure because the ORR has power to do it; the ORR has determined how any 10354. CHAIRMAN: Yes. necessary infrastructure is to come forward through the application of the objective test; and the 10355. MR ELVIN: The only point I am making is Committee does not need to assume that the access that the analogy that the Petitioners have made with regime has been properly applied since it is plain that the planning system is just a misleading one because it has been to the extent that it has earned the plaudits unless you consider the circumstances of the parallel of the freight industry in the correspondence and regulator under planning, you are putting forward a before your Lordships; and to impose a condition by false analogy. The problem is it has been put through requiring an undertaking here would duplicate the submission rather than through witnesses and the eVect of the objective test mechanism and conflicts only witness that ventured a view, Ms Durham, then with it because the application of that mechanism accepted she was not a planning expert and was not may reveal in the future that a particular piece of really able to answer the questions. It is just a bad infrastructure is not necessary to secure the 92 per analogy. I am not suggesting to your Lordships you cent. should not pursue the analogy, I am just saying it is a bad one and I do not think it helps you. I think you 10347. My Lords, I simply say, your Lordships are have got to make your own decision based on, with being led up the garden path with the planning respect, looking at the issues as they apply to the rail analogy because the proper planning analogy, which industry rather than to a planning authority. is where there is a parallel regulator, is that the planning authority—and it is suggested by my 10356. Mr Bennett accepted that what was being learned friends that your Lordships stand in the sought was outside the normal industry process, as position of the planning authority being asked to your Lordships will recall, and Mr Cann eventually grant planning permission—should not duplicate the accepted that the issue before both the regulator and duties of another regulator. the Committee was about securing capacity and that he was asking the Committee to take its own view on 10348. CHAIRMAN: Mr Elvin, I think this is over- the infrastructure requirement. Ms Durham sought simplified, is it not, because supposing that it was to argue that it was more the role of the Committee entirely within the hands of the local planning to specify works than the regulator, despite the fact of authority and there was a very big new development its consideration of that issue, though she was unable required which on highway grounds would need to advance any real basis for that argument. access roads and roundabouts and that sort of thing, they could insist on that. It is within their own 10357. Mr George said in opening that what he was jurisdiction as a county council. seeking would not override the regulator’s decision, but immediately went on to explain why the evidence 10349. MR ELVIN: Yes, but there is no parallel presented at the regulator’s hearing on 1 February regulator. should not have satisfied the regulator that 92 per cent was achievable. In fact, with respect to him, he 10350. 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1 May 2008 Promoter’s Closing on Railway Issues the 2006 baseline which, as Mr Burns said on behalf fair and transparent and the ORR’s legal duties are of Network Rail they were starting eVectively from a set out in the 1993 Act and attempts to pressure the very poor position in 2006. As he said, it did not seem ORR and take a decision based on that pressure unreasonable given the things we are going to do to would be amenable to judicial review. expect that to improve by 40 per cent. In any event, as Mr George failed to acknowledge the 40 per cent improvement and the changes to assumption about 10362. The issue between us is a narrow one. We are miles per casualty were just two examples of the simply saying to your Lordships, we want to retain a inputs to the model that have to be investigated to modicum of flexibility for a relatively short period of determine how best to achieve the 92 per cent. time, possibly only as much as three to four years, Indeed, Mr Burns made this clear. If your Lordships because there is the possibility that we may not have look at what he said, he said, referring to Mr Morris, to spend several millions of public money on “Richard described what happened if you just move infrastructure works that may turn out to be two of those variables to reasonable positions of unnecessary. We have got mechanisms, as your expectation”. It is clear he was not saying that they Lordships have seen now at some length, in the were the only issues, but if you just change two of the ORR’s decision to secure that Crossrail complies assumptions, then matters change considerably in with the requirements to protect the interests of other terms of the capacity. passenger services and of the freight industry and growth in the freight industry. There is that 10358. We say that whether or not particular items of protection there. As Mr Berryman has said to you infrastructure should be provided should be part of very frankly, there is a good chance we will have to do that process. Adoption of the Petitioner’s current the works in any event to get to the position under the position would be to preclude this, as indeed Mr access option. There are possibilities that we should Garrett accepted when Mr Taylor cross-examined not, but it is a question of prudent public accounting him. not to require us to do works when they may be costing £10, £20, £40 million which simply then 10359. Just to remind your Lordships that Mr Smith becomes irrelevant. said this morning I think in re-examination that in fact passenger train companies were now meeting about 90 per cent to date and, of course, the 10363. It is very easy in the context of a £16 billion modelling has some way to go so far as Crossrail is project to regard tens of millions as small change, if concerned. As your Lordships know, the regulator only it was small change to most of us! It is a matter dealt with the matter at this stage when modelling of prudent public accounting and we simply seek that was at the first stage. flexibility. The reality is freight is anxious to secure capacity which is needed in any event from the 10360. That the Petitioners seek to be opportunistic, network, whether or not Crossrail goes ahead. As I we say, is shown not only by their about-face in say in sub-paragraph 4, a number of the works which comparison to their positive reception of the you have been asked to look at are works which are provisional ORR decision, but by the fact that your committed and funded in any event. Somehow it is Lordships have been troubled with a very lengthy expected that Crossrail can wave a magic wand and exposition of growth in the freight industry which is accelerate other infrastructure works unrelated to the not in dispute and was included in the modelling; by Crossrail Bill in order to generate capacity which is EWS’s criticism of the evidence before the ORR, required whether or not Crossrail goes ahead. That is which to date they have welcomed the ORR’s just an indication that there is perhaps a little decision; spurious justifications advanced by inflexibility and a degree of opportunism in the witnesses as to why they should bring a parallel claim approach of the freight Petitioners. before your Lordships having not pressed their claim before the regulator; and Mr George’s false analogy with planning applications. 10364. Finally, the reliance for commitment to the on the Acton dive-under, of course there are specific 10361. We say the concern which has been expressed reasons for the dive-under being committed at this is diYcult to follow in circumstances where the ORR stage and Mr Berryman has repeated his explanation has plainly acted independently in balancing all the to you this afternoon. If the dive-under is not put in, interests and has not accepted the entirety of the then eVectively we extinguish the Acton Freight Promoter’s application. Stringent requirements have Yard, which is a very important facility because there been imposed on the project in terms of the objective are no real alternatives and there is no other way of outputs test and the change control requirements. preventing a significant number of conflicts and, as The ORR’s decision is welcomed and judged to be your Lordships heard, over 30 movements per day. Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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10365. It is necessary to examine whether the 10370. My Lords, I have set out some further Petitioners should succeed on the very narrow issue comments here and I do not want to take them at any of whether we should have the degree of flexibility great length, they are in writing should your that we say is properly to be allowed on prudent Lordships wish to read them at greater length. Can I public accounting grounds. just make the point that Mr Garrett accepted yesterday that of course to tie us to the infrastructure works now might also have the eVect of unduly 10366. Firstly, the points that I have already made, fettering future decisions by the ORR and you will set that it marks a significant and unjustified departure that against the fact that we cannot change the from the fully argued position before the regulator. assumptions as to infrastructure in the model without the industry agreeing or without the regulator taking 10367. Secondly, and I say this with the greatest of an independent decision that we were right. As Mr respect to your Lordship’s Committee, your Garrett explained to you this morning in re- Lordships are not in as advantageous a position as examination, he said, surprisingly perhaps in view of the regulator, which heard a much wider sector of the his earlier position, that in the absence of the detailed industry, had fuller representations and evidence and design of the infrastructure works, he could not say was in a better position to balance the interests of the what the implications of those works were for industry and come to the conclusion which capacity, so the only expert evidence called by the Parliament has said is the regulators to reach as to Rail Freight Group before your Lordships says, “I what the terms should be. can’t tell whether the works as they are at present will secure those capacity improvements”, which rather goes to prove our point, that there is a degree of 10368. Can I just interpose this, this comes from a uncertainty, which means we should not be tied down point which was made this afternoon, even if we had with the degree of nicety which the Petitioners to commit to all of these works today, regardless of suggest. whether or not that would be expenditure that was necessary at the time, that still, on current 10371. My Lord, summarising the position, we are assumptions, will not deliver the full capacity looking for a small degree of flexibility in the interests required by the regulator. The freight operators are of prudent public accounting. We are looking for a asking for six or seven items of works, one of which small degree of flexibility which does not prejudice is committed in any event, one of which is highly anybody because the way in which the control change improbable that it will not be committed within the mechanism and the outputs based objective test near future, which is the Heathrow access, but even operates will ensure that freight paths are protected, those will not guarantee what can only be guaranteed including future freight paths required for growth through the access option, which is the 92 per cent. to 2015. To do that you will require the majority of the works on current assumptions, including the £80 million 10372. It is noticeable that the passenger operating works at Maidenhead, which are not within the list. companies and others who may be concerned with Your Lordships may well ask, “What is the point of infrastructure works have not petitioned and, in our requiring us to commit to works which we are submission, the degree of flexibility we are seeking probably going to commit to in any event as a matter here is reasonable and we should not be required to of practical necessity which are ring-fenced and give any undertaking beyond the position that the protected by the access option as to the outputs and ORR has already established to the access option. which even if we do them will not guarantee the necessary capacity to protect the paths which have 10373. I can be brief with regard to blocking rights been ring-fenced by the regulator in the terms of the because nothing arises on blocking rights. It is agreed access option?”. that the Network Code and other mechanisms of the industry can be used, and it is agreed that the 10369. There is only one mechanism which is left to appropriate approach is to include an Olympics type do that which is the regulator. It does make the clause to introduce a new consideration for the ORR position of the freight industry incomprehensible to take into account when reaching its decisions. before your Lordships because it does not secure the objective of the regulator. It does not go far enough 10374. I turn then to the question of compensation. in one respect and it goes too far in others because it This turns out, having heard the witness this is requiring us to commit to matters which there is at morning, to be a very narrow issue. We have given an least a possibility we may not have to commit to and undertaking which cures any concern there may be if if £40 million of public money can be saved, then G9 of the Network Code is used. 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Lancaster’s letter sought to reassure EWS, and with 10380. If the parties cannot reach agreement under regard to the question of network change the concern Clause 40, the matter is referred to arbitration. The is there may be some impact on EWS which falls into Secretary of State may then, under Clause 41(3), (b) of the deﬁnition of network change. It is a specify the results to be achieved by arbitration, and common position before your Lordships, and the then the arbitrator determines the fair terms—such as witness for EWS made this clear, that the majority of compensation—by which those results are achieved. the works which are likely to impact on EWS fall This is to avoid the possibility that the result of the within little ground (a) and the six-month period arbitration frustrates the ability of the Nominated restriction does not apply to little (a), therefore we are Undertaker to deliver essential Crossrail works, talking about the possibility of works which last for which have been authorised by Parliament. less than six months and which are likely to be the minority of works which impact, or potentially 10381. The asset controllers in question include impact, upon the operator. London Underground and the Public Private Partnerships, BAA and Network Rail. Clauses 40 10375. CHAIRMAN: And they are re-examining and 41 are only intended to be used in circumstances the Code anyway, are they not? where the matter is not within the OYce of Rail Regulation’s normal jurisdiction, or a solution 10376. MR ELVIN: Your Lordship has my next cannot be reached by normal agreement. point: in any event industry mechanisms are being re- examined by the industry. We have given a 10382. It follows, therefore, that the Promoter does commitment that, where there are no industry not intend that clauses 40 and 41 will apply to railway mechanisms, we will pay compensation based on the operators on the Network Rail network, as clause 40 no net gain no net loss principle, but at the moment should not supplant or override the allocation of there is an industry mechanism, even if it allows access rights under the Railways Act 1993, the taking compensation with certain restrictions, but industry of possessions under the Network Code as overseen is re-examining that. Our short point on this is that by the ORR, nor, indeed, the Department’s stated this is another instance where, given the wide intention to work within normal industry processes assurance that exists through the little ground (a) of as far as possible in connection with the Crossrail network change deﬁnition and the undertakings that project. If clause 40 is not applied in circumstances we have provided both in the other Place and to your where the matter may be referred to the ORR for Lordships this morning, industry mechanisms can, as determination in accordance with its statutory duties we all agree, be regarded as the proper way to take or functions, then clause 41 does not apply in these matters forward. circumstances either.

10377. I simply record at paragraph 25, then, that 10383. Indeed, it is unclear how these clauses could be with regard to the intended way forward with the rail used to supplant or override the ORR’s decisions clauses, as I said on Tuesday, it is not considered under the Railways Act 1993 with regard to access appropriate to give any undertaking with regard to rights, as the provisions that would have allowed introducing the amendments. The Minister has made intervention in the allocation of access rights are two policy statements and, with respect to the intended to be removed in accordance with the Petitioners, that is suYcient to provide the necessary Minister’s recent statements (made on 11 and 18 degree of reassurance as to what will happen. April) and clauses 40 and 41 do not directly empower the Secretary of State in making a direction to modify 10378. On Tuesday 29 April the Committee asked for any access arrangements directed by the ORR under a note from the Promoter explaining clauses 40 and the Railways Act 1993. It would therefore be an 41 of the Bill. abuse of power, and thus judicially reviewable, for the Secretary of State to use clause 41(3) to seek to 10379. Clause 40 is based on a provision contained in modify any decisions made by the ORR under the the Channel Tunnel Rail Link Act 1996 and deals access regime of the Railways Act 1993. with co-operation between the controllers of railway assets with which Crossrail construction, 10384. Whilst, therefore, clause 41(3) is not to be used maintenance or operation interact and the to direct the ORR in discharging its statutory duties Nominated Undertaker. Either party can require the or functions, there are other circumstances where other party to enter into an agreement. The object is clauses 40 and 41 might apply. For example, the to ensure that neither the Nominated Undertaker nor Crossrail works at Farringdon station will involve a the controller can act unreasonably in dealing with a complex interface with other works, such as problem relating to the interaction of the Crossrail Thameslink, and non-regulated asset controllers, works with overland or underground railway assets. such as London Underground. It is therefore Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 Promoter’s Closing on Railway Issues recognised that this complexity requires managing in 10390. With regard to the second bullet, there are order to ensure the successful delivery of the industry processes to regulate possessions, as we have Crossrail project at this location, particularly as it debated at some length during the course of the last may be necessary for the Secretary of State to ensure three days, and we do not propose to go any further that the terms of a London Underground or PPP than say we have committed to carrying out industry contract (which is not regulated by the Railways Act processes in the way we have expressed our 1993 or within the ORR’s jurisdiction) do not intentions. unreasonably prevent something that is critical to the delivery of the Crossrail project that has been defined 10391. So far as the third bullet, Gospel Oak to as part of the Bill process. Barking is one of those projects which is already funded and, indeed, I think you were told the other 10385. Nevertheless, clauses 40 and 41 remain day it is already under way, so that is one of those fallback provisions in these circumstances, as it is matters that lies outside the purview of the Crossrail also recognised that, in this example, London Bill in any event. Underground, as a key delivery partner to the project, will have a direct interest in integrating 10392. On the fourth bullet point, it is not Crossrail works successfully with its own existing appropriate to ask the Minister not to undertake to assets. introduce further amendments. The proper processes of the House will be followed, and I certainly do not 10386. The Promoter is considering whether it is have any submissions to make as to any further appropriate to, during later stages of the Bill process, proposed amendments that are currently intended. make it explicit that clauses 40 or 41 should not be Your Lordships have the proposed amendments that invoked by either party where the matter may be are proposed to be introduced at the Public Bill stage, referred to the ORR for determination in accordance and the Minister’s statement of intention. with its statutory duties or functions—in eVect, where a solution can be reached under the aegis of the 10393. On the fifth bullet I have dealt with clauses 40 normal regulatory processes. and 41, and the sixth bullet is again the same point, the Peterborough-Nuneaton works are matters 10387. Notwithstanding that, the Promoter is clear which lie outside the Crossrail Bill and they are that it does not intend that clauses 40 and 41 will matters being dealt with under TIF in any event, and apply to railway operators on the Network Rail therefore the undertaking, as with the other, is not network. The provisions would instead remain in justified. reserve to deal with such complex circumstances as outlined above, although the Promoter will specifically review clause 41(3) following comments 10394. I am conscious that I owe Lord James the note that the Select Committee has made. which we will get to your Lordships by the end of the week, and Lady Fookes’ note on safety and security 10388. I end with a specific response to Lord is in hand. Berkeley’s submissions because the EWS submissions I have dealt with in their entirety, and I 10395. I will have typed up my handwritten notes on simply respond to Lord Berkeley’s conclusions on his costs with the corrected arithmetic which we will two slides. The commitment to specific infrastructure formally tender as an exhibit. I will also have a note I have dealt with. With regard to Conclusion 2, which to answer your Lordship’s question before lunch to we can see on the screen, “to confirm we will accept give you chapter and verse about the infrastructure all industry processes as set out in the ORR decision manager. I think the simplest way of dealing with on Option Agreement”, our point is the ORR’s that is to submit a note which I ought to copy to decision does not require specific infrastructure but Network Rail because it is dealing with a matter that we are 32 bound to accept the ORR; that is our means Network Rail raised yesterday. of obtaining access to the national network. It seems to me to be an exercise which is really without any 10396. CHAIRMAN: Yes. I think we would like point. that sooner rather than later.

10389. Given the Minister’s statement of the 10397. MR ELVIN: I appreciate that. I would deal intention to remove the powers in the rail clauses, this with it on the hoof but the complexities of railway is superﬂuous and it really is the same point as my industry legislation are such that, rather than make a rejection of an undertaking to carry through the mistake and have to correct it, I want to get it provisions given the ministerial commitment. absolutely right and make sure we have a note that I 32 can hand in with a degree of assurance.

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10398. CHAIRMAN: Are you going to have to take promote the use of the railway for the carriage of instructions from Transport for London as well? passengers and goods and facilitate investment which, as I said on Tuesday, would inspire business 10399. MR ELVIN: No. My Lord, I think I said confidence. enough about that yesterday. Your Lordship is trying to tease me—well, your Lordship is 10409. I think the Committee will have appreciated succeeding, actually! the growing demand for rail freight, especially for containers—four times growth in 25 years—and the 10400. I have something to say about tomorrow but forecasting work that has been approved by I will deal with that at the end of today, so I think Government and eVectively agreed by all sites in those three points conclude matters which I had relation to Crossrail, which, of course, we welcome promised the Committee. very much, and of course, the consequences of not allowing such freight to go by rail. Mr Cann said it 10401. CHAIRMAN: Will you bear in mind the would be the equivalent of 500 extra trucks a day on point I made about getting a minister to say the M25, A13 and A14, and Mr McLaughlin said a something about clauses 40 and 41, because I think it thousand extra on the M4, so we are talking big is fairly important. It is not going to be on our record. numbers. You do not have to do it now, but when it comes to the Public stage of the Bill, I think somebody ought 10410. My Petitioners realise that Crossrail still has a to say something. Lord Bassam no doubt will be lot of work to do to complete their designs and leading the debate. timetable, as we have heard. Some would call it a heroic challenge but I think we all agree it leads to 10402. MR ELVIN: Indeed, and, of course, what I uncertainty, and this is where business confidence have just said about clauses 40 and 41 will appear as sometimes causes us concern. evidence in your Lordships’ report. 10411. We have heard about the timetable being 10403. CHAIRMAN: Yes. modelled, and the passenger and freight trains for 2015, the infrastructure in the Bill included, and the 10404. MR ELVIN: Thank you very much, my fact that it resulted in about 72 per cent PPM. Mr Lords. Berryman has admitted no modelling has been done to see how many trains could be run without the 10405. CHAIRMAN: Lord Berkeley and Mr infrastructure we have been talking about, and also George, which of you is going first? they have not modelled the consequence of the Regulator, ORR, saying that the number of oVpeak 10406. LORD BERKELEY: I have drawn the short Crossrail trains should reduce from eight to six on the straw to go first, Lord Chairman. Great Western and Great Eastern. May I say at the end of three days’ discussion on railway issues for the rail freight industry I really am 10412. My Lords, with all those uncertainties, with grateful to the Committee for their attentiveness and the planned introduction of this new type of interest regarding matters of rail freight. I hope we signalling which does not involve any lights—it is all were not incomprehensible—that will come out in cab-controlled, it is working, as Lord Snape said, on your report, I am sure. a single branch line from Aberystwyth to Shrewsbury, I believe; not very well but it is still being 10407. As the Committee will realise, freight is in the developed—and to transpose that on to the Great private sector but it does compete for track space Western between Reading and London, to deal with with passenger services which are generally State- the problems so far unresolved between TfL and funded or State-directed, and Mr Elvin and Mr Network Rail on the infrastructure and, at the same Berryman had a brief discussion about passenger time, increase the PPM to 92 per cent without any services and why they did not petition them, and I commitment to build much of the infrastructure, I would like to suggest to your Lordships it is because think is challenging, but I get the impression that the none of the current franchisees will be around when Promoters’ view is that the ORR will sort it out and Crossrail opens. I do not want to get into more detail they will tell us to run fewer trains until it is sorted but that, I think, is the reason why they are not here. out. We certainly talk to them a lot. 10413. My Lords, what happens if it does not get 10408. But it is, therefore, often an uneasy sorted out and, having all spent five years trying to do relationship and that is why the role of the ORR is so the timetable or make it work, we admit defeat and important, I think we all agree, with a duty to decide, three years before the planned opening of the Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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Crossrail services, that somebody has got to build 10418. I think it is reasonable for the freight industry more infrastructure? What happens if they run out of to ask the Committee to require the Promoters to money and the Government or TfL or whoever build a small number of works which we consider to cannot bail them out? Do they oVer to cut Crossrail be vital to rail freight. It is not an exclusive list, as we services or put increasing pressure on cutting freight heard this morning, because some, we know, are services? We are talking politics here, my Lords, but going to change, and they are not expensive, but they I am afraid that is life. What happens if ORR at that are not only important for freight but very important stage was overwhelmed with Government pressure to for bringing in this flexibility against perturbations give Government the answer it wanted for Crossrail, and against other problems I have already described and I would remind your Lordships that in the last which are going to happen between now and some few years the Government has tried a number of time in the future, which Mr Berryman said will start times to limit the powers of independent regulators. next year for the bigger schemes and go on for several It is in the Olympics Bill, nothing very serious there years after that. admittedly; it is in the Channel Tunnel Rail Link Bill, which I personally believe is extremely serious; it was 10419. Finally, if it is wrong in law for your in the Regulatory Enforcement and Sanctions Bill Committee to ask the Promoters to commit to until we persuaded them to remove it, and it is still, to building certain pieces of infrastructure, was it wrong some extent, in the Crossrail Bill in clauses 40-41. in law for the House of Commons Select Committee to ask the Promoters to build the Acton dive-under, and was it wrong in law for that Committee to require 10414. I am not going over this again but what I am it? I leave that with your Lordships. saying is governments, and not just this Government, have a habit of trying to control independent regulators when they come up with unpopular 10420. CHAIRMAN: I do not think we are saying it decisions. Lord Brooke of Alverthorpe mentioned is a matter of being bad in law -- that this morning, and I am afraid I fear that they might do it again. 10421. LORD BERKELEY: Well, I think Mr Elvin implied that. 10415. My Lords, I believe it is important that we have tried to demonstrate to the Committee that 10422. CHAIRMAN: It is a matter for our there is no conflict between getting planning judgment, I think. permission through the Bill and using industry processes through the Regulator to get access to the 10423. LORD BERKELEY: It is your judgment, my network. Lord Chairman, and I am not going to say any more about that. 10416. Mr Elvin disagrees. He said it is completely wrong in law. Well, as your Lordships know, I am no 10424. Finally, Mr Elvin kindly went through our lawyer but I have seen a lot of what Hutchison Ports conclusions, and I do not think I am going to say any have done, and we have heard their evidence. They more about the list of works which we have discussed applied for planning permission to build their port at length. 33 and the planning authority required them to build certain specific rail infrastructure. It was not the Rail 10425. On my second slide, I am grateful for the Regulator who asked them to do it but the planning comments he has made. Just to run through them authority, who said: “You cannot open your very briefly, I think the first one probably is terminal until you commit and build these rail links”, superfluous now. The second should be capable of all the way to Leeds. being dealt with under the industry processes, except we will have to see what happens to clauses 40-42, but that is my only question there. 10417. The Regulator is involved because Hutchison, the Promoter, same as Crossrail, said: “Well, if I am going to spend all this money on railway works I 10426. The reason we put the third one is I still have want to have an option agreement to make sure I can uncertainty, in spite of what some of our witnesses run trains on it”, and they are applying for an option said, as to whether Gospel Oak-Barking is, in fact, agreement just as Crossrail has, so I submit that there fully funded. Probably that is not down to the is no conflict between the two—one is for planning Committee but down to our industry to sort out and, permission and the other is for access options, and if necessary, inform me later, but I think that is it. that is all I have to say on that. 33

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10427. I quite understand the amendment to the Bill 10436. Your Lordships will have noted this and we have discussed that at length, and the last one, afternoon that there was precisely no treatment given 40-42, we have discussed. by Mr Elvin in his closing of the justification for clause 41(3) and why it was not needed in the CTRL 10428. On the final one, my Lords, we did not ever Act but is needed here. suggest that the Committee should require the Promoters to fund or build Peterborough-Nuneaton. 10437. I would invite your Lordships to include All we were asking for was maybe a paragraph in the reference in your report to the fact you have received report that said it would be very helpful to the project no justification whatsoever for that particular if the Department were able to fund this at a time so it provision. We are told what it is not going to be used could be completed to take, in addition to the growth for, but there is no explanation as to why it is needed beyond the opening of Crossrail, some of the traYc at all; why a simple arbitration provision as in the that could be diverted from the Great Eastern during CTRL Act would not be suYcient. We are not told. the construction phase to reduce the pressure on that He is entirely silent on the key matter. particular line. 10438. The only criticism we are raising is on clause 10429. CHAIRMAN: Surely both Gospel Oak to 41(3): we have no explanation as to why 41(3) itself is Barking and Ipswich and Nuneaton are going to be needed rather than a simple arbitration clause. I leave needed anyway? it there.

10430. LORD BERKELEY: They are, my Lord 10439. My Lord, so far as the second issue with which Chairman. All I am asking for is a little bit of we are concerned is concerned, which is the question encouragement from your Committee to the of compensation for loss during the works, on the Department to get on with it, that is all. I am not first matter, which is G9, we are content with the looking for an assurance or anything from the undertaking which was given. It is a pity that we Promoters on that, and they understand that too. previously had what we thought was a rather confusing letter, but now we have very clear words 10431. May I conclude by paying tribute to the and we welcome that undertaking. Crossrail team? I have had two good days with my witnesses; it has come a long way in three and a half 10440. On the second compensation matter, your years, and I certainly wish them well in raising the Lordships are aware that it is a small issue, but it is, finance. I know we did not bring any evidence on this to us, an important issue. It may well be that we are but I really do wish them well in reaching agreement guaranteed compensation in about 80 per cent, or with Network Rail and TfL because, without it, all possibly a little bit more, of cases, which is a figure we have been talking about will have to start again which my noble Lord, Lord Brooke, drew out in his from scratch. It is really serious, and I am sure questions, but of course something which is up to 20 everybody understands that and will do their best to per cent still remains, as your Lordships will reach agreement. appreciate, a significant element, and what we come back to is the basic principle which Crossrail put 10432. Thank you very much, my lord Chairman. forward in their paper H2, that compensation should be on a no loss, no gain basis, and this remains an exception to that principle. We do say that it is very 10433. CHAIRMAN: Thank you, Lord Berkeley. unsatisfactory if your Lordships were to let this Mr George? matter pass on two, what seem to us to be, entirely fallacious bases. One is that, “Well, that’s the way of 10434. MR GEORGE: My Lords, yesterday the world. That’s the way which you deal with the afternoon I undertook not to trouble your Lordships matter under the present industry procedures” for very long with my closing and I do not propose to because the construction of Crossrail and its various do so. I refer your Lordships back to my opening works coming all together are very unlike, indeed yesterday afternoon and I do not propose to repeat totally dissimilar to, the sort of matters with which what I said in that. the ordinary industry procedures are intended to cope. We, therefore, have identified this element in 10435. The first point we raised was the one in the normal procedures which will work, as we see it, connection with clause 41(3), and I appreciate your unjustly to rail operators when the Crossrail works Lordships have taken the preliminary view that this is go ahead, unless there is special provision made to a matter for the Public Bill Committee, but can I urge deal with the matter. Secondly, it is said, “Ah, but the your Lordships to make specific reference to clause issue is under re-examination in any event”. What is 41(3)? under re-examination at present is the contents of the Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [E] PPSysB Job: 404689 Unit: PAG2

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1 May 2008 Promoter’s Closing on Railway Issues industry code as it is to apply to normal railway that you can quite properly ask the question, “Well, operations up and down the country. That is what the what if it becomes very diYcult? Who is likely to be railway code is about. The revisions are not designed squeezed?” and to that you may straightaway give the so as to cope with these one-oV ventures, and they are answer that you think it is quite likely that it is freight very rare indeed, such as CTRL and such as that will be squeezed and, if freight is going to be Crossrail, and your Lordships have heard that in the squeezed, there must be a lot to be said for ensuring case of the CTRL proposal, there was special that as early as possible these works, which are in provision made so that all losses are recoverable. there to benefit freight and passenger services, are Your Lordships have heard that in most rail orders, included. including the East London Line Order, special provision is made and that is all we seek. We say that 10442. My second introductory point is simply to say it would be quite wrong to say, “Oh, this matter will that this project at this very late stage does still be dealt with in the re-examination”. If it is dealt with appear to be a bit like an amoeba or a chameleon. It in the re-examination, then that of course is what will is terribly diYcult quite to pin it down and it seems bite, but there is at present no evidence before your still to be subject to quite a lot of uncertainty. Some Lordships to suppose that those who are re- of that you heard about yesterday, about examining the matter intend to cater for the very infrastructure management, and then we thought special case of major projects which are being that we were dealing with what the ORR’s decision constructed of a nature such as Crossrail. had said, but we now hear that, at yesterday’s timetabling, what is actually being modelled, so to 10441. I then turn to the last matter which is the speak, the prime case, is not the ORR’s decision at question of the infrastructure works. Can I start with all, but has still got the greater number of trains with two preliminary matters and the first of these suggestions that the freight should be removed, and concerns the origin of the 92 PPM, public we saw that rather frightening reference to a performance measure, which is a question that the possibility of descoping. Well, we are simply Lord Chairman raised this morning. In my opening concerned to achieve as much certainty as possible, yesterday at paragraph 9705, I gave the origin of the and we would hope that the Committee likewise 92, it being the target figure which the Secretary of would want to do that. State had given for the passenger train industry to meet by a particular date, so it is not a special figure 10443. Now, turning to the infrastructure works, here, it is the national target, and Crossrail have plainly this Committee has heard a great deal more thought it appropriate that their new service should than the Regulator ever heard about these particular meet that national target. It was again a matter to works. If your Lordships doubt that, you have the which Mr Smith referred this morning. It is going to document which shows the proceedings of one day be tough to achieve that figure. Mr Elvin suggested before the Regulator, a very few pages dealing with that I had criticised in some way the Regulator for this matter compared with the very detailed evidence setting his standard by the 92 figure. I do not criticise which you have had, including the helpful evidence of him at all for doing so; that appears to be the Mr Berryman, accepting that so many of these works appropriate figure. The only point which I was are in eVect essential. What we say is that these works making in my opening yesterday and which Mr Smith are overwhelmingly likely to have to be included in is making this morning is that it is going to be very the package, so why not include them now? The demanding to achieve it. After all, if 92 is to be Promoter’s case seems to be based solely on two generally achievable, it by no means follows that it is arguments, firstly, the ORR’s decision, and, going to be at all readily achievable on these very secondly, flexibility. Now, so far as the ORR’s busy lines as they approach London on either side. decision is concerned, can I re-emphasise that we are You already know that at present the average is not seeking in any way to overturn or override his somewhere near 90, but remember what Mr Smith decision, and I dealt with this matter in my opening says, that that average includes what he described as at paragraph 9690 yesterday, and can I only ask that, “easy places”, such as the line from Norwich to when the transcript is being oYcially drawn up and Cromer which he mentioned where there is really so corrected, the second lot of quotation marks be little traYc that you ought to be able to achieve removed because they were my words rather than any something very much higher than that. Our point is quotation. What I said then was that it was entirely that it is going to be very diYcult to achieve and we for the ORR whether he, the ORR, sought are simply concerned that this Committee does guarantees of particular infrastructure provision. He everything it can to ensure that that standard can be chose not to do so and EWS accepts that the ORR’s achieved, and it seems to us that ensuring that output measure is a useful control. We do not seek to decisions are made about these five additional freight go behind the controls which he has put in at all, but, works is a contribution you can make and, secondly, secondly, we do say this: that it is no part of the Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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ORR’s function to ensure, or do his best to ensure, accepted and, if there is no alternative to the works, that Crossrail will be operating in 2017. wherein lies the ﬂexibility?

10444. Your Lordships, on the other hand, may feel 10447. Thirdly, can I simply remind your Lordships that it is part of your task to do everything you can to of three passages from my witness yesterday. The first ensure that Crossrail is up and operating in 2017. The in the transcript was paragraph 9755, “Has the ORR’s function is to ensure that, when Crossrail Promoter got the power to construct alternative does operate, if Crossrail does operate, it is doing so works unless they are within this Bill?” and the at an appropriate standard, namely the 92 per cent answer, unsurprisingly, was, “He does not have that PPM, and that it be able to take place in 2017 is not power”. Then at paragraph 9767: “Do you think the critical to his particular jurisdiction. There is no Committee could safely assume that anything else question of any duplication of planning controls or might turn up? controls arising, which is the new argument now (Mr Smith) I do not think that is a safe assumption. being pursued by Mr Elvin. There may be very I would have expected within the three years that we specialised cases, pollution cases normally, where have been debating Crossrail that, if there was some there is some aspect of the ground controls or the cracking scheme that would miraculously create leachates or something which can properly be dealt capacity and enable all services to operate eVectively, with through the control of pollution licence, but we then we would have discussed it within the industry are not into that terrain. There is nothing at all and might even have brought it forward. The fact is improper in this House or any planning committee that the schemes that the Promoters have put faced by an application for works which are railway forward are sensible and sound ones and ones on works saying, “We want to know precisely what we which we would like to rely are approving, we want to know what is going to happen, and we want to be sure that what we are 10448. Finally at paragraph 9769, Mr Smith said this: sanctioning is going to happen”, and that can be done “Time has moved on. Nobody has come up with a either by a planning authority through a Grampian better idea and we are very close to the Bill being condition and could be done by your Lordships approved and the works starting, so I think we really through accepting, or asking for, the undertaking do need to be more definitive now and say this, ‘These which we have sought. are the works that make the Great Western work for freight but also make it work for Crossrail and make 10445. Now, Mr Elvin puts the matter extremely high it work for other passenger services’“. We would ask in his closing because at paragraph 10 he said that the your Lordships to do two things, first of all in your local planning authority would not have the power to report, to make it plain what the submission was impose a condition, and, with the greatest respect to from the freight industry and in particular my clients, the Lord Chairman, that was saying there was not a but, secondly, to endorse it. We would hope that legal power, paragraph 10. My Lords, with respect, before the matter leaves your hands you seek an that is entirely wrong. A local planning authority, undertaking similar to the Acton dive-under faced by this application, or, if Crossrail was coming undertaking. The circumstances we say are identical, forward under a Transport and Works Order, the they are necessary works. We cannot be criticised, as Secretary of State, standing in the shoes of a local we now are, because we have limited ourselves to five planning authority, would absolutely have the power works rather than a larger list. That surely is us being to require that the works did not start until certain moderate, which I hope is a virtue, and we would ask works had been completed, and if anyone were to your Lordships to request that. challenge that in the courts, they would be doomed to failure. Your Lordships plainly have the power and, 10449. Mr Elvin yesterday, as I reminded your if I may say this with the greatest of respect, it is the Lordships, described my case as ridiculous, today he commonsense outcome which we are asking for. described my case as incomprehensible. They were Here are these works, pared down to five works, both, I think, adlibs added to his script. My Lord, I which Mr Berryman accepts, he knows of no hope our case is not at all incomprehensible on either evidence that the scheme could possibly work of its three limbs and that it may commend itself to without them and, in those circumstances, why not, your Lordships. Can I finally thank your Lordships we say, require them? for hearing me. We do wish this Bill well. I had the privilege of being in the position of Mr Mould when 10446. The only second reason given is this argument the first Crossrail Bill was before the House of of flexibility, but this argument on flexibility fast Commons back in 1992. I still feel personal sympathy disappears. It is flexibility for a terribly short while to the scheme. At that stage it did not receive the because they have got to go out to tender for the sanction of Parliament, that was a great sadness. The works. 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1 May 2008 Promoter’s Closing on Railway Issues be much better if Crossrail had gone ahead then. the industry responses because I have cross-examined Certainly we hope that Crossrail does proceed. We on them, but you will see from this that you have not hope it does open in 2017 and we believe that the got anything like a reasonable proportion of the measures we have urged your Lordships to seek to ORR’s documents. I do not want your Lordships to incorporate will make it a better scheme and a scheme think that you are being asked to take a decision on more likely to be there in 2017. My Lords, I am the basis of broadly as good information as the ORR grateful. had. I am quite happy to have that list copied so your Lordships have it, but it is just a print-oV from the 10450. CHAIRMAN: Thank you. ORR’s website.

10451. MR ELVIN: My Lord, it may seem 10455. CHAIRMAN: I do not know whether I can curmudgeonly in the light of Mr George’s both get both of you to agree about this. We have not got personal and professional expression of support for all the time-tabling and the modelling material—and the Crossrail Bill to point out that he has I am truly grateful that we have not—what we have inadvertently mis-stated a fact. He sought to say in got is a great deal of information, both in the Bill his submissions, although no evidence was adduced itself and as a result of the evidence about the on this point, that your Lordships have everything infrastructure works that have been referred to by which was before the rail regulator and therefore can both these Petitions. I would assume that the facts take the decision. My Lords, your Lordships have about those infrastructure works were available to only a fraction. the ORR because they are referred to in the decision.

10452. CHAIRMAN: We certainly do not have 10456. MR ELVIN: Indeed. everything that was before the ORR. 10457. CHAIRMAN: I hope that is a fair summary. 10453. MR GEORGE: Mr Elvin, if you are going to 10458. MR GEORGE: My Lord, that is fair, but the intervene now, what I said was the Committee had ORR, so far as I am aware, was not taken through the more on the rail infrastructure works than the rail individual works. He knew that there were the works regulator had. That was all I said and that is the only in the Bill and he knew that the parties were asking matter you are entitled at this stage to intervene on. I that they be part of the decision, but my point is a would suggest that is right and I ask your Lordships little limited one and your Lordship knows exactly if they doubted the proposition to look at the record what it is and I am not going to repeat it. of the proceedings at the very few pages which were devoted to it and to compare that with the evidence which your Lordships have received. 10459. CHAIRMAN: Mr George, they were inputs as were the models. 10454. MR ELVIN: My Lord, that is where Mr 10460. MR GEORGE: They were inputs to the George, I am afraid, is misleading the Committee model. because the regulator had before him a vast amount of evidence, including performance and systems 10461. CHAIRMAN: They were inputs and they modelling report.34 I have the two pages from the website of the ORR which sets this out, because you decided that they were not going to formulate their can download all the documents which were before decision on the basis of the inputs, therefore they did the regulator. Your Lordships need to understand not have to come to any conclusion about them. They that the implication of what is being said: that your were going to produce an output decision, which is Lordships have far more information than was what they did. available to the regulator, which I am afraid it is just wrong. You will see, this is the ﬁrst page of the ORR’s 10462. MR GEORGE: Absolutely. website with documents relating to the Crossrail access option. You will see the application 10463. MR ELVIN: My Lord, will Mr George also documents which you do not have, the initial forgive me for correcting one other point. In dealing responses of which I think you probably have one. with the planning issues, I thought I had made it clear You do not have the DfT responses. You have not to the Committee, I was only seeking to rebut the got the update on the hearing, further responses, suggestion that the planning system was a good report and further information. You have got the two analogy. I am not asking your Lordships to ﬁnd that decision documents and you have got the majority of you are bound as if you were the planning authority.

34 Your Lordships have your own jurisdiction and you documentation, www.rail-reg.gov.uk (SCN-20080501-025 and will make your own minds up as to what you -026) should do. OYce of Rail Regulation—Crossrail Track Access option Processed: 14-08-2008 19:50:54 Page Layout: LOENEW [O] PPSysB Job: 404689 Unit: PAG2

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10464. CHAIRMAN: The situation is perfectly 10466. CHAIRMAN: Have we got anything else on simple. In supposing that it is a matter where the the programme today? Environment Agency is involved because there is some pollution issue, the local planning authority 10467. MR ELVIN: My Lord, that concludes the could not refuse the application on a pollution point programme today. I have been told that so far as unless they were advised by the Environment Agency tomorrow is concerned, you have the Smithﬁeld so to do. They cannot do it of their own account, at Market Traders Association. I think Mr Mould is least if they do they will get into trouble. It is no more presenting for the Promoter tomorrow. than that. 10468. CHAIRMAN: There have been negotiations 10465. MR ELVIN: Indeed. Mr George says it is my I think. submission. It is actually Government advice that such duplicative conditions are ultra vires. The passage from Government policy we quoted at 10469. MR ELVIN: I gather there is only one paragraph eight of our written note says duplicative outstanding issue for your Lordship’ consideration, conditions are not simply bad policy, they are bad in which relates to compensation matters. I am told, law, but your Lordships are not a planning authority and I hesitate to say this, this is not my estimate, but and your Lordships will take your own view. The it is very much expected that the Committee planning analogy is not mine, I merely said that the proceedings can be concluded by lunchtime. planning analogy that was put forward was not a good analogy for the reasons I indicated. I hope I am 10470. CHAIRMAN: Anyway, we will be sitting to not considered to have advanced that as a reason but hear it whatever length of time it takes. We will merely sought to rebut it. adjourn until 10am. Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [SE] PPSysB Job: 405373 Unit: PAG1

862 committee on the crossrail bill: evidence

DAY TWENTY-SIX FRIDAY 2 MAY 2008

Before: Colville of Culross, V (Chairman) Jones of Cheltenham, L Brooke of Alverthorpe, L Snape, L Fookes, B Young of Norwood Green, L James of Blackheath, L

Ordered at 10.00am: that Counsel and Parties be called in. 2

10471. CHAIRMAN: Good morning. Mr Mould? 10475. I will come back to that in a moment, but can we put up 04-053. This is just an aerial photograph to trigger the memory. This is Lindsey Street, forgive 10472. MR MOULD: My Lord, this morning, as I me, that is an incorrect reference. The street marked think your Lordships were told yesterday, we have as Hayne Street is Lindsey Street. Hayne Street lies to the petition of the Smithfield Market Traders’ the east of the ticket hall site where I am outlining Association. My learned friends, Mr James here. Here is the Lindsey Street ticket hall site for the Dingemans, QC and Mr Paul Lettman appear for the Farringdon eastern ticket hall. Here is the eastern petitioners. In the usual way, if it is convenient for market building and the remainder of the market your Lordships, I was proposing to set the scene and complex lying to the west. As your Lordships may be tell you where we got to in relation to this Petition. familiar, traYc circulates in a one-way system around the market complex at the present time. 10473. CHAIRMAN: That would be very helpful. 1 10476. It might also be worth noting that there are 10474. MR MOULD: Then I will hand over to my dedicated loading bays and parking spaces located learned friend. If we can have Exhibit 04-052, please. around the market buildings themselves which are As your Lordships will be very well aware, we are in used by the traders and their customers, including the vicinity of Farringdon and Crossrail proposes a some hermetically sealed up-to-date, modern all- station at Farringdon. We have shown on this plan singing, all-dancing loading bays which are located the general location of the Crossrail station. broadly on the northern side of the market complex. Farringdon Road is running broadly here There are some loading bays on Lindsey Street in the location that I have shown here, which may be (indicating) you see the existing Metropolitan and 3 Circle Line tracks here; Barbican Station on the mentioned later in the course of these proceedings. Metropolitan and Circle Line I am showing now. Smithfield Market itself, the east and west market 10477. Can we have 054, please? This shows you on and the west market buildings and then the poultry plan the scheme as it was before the House of market, as your Lordships will be familiar with. The Commons Select Committee and the only point I key point to note here is that the eastern ticket hall for wish to draw your attention to is that you see the the Crossrail station is to be constructed at this site, escalators serving the eastern ticket hall and you see which we know is the Lindsey Street site based on that the area within which that escalator shaft will be Lindsey Street which runs here between the eastern constructed. As you can see, it pushes quite flank of the east market building and the Lindsey significantly into and beneath the east market Street site itself. Under the scheme presented to the building itself. As I say, on that basis, it would be House of Commons Select Committee, the intention necessary to go into the east market and to undertake was there should be an escalator shaft constructed quite a challenging engineering4 process within the beneath the basement of the east market building. I basement of the market itself. We can see that a little am just showing the outline, the dog leg of that more clearly if we go to 055 where I have a cross- structure here. That would have been constructed section for you of that scheme. You can see that here within and beneath the market building in the (indicating) on the left-hand side of the section is the basement. You see the basement shown here with east market building structure, Lindsey Street I am access being via a spiral ramp, which I am outlining, 2 which lies to the south of the market complex in the 23—04-053) location I am showing here. 3 CommitteeEnd—Interchange Ref: P73, Level Aerial 1 (LONDLB-23—04-054) View—Farringdon (LONDLB- 1 4 052) CommitteeEnd—Section Ref: (LONDLB-23—04-055) P73, Farringdon Station—Lindsay Street Committee Ref: P73, Farringdon Station (LONDLB-23—04- Committee Ref: P73, Farringdon Station—Lindsay Street Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association just pointing out and then the Lindsey Street work in terms of vibration performance, whether they are site with the new ticket hall showing with a schematic bespoke or brought in. over-site development over the top of it. Then we have the escalator shaft, the crucial point to today’s 10483. LORD JAMES OF BLACKHEATH: My proceedings, passing beneath the market building. experience of the pre-constructed ones is that they are You can see the subterranean structure which would real bone shakers. be constructed for that purpose beneath the market itself. 5 10484. MR MOULD: As one of the themes, which as your Lordship knows has been a feature of our 10478. Go to 056 and I can tell your Lordships about presentations to this Committee, is that in many some quite significant changes which are proposed. respects design performance is a fast moving beast in What I am showing you now is the layout for the relation to structures of this kind, and modern scheme design as it is currently proposed in a revised escalators may perform very much better than those form. The key point here to note is that it is no longer that have been in place for as little as ten years, I do on this basis proposed to construct the escalators on not know. To return to my theme, I have explained that former alignment, that is to say that they pass how, under our current revised proposals, the beneath the east market building. What is now alignment of the escalator will change and the proposed is that the escalator—and I am pointing out significance that would have in terms of the need to the escalator lying here—will be constructed on a carry out construction works within the basement of revised alignment which would be essentially at right the east market building. angles to the former proposal. They would dog-leg at the northern end of the Lindsey Street site so that 10485. On that basis, not only would the permanent they would then link in on an angle to the Crossrail position be very diVerent, but also the degree to platforms which are running broadly beneath— which we would need to use the basement of the east market building as a work site would be very much 10479. LORD JAMES OF BLACKHEATH: May I reduced. I will ask Mr Berryman to explain that later ask a question? I do not think we have ever asked this in the morning. SuYce to say that on these revised before but the escalators that are being used here, are proposals our expectation is that the degree of impact they pre-constructed complete units or are they built on the traders and on the east market building itself integrally into the station here? The diVerence being would be very considerably less than that which was that the ones that are built in have a completely presented to the House of Commons. The reason for diVerent vibration performance to the ones which are that is that it is no longer proposed that the Thames self-contained in table units. Link scheme should run into Moorgate Station. That has given us a little bit more leeway as regards work site and construction capability in the area to the 10480. MR MOULD: The answer is it will vary north of the east market building and, again, I will depending on the location. I will take instructions but ask Mr Berryman to give you6 more details on that I am not sure if I can give you a definite answer as to later. what the position will be here at this stage in the process. As to the corresponding performance of 10486. Can we have 04-029? I need to explain bespoke and bought-in escalators in terms of precisely where we are in relation to the revised vibration, I am afraid I cannot help you with that, but proposal because it is fair to say that we have not yet if you would like some information, I will see if I can submitted those proposals, the up-to-date position is find it. set out in a letter that we sent to the Parliamentary Agent for the Smithfield Traders’ Association on 24 10481. LORD JAMES OF BLACKHEATH: Mr April of that year. I have produced that letter as an Berryman behind you is looking very excited, he exhibit for you just to summarise. On this page we might be able to help you! summarise the original proposal and the development of our revised proposal. If you want to 10482. MR MOULD: Mr Berryman, it is his default have a glance at that and I will ask if we can turn to mode to look excited. I will see if he is more excited the next page, please. than usual! Can you bear with me for a moment. (After a short pause) Mr Berryman tells me that he 10487. The key paragraph to note is the final would prefer to bring them in in one piece if he can, paragraph of this letter, which says: ”Further to but it does depend on location. His position is that he recent progress, our position is that although the would not expect there to be any significant diVerence Promoter is still not at the stage where we can

5 6 Street End—Section (LONDLB-23—04-056) Clark Solicitors, 24 April 2008 (LONDLB-23—04-029 and -030) Committee Ref: P73, Farringdon Eastern Ticket Hall—Lindsay Committee Ref: P73, Correspondence from CLRL to Oury Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association categorically abandon our original plans, we are now obviously in consultation with the Market Traders able to reinforce the above assurance by oVering to Association. I am not going to take time on this in use our best endeavours to deliver such a revised detail now, just to draw it to your attention9 with the scheme”. Then we set out the assurance that we have other matters in relation to loading bays and access. given to the market traders in relation to that. What that means in simple terms is the best endeavour is 10491. Perhaps we can turn to page 038. A particular that it is now, I am able to say, highly unlikely, concern with the traders has been to maintain the perhaps one could say extremely so, that we shall vehicular access to the market and access to the construct the east market ticket hall for the loading bays. One can understand why I draw Farringdon Station on the original, more invasive attention to item 3 on that page, which confirms that basis. Final confirmation of that is expected to be we will maintain safe vehicular and pedestrian access given within the project during the summer of this through Lindsey Street and around the market year, so in June or July of this year. That is the including 44 tonne vehicles.10 current position. 10492. If we can turn on very briefly to page 39 as 10488. LORD YOUNG OF NORWOOD GREEN: regards the loading bays. The key concern has What is it dependent upon? Is there some slight always been the impact of the construction of the obstacle you have got to overcome? Lindsey Street ticket hall on the use of loading bays, the street on the eastern side of the market building. 10489. MR MOULD: I do not think it is on the This commitment was given, that is to say we would ground, it is just a process of ticking every box in use every endeavour to maintain six loading bays. relation to the design. I gather that it is essentially just That was given in the context of the original proposal to complete our site investigation to make sure there that was before the House of Commons, but the is nothing unexpected which is not revealed in the position as instructed as regards the revised scheme is usual plans, but subject to that we are committed, as it would be possible to maintain the use of the loading you see in relation to that revised scheme as set out in bays in Lindsey Street throughout the construction the letter. stage. That would be a marked significant improvement in the event the revised scheme is 10490. That then leads me to the penultimate thing I proceeded with. I think it is fair to say, my learned need to show you, 04036, because there has been a friend will indicate that the decision to proceed with further significant development since the House of those undertakings is seen as a significant advance Commons and it is this. One of the key points, as you insofar as the Market Traders’ Association is will have noted from reading the Petition, that the concerned. We are very pleased that is the case. market traders have been seeking has been a direct contractual relationship with the Promoter to 10493. That leaves us with one outstanding issue and confirm a number of undertakings and assurances it is that of compensation and the particular issue that have been given to the market traders in relation there is this. It is the extent to which the ordinary to the impact of the Crossrail work throughout the rules for land compensation and in particular the parliamentary process. We have agreed that would be extent to which payment can be made for land an appropriate course to take and the current compensation for disturbances relating to public position is there is a draft deed of undertakings in works, should be extended in the case of the negotiation between the7 Promoter and the Market Smithfield traders in the House of Commons. The Traders Association. We have provided you with an Committee felt that there was a case for some special up-to-date draft of that in your current pack arrangement to be made in relation to the market beginning at page 36. It is fair to say the head of traders to reflect the historic and sensitive nature of terms are agreed. It is down to the detailed drafting their case. The Promoter accepted that and the now and I will draw attention to two particular Promoter has undertaken to achieve that by matters. First of all, assurances and undertakings as extending the right of recovery, so where a claim is regard the suppression and8 management of dust justified the Promoter has said that the market escape. If we turn to 039, you can see that there are traders will be able to recover not only a sum of detailed arrangements for physical work involving money to reflect the value of leasehold but also to total enclosure dust barriers. There are provisions recover consequential loss, particularly loss of trade for dust monitoring and management plans, and loss of business flowing from that event.

7 9 Undertaker and individual Smithfield Market Traders, April Undertaker and individual Smithfield Market Traders— 2008 (LONDLB-23—04-036) Vehicular Access to and around the Market (LONDLB-23— 8 Committee Ref: P73, Draft Deed between the Nominated Committee04-038) Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders— 10 Farringdon Station Eastern Ticket Hall—Dust (LONDLB-23— Undertaker and individual Smithfield Market Traders— Committee04-039) Ref: P73, Draft Deed between the Nominated Loading Bays (LONDLB-23—04-039) Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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10494. As my Lord, Lord Chairman will certainly 10501. I am very grateful for my learned friend’s appreciate, that is a significant extension over the introduction and I hope you will have seen from my ordinary principles that apply to land compensation note all the concessions that they have made to the for those who occupy neighbouring land which is market tenants. We do respectfully submit, though, aVected by public works, that is to say who do not that there is an important and missing element from have any land taken but are aVected by public works the provision and safeguards that, we submit, ought carried out on neighbouring property. properly to be given to these tenants, and it is simply this. 10495. CHAIRMAN: Are you going to achieve this through an undertaking, or what? 10502. As my learned friend has identified, under the existing statutory arrangements if you have, for 10496. MR MOULD: Yes, indeed. The deed I have example, escape of dust—and you will have read shown you does include just such a commitment. enough and been told enough to know that the There is an issue as to whether it would be better in market operations are acutely sensitive to dust, the form of the deed or whether it will be something eVectively there are over a thousand inspections a that stands free from the deed, but I do not think that year, so running at over three a day—the moment is anything that needs trouble your Lordships; that is you trigger dust levels, perfectly understandably for essentially a choice for the traders. But the substance health and safety reasons and food safety reasons the of that commitment is something which we have market is closed and the meat condemned. already indicated we are willing to commit to. 10503. Now, there will be escape of dust, 10497. So the issue today is not so much whether notwithstanding all the promises that have been there should be special arrangements but whether the made on behalf of the Promoter. For example, if you market traders, and Mr Dingemans will tell you look at clause 7 on the document in front of you, you about this in a minute or two, should not only have can see in relation to dust that the undertaker will put an extended right in relation to the compensation in place Tier 3 mitigation—and that is, as you know, they recover where they have a valid claim, but the highest that you can provide—at the Lindsey whether the actual right to claim compensation Street worksite, the East Basement worksite and the should be extended in itself, and in particular what Fox and Knot worksite,11 and “such Tier 3 Mitigation they seek is that they should be able to claim will include as a minimum all the measures specified compensation for losses flowing from the disturbance in Tier 1 and Tier 2 and . . . will include the provisions caused by, for example, dust, not only where that set out in this clause 7”. results from some failure in the Promoter’s dust management plans and processes but also where that 10504. And then, if one goes through, one can see is the inevitable consequence of the perfectly proper that various promises are made in clause 7 but what performance of the Crossrail works, and your there is not provided and could not be provided is any Lordships will appreciate that that is the significant guarantee that dust will not escape from the point, because under the existing state of the law building works. there is no right of recovery of land compensation in these circumstances for disturbance, which is the 10505. The real point, for example, in relation to inevitable consequence of the proper performance of dust, and there are other elements –for example, public or private construction works. So that, I hope losing the ability to have traYc pass freely around the I have explained clearly, is precisely where the issue market at all times—is this: whether it should be the lies between us today. individual market tenants who should bear that loss when we all know it is going to happen—and this is 10498. Having said that, a theme to which I shall not a case, where it is in other compensation clearly return in a little more detail when I make my provisions, where sometimes someone may be closing submissions, I shall hand over to my learned aVected by works or may not—or whether we should friend. be left to the devices of the compensation provisions under the existing laws. 10499. CHAIRMAN: Thank you. Mr Dingemans? 10506. I have in my note—and I am sorry it was slightly dull and legal in that sense but one needs to 10500. MR DINGEMANS: May I start oV by understand a bit of the statutory basis on which this thanking you on behalf of the Tenants’ Association undertaking is supposed to be granted—set out some for sitting in the morning for them. As you know, they work overnight so the witnesses, when they have 11 Undertaker and individual Smithfield Market Traders— given their short evidence, will, if that is alright with Farringdon Station Eastern Ticket Hall—Dust (LONDLB-23— you, disappear so they can get ready and recover. 04-039)Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association of the current judicial criticisms of the 1965 Act as 10516. More relevantly at paragraphs 6 and 7 is the amended, and we do ask your Lordships to consider continued current economic relevance of Smithfield. carefully whether it is fair for these traders to have It was extensively refurbished to provide for the six imposed upon that unsatisfactory compensation docking stations that I think my learned friend scheme an undertaking the eVect of which, if one is referred to, use of which is mandatory for certain being reasonable about it, you can readily identify deliveries. There is business at the market in both lawyers will disagree with. boxed meat and carcassed meat. The boxed is, as you would expect, in a box; the carcass is eVectively 10507. The great thing about the 1965 Act is there are exposed to the elements and, therefore, more many cases that come to the Judicial Committee of susceptible to problems. the House of Lords, great work for lawyers but not necessarily for the poor people that have to fund it, 10517. The traders, and this is important because this and what we ask for on behalf of market tenants is is one of the reasons why the existing law is clarity, a simplified provision providing for proper inadequate, occupy premises pursuant to leases compensation; extending the law as it is recognised it granted by the Corporation of London, and they are ought to be extended to cover those situations which ten year leases and are protected under the Landlord are outside economic loss and damage which is and Tenant Act 1954, but what that means is the covered, where there would be no claims such as value of their land is very small, they have eVectively escaped dust when there has been no failure of the residual benefits to renew leases, so the existing scheme. compensation scheme, which is aimed specifically at the value of land, simply would not help them at all. 10508. That is the short residual issue before us. They get nothing at all.

10509. Can I just ask, did the note on behalf of the 10518. Now, that has been partly addressed by the Smithﬁeld Market Tenants’ Association ﬁnd its way undertaking which we will come to, but whether it is to your Lordships? fully addressed will be for your Lordships to decide.

10510. CHAIRMAN: Yes, we have it. We have not had time to read it. 10519. LORD BROOKE OF ALVERTHORPE: Is the business growing or contracting? 10511. MR DINGEMANS: I need not apologise for it being boring then! What I will do is perhaps give an 10520. MR DINGEMANS: At the moment, and outline of that now and then take you to the you will hear evidence from the market tenants witnesses, who will be very short; it is simply so that themselves, I am told the business is about £750 you can understand their concerns as expressed by million to just under a billion a year. Business is them, and then take you back, if I may, through the strong and has remained strong since the whole submissions. markets were upgraded to take account of the EC Regulations. 10512. Can I just introduce the note? 10521. LORD BROOKE OF ALVERTHORPE: Is 10513. Paragraph 1 is, I think, just introductory. it growing or contracting?

10514. The issue at paragraph 2, as my learned friend (Counsel took instructions) has identified, is whether the nominated undertaker should be directed to pay compensation to the market tenants for loss and damage caused by 10522. MR DINGEMANS: I am told it is stable. execution of the works, and there is a bundle of statements. 10523. LORD BROOKE OF ALVERTHORPE: My reason for asking is I visited New Covent Garden 10515. Just by way of introduction to the market recently and discovered about 75 per cent of the land tenants, there are 35 members, they trade at there is not now being used in the way it was twenty Smithfield Market, and at paragraph 5 there is a bit years ago, and there is a lot more space available for of history in relation to Smithfield Market. I did not the existing tenants to do other things. I was have to do any of that research because if you turn wondering whether you are occupying the whole of over the page you can see that all comes from the the land there, or whether there were opportunities judgment of, as he was then, Mr Justice HoVmann in perhaps to take special measures, if there is space, to Crown Estates Commissioners v The City of London. avoid the dust. Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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10524. MR DINGEMANS: Unfortunately, and you 10530. Paragraph 10 says this, and I think it is can see it going round, there are no vacant units in eVectively common ground between us, but the those terms. What you should know is, when you extent of the undertakings and the assurances that looked at the market buildings originally, you saw the Promoter has conceded indicates the extent of the East and West Smithfield and then something called works and the risks posed to the meat market the poultry market. The poultry market is no longer operations. part of the market but the current market, East and West, is still there and still fully occupied. 10531. Can I then turn to the attempts of paragraph 11, which is where we are now, to resolve the matter? 10525. Just on economic relevance, a particular feature of the market is this: that it is not tied in with 10532. We did petition against the Bill and a whole the major supermarkets, whose eVect on competition series of undertakings and assurances were given in has been the subject of comment, and that means, the House of Commons, but what divided us there because they supply the retail customer—although in and divides us now is the compensation provisions. volume terms with not very much—all the way up to The Petition was heard in the House of Commons small manufacturers, those who cure the hams over two days, and the ruling from the House of themselves, they are economically quite important to Commons Select Committee, for what that is worth put against the powers that can arrive from now—and, of course, it in no sense binds anyone—is dominance in the market. there set out. The Promoter responded, and my learned friend has said what that was, which was: 10526. In terms of supplies, they supply “. . . the Secretary of State accepts the judgment of predominantly London and the south of England but the Committee that the exceptional and historical they have supplies that go all the way to Scotland and nature of the business of the tenants . . . justifies the west of England, and you will hear evidence on additional rights to compensation . . .”. that. 10533. That then led to undertaking B No 234, and I am afraid there is no easy way of explaining B No 10527. Can I then turn to paragraph 8 of the note, 234, it is a very detailed provision, but what it does which is what the works provide, and my learned provide is this: that “where an event occurs during the friend has very kindly taken you through that but you construction of Crossrail which triggers a right for can see that there will be work below the market in the market traders to claim compensation”—and can basement work sites, that is whether or not the I stop there and say what in legal terms that means? escalator changes or not, and the new Farringdon To claim under the 1965 Act you have to have station will be built oV Lindsey Street. Escalator something that would have been actionable at shafts—and it should not now read “will” but common law, for example, a nuisance which is “may”—may run beneath the market, and authorised by statute and therefore is permissible, so refrigeration plant might need to be relocated, and you cannot claim under common law and therefore these are the real problems: restricted traYc flows, Parliament provided that you could claim under the restricted vehicle access, escape of dust, increased land compensation provisions in the Compulsory pollution and vermin release. Purchase Act.

10528. In fact, as a matter of history this site has 10534. The diYculty—and the diYculties were underneath it a number of historic vaults which no addressed by Lord HoVmann in Wildtree Hotels—is one has yet opened, because they were closed up that normal escape of dust from building works is not under old schemes which never produced and which actionable and, therefore, the real problems that the it is feared house substantial rodent populations, market tenants are going to face is simply not and, as I think was said before the House of addressed because you have this trigger clause, you Commons, as far as rats are concerned a meat market need the nuisance, and if you cannot show the is Christmas come early, so those are real problems nuisance—or what would have been the nuisance but that may be caused. for the Act—you get nothing.

10529. Paragraph 9 concerns the Buro Happold 10535. So, although it is very kind of them to provide Report which is in the bundle and I will not take you this additional guarantee, in terms of helping the to it. It was commissioned by market tenants to market tenants that is why we are here—because we attempt to assist in negotiations and protections that hope to show through the short evidence and the have very kindly been given and it simply sets out all submissions that really what is oVered is not enough of the details in relation to that. to deal with their particular problem. Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10536. A further problem, if you continue through and what action has been taken to try to get the clause, was, as I said, under the Compulsory compensation? Purchase Act, that your losses were limited to the value of land, and that has been addressed because, if 10546. MR DINGEMANS: I think there have, you look four lines up from the bottom of the page, inevitably, been houses that have been refurbished we see “. . . the Secretary of State will require the around but nothing that will have caused these nominated undertaker to include in the problems. That is really why they have gone to the compensation an amount representing any expense—and they are all individual market consequential loss, whether or not reﬂected in the tenants—of getting the experts to negotiate and try value of the land”—so that point has been speciﬁcally and reduce the problems, and paying, for what it is addressed—“caused by the construction of the works worth, for lawyers to attempt to persuade you to do under statutory authority [and] for which the that. It would be wrong to say there have been no nominated undertaker would have been liable to pay building works—eVectively, small domestic and damages if the construction had not been authorised retail—but nothing that has had the capacity to by statute.” generate dust.

12 10537. So the limitations implicit in the 1965 Act are 10547. If we were to go back to the photograph there set out, and everything is captured by those (which I think was 053), can I identify some parts on provisions. that? If you look at the market you can see the eastern and western Building fully tenanted and you 10538. What that means in the real world is this. Tier can see, just to the bottom left-hand of the western 3 mitigation measures are used; very hot dusty day; building, what looks like a roundabout. In fact, that dust levels, notwithstanding every reasonable eVort, is a circular ramp that leads down into the car park. go beyond the permitted maximum, and that is not a There is, importantly so far as the market is situation that is going to be unusual, and then the concerned, parking on the ramp itself, part of which market tenants will suVer the losses caused by will be lost over certain periods, although the closure. Promoter is going to use reasonable endeavours to reduce that, and then there is, underneath the market, 10539. LORD YOUNG OF NORWOOD GREEN: the car parks, some of which have higher ceilings so Just to set the scene and get it into perspective, how that lorries can park underneath. Part of that will be many times a year does the market get closed on lost regardless, it seems, of where the escalator box, average as a result of dust? in fact, goes because there will be a worksite in the market area. So those are the provisions. 10540. MR DINGEMANS: I think at the moment that does not happen. (Counsel took instructions). 10548. To address my Lord, Lord Young’s point in The market as a whole at the moment has never been relation to building works, if one looks to the top closed for those provisions. right-hand corner, which I think is Charterhouse Square, there have been reasonably substantial 10541. LORD YOUNG OF NORWOOD GREEN: building works over there, and certainly when I have Or a section of it? seen the area there have been some minor flat refurbishments and other commercial fittings, but nothing on the scale that is currently proposed. (Counsel took instructions) 10549. I then turn back to the note, at paragraphs 15 10542. MR DINGEMANS: Not since the and 16. In recent discussions the Promoter has kindly refurbishment where, eVectively, it was recognised agreed to provide an undertaking requiring the that everything had to change. nominated undertaker to enter into a deed (and you have seen that) mirroring the undertakings which 10543. LORD BROOKE OF ALVERTHORPE: have been provided. We entirely accept this is an When was that refurbishment? important development. It should involve no additional costs because the nominated undertaker 10544. MR DINGEMANS: I think that was 11 would have been carrying out those undertakings, years ago. but it does mean that the tenants now have rights to enforce the specific promises in the deed and claim 10545. LORD BROOKE OF ALVERTHORPE: compensation for losses caused by any breach of Has there been any building around the markets over those specific promises. So, in the same way that if the course of the last 15 years? In those 12 circumstances, have the traders suVered from dust, 23—04-053) Committee Ref: P73, Aerial View—Farringdon (LONDLB- Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association you have a promise from anyone you can enforce it which—in circumstances where they have all the in the normal contractual way. professional advice they have and are plainly working to do the best they can—is going to be a 10550. If one goes to the deed itself—can I ask for formidable task. If one looks at 7.2(b), you can see: that to be brought up, which is 04-036—and13 ask “the design of the access to the East Basement perhaps if we start at 2.2, may I just highlight some worksite to be such so as to prevent (as far as is provisions in the deed, simply to show why it is not a reasonably practicable) the escape of dust . . . ” No complete answer to our problems? At 2.2, for guarantee that it will not escape because, of course, example, you can see, under “Pedestrian access”, no guarantee can be given. At (c): “the underground “The Promoter will ensure that pedestrian access is access to the East Basement Worksite from the maintained but that in order to carry out the Lindsey Street Worksite will be designed to authorised works the undertaker may require closure prevent”—again “(as far as is reasonably of the western footway from time to time”. If you are practicable)”—“the exchange of dust.” a market stall, eVectively, dependent upon pedestrians coming in, that is going to cause 10554. At paragraph 7.3 itself, again, you can say the problems. With the best will in the world—and they Lindsey Street worksite will be shielded so far as is have gone as far as they can with the deed—they reasonably practicable. What that simply cannot say that it is never going to happen; and, demonstrates in, I hope, a graphic way because it indeed, they specifically say it will. saves you going through all the undertakings, is that notwithstanding the very hard work that the 10551. If one goes to 4.2, one can see, having Promoter has put in to meet the concerns, everyone promised, in 4.1, to maintain safe access for vehicles recognises that the reality is that dust will escape and and pedestrians, the undertaker will14 use “reasonable that parking bays will be lost. That is the eVect if you endeavours” to ensure that the suspension of parking build works underneath the market and beside it. in connection with the authorised works is limited to take place outside operating hours. That means that sometimes it will not take place outside operating 10555. Can I then go to paragraph 17, where it is hours, otherwise they would have given us an noted that the promises in the deed should mitigate absolute promise that we could enforce. That means some of the eVects of the construction. However, that we have to show they have not used their there are two distinct problems: first, where market reasonable endeavours which, of course, is great for operations are aVected by the escape of dust, lawyers but no good for the market tenants in terms notwithstanding the use of mitigation measures, and, of sorting it out. secondly, that there will be a loss of business generally because of traYc problems, loss of parking, 10552. If one looks at paragraph 5.1: “The and the like. As to the first problem, the operations in undertaker will use reasonable endeavours in the market are acutely sensitive, and I have been constructing the authorised works to maintain six through that, so I will skip that. loading bays in Lindsey Street”. My learned friend says today, if (and it is still an “if” because the Bill 10556. I then turn to paragraph 19. Undertaking B that you will authorise contains the powers to take number 234 does not provide suYcient protection to up, as it were, Lindsey Street and to construct the the market tenants. I am afraid, to show that, one works in the basement, and that is the legal position) needs to consider the relevant statutory provisions. the works are carried out underneath the market then What I have done is use the Law Commission’s Final those loading bays will be restricted to six, and that Report, simply because then there could be no is only “reasonable endeavours” again, so it is not a argument about anyone getting the law wrong. In guarantee. fact, my learned friend and I, I think, are in agreement as to the current state of the law. As 10553. At 6.1—will that be the escalator under the appears from the Executive Summary, there is, at market—the undertaker will use best endeavours to present, no national compensation code. People call take forward a detailed design to avoid it. Of course, it that by way of shorthand, but in fact compensation notwithstanding those best endeavours, if it does not is provided under a collection of diVerent statutes: happen then the market traders would need to show the Land Compensation Act 1961, the Compulsory that they had not used their best endeavours, Purchase Act 1965 and the Land Compensation Act

13 1973. You get compensation under two separate Undertaker and individual Smithfield Market Traders— schemes: first of all, if there is taking of your land— Pedestrian Access to the Market (LONDLB-23—04-038) so if they are going to build a road over your back 14 Committee Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders—The garden and you lose your back garden you will get Market car park (LONDLB-23—04-039) some money. That is no problem. Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10557. There is also compensation where there is no their lives going to the House of Lords’ Judicial taking of your land. The specific situation of the Committee, if that is all right. market tenants means that there will be no permanent or temporary taking relevant to them. 10561. Piecemeal legislative intervention has, Although the worksites are going to be taken they do unfortunately, not helped. A weakness of the not own them because they are only tenants—it is the Compulsory Purchase Act was that it did not extend Corporation of London that own them. Therefore, to losses arising out of the use of the works. So once the relevant statutory scheme is compensation after you have built the station and everyone walks across “no taking”. your forecourt you could not complain; you could only complain when they were building the works. 10558. If one then looks at where that comes from (it is paragraph 22), that is the Compulsory Purchase 10562. CHAIRMAN: That has always been so, has Act 1965. That gives a right to compensation for it not, Mr Dingemans? what is called “injurious aVection” caused by the “execution of the works”. This means the construction of the public works. So when you are 10563. MR DINGEMANS: That is right, my Lord, building the works and it causes you problems you yes. That is why they brought in the Land are into the Compulsory Purchase Act. The Law Compensation Act 1973. However, because that was Commission has politely described the wording of passed some eight years after the 1965 Act it was a section 10 of the Act (and I have set it out but I will better provision in the sense that compensation was not bore you by reading it) as “opaque”. We provided for depreciation—it was still tied to value in respectfully submit that is a perfectly fair description land—caused by “noise, smell, fumes and smoke of it. from public works when completed”. You did not need then to show it was a nuisance; you might have been able to show it was a nuisance or not, but if there 10559. In Waters v Welsh Development Agency, was “noise, dust, smell”, etcetera, you could claim which was a decision of the Judicial Committee of the compensation. House of Lords, Lord Nicholls endorsed criticisms made by Lord Justice Carnwath, who was described as having unrivalled expertise in the field. “The right 10564. As we are stuck with the 1965 Act we are stuck to compensation for compulsory purchase is a basic with the old wording which has not even caught up property right. It is unfortunate that ascertaining the with the 1973 Act. All we are asking, really, for you rules upon which compensation is to be assessed can to do today in 2008 is give us the provision that does involve such a tortuous journey through obscure not restrict us to the common law remedy of showing statutes and apparently conflicting case law, as has a nuisance. Whether something is a nuisance or is not been necessary in this case.” That is, eVectively, is great fun for lawyers to discern but not necessarily current criticism from the Judicial Committee of market tenants. I make the point at the end of your Lordships’ House on the “taking” provision. paragraph 24 that it is on this unsatisfactory However, it does not get better because if you look at statutory regime that the Promoter seeks to graft Westminster City Council v Ocean Leisure, Lord undertaking B 234. Justice Carnwath, in the Court of Appeal, considered compensation after “no taking” and he said that 10565. In paragraph 25, there will, in general terms, there was “the deplorable state of the statutory law of be no claims available to the market tenants under compensation in this country”, and repeated the section 10 for escape of dust or inconvenience caused hope that the opinions in Waters coupled with the during the construction period. Then I explain the Law Commission’s report would pave the way for legal basis for why that happens. More significant is further legislation. These criticisms include the provision that the event relied on must trigger a diYculties of the statutory wording and the fact that right for compensation for the market traders. That there are so many conflicting judicial decisions. arises only if the nominated undertaker is carrying out works within the scope of the statutory 10560. That is not your problem—you do not have to authority—so works which are carried out worry about reforming the Compulsory Purchase negligently and not within section 10—and the Act—but what we do earnestly ask you to do is not market tenants are left to their claims in tort in to put us into that scheme, grafted onto which is nuisance, for example, or for breach of the undertaking number B 234, because one can certainly undertakings if they can show that in the deed, but see the legs in it to get to the Court of Appeal and, any such claim, no doubt, is defended on the basis perhaps even, the House of Lords. The market that all reasonable care and precautions were taken, tenants, whose means vary, do not want to spend and best endeavours were used, etcetera. Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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10566. On the other hand, where the works are a method of calculation, which the facilities owner carried out with reasonable care so as to be within the challenged in the Administrative Court. In many scope of the Act, it is unlikely that the consequences respects, the details of that challenge are neither here of those operations that do not cause actual damage nor there, but what was specifically said in the but, instead, generate dust, fumes, smoke or rodent judgment was that the Regulator’s approach, which release would give rise to a cause of action. That is the was to hold the rail operator financially neutral, was dilemma that Lord HoVman spoke about in Wildtree rational, and, indeed, the Court placed considerable Hotels v Harrow. The damage is either outside the emphasis upon and approved the fact that protection of the Act or not actionable at common compensation accurately reflected revenue lost— law so as, again, to be outside section 10. That is noting that this would strengthen the economic really why we do ask for this specific provision. incentives on the facility owner to minimise the eVect of their construction works. 10567. Can I then turn to paragraph 28. We do say that in those circumstances it is submitted that it is 10570. If we are being entirely brutal and, I hope, unjust for the market tenants to bear these losses frank about the matter, we rather suspect it is no alone. The financial resources of each trader vary complete accident that the works are now being (and, if you want, you can ask details from the remodelled to put the basement of the market sites market tenants today) but even a short interruption away from the market because we are here. Similarly, to business could lead to the failure of the individual if your Lordships were persuaded to grant us businesses. In reality, what we submit is required, as compensation provisions, that is likely to have a with all major infrastructures, is a fair balance continuing eVect, as was noted in the Rail Regulator between the interests of the public and the individual. case, to strengthen the economic incentives on the I refer there to a bit of law, but I am not sure that the facility owner (here the Promoter) to minimise the proposition that a fair balance is what you are after eVects of their construction works on the individual is controversial; it is a question of what is the balance. market tenant. It is obviously not right, we submit, that the costs of providing the public benefit is borne in a 10571. We therefore ask you to direct the Promoter disproportionate manner by an individual market to provide similar protection to the market tenants. I trader. entirely accept a point that can properly be made against us, which is there are obvious diVerences 10568. I refer to Dennis v Ministry of Defence. That between rail operators and facility owners, but the was a case which reached beyond the law courts, in underlying rationale for compensation is the same. the sense that it was the low-flying Harrier jets in As far as the rail operator was concerned, he had to Norfolk destroying, eVectively, the peace and go into St Pancras—he could not go anywhere else; enjoyment of an individual property-owner, and he Midland Mainline runs into St Pancras—so when was then compensated for breach of his rights to life they were going to rebuild St Pancras he was going to under Article 8 of the Human Rights Act. suVer loss. However, as far as the market is concerned, when you grant statutory authority for 10569. So proposed solutions. We have identified them to build the Lindsey worksite and make some other statutory schemes where compensation Farringdon Station a truly modern station, we provisions have been provided. For example, in cannot go anywhere else; we are going to be aVected relation to the works at St Pancras an access by all the problems, and we ask for similar agreement was made under the Railways Act 1993, compensation provisions. which provided for compensation to be paid by the facility owner who was undertaking very substantial 10572. The Crossrail Bill proposes a scheme which works (which we have all seen) and to the rail simply could not take place without your authority. operator whose business would be aVected. There will be very substantial public benefit to be EVectively, because of the works, everyone knew the derived from the scheme—no one doubts that—but business was going to be aVected and the Rail the market tenants will be uniquely aVected by the Regulator provided for compensation. Those works and suVer losses from them. Permitted works compensation provisions provided for: loss of are to be carried on beside and, as you have seen, facilities or increases in walking distances, below them—literally—and access to their businesses compensation for project liaison—at the moment, will be part-removed. There will be a taking of land, the market tenants have expended moneys on but the land to be taken is not part of their premises lawyers and experts which they simply cannot and the provisions of the relevant statutes forming recover under any scheme whatsoever—and general part of the compensation code, even when modified damage compensation to cover the general eVects of by the undertaking, will provide no eVective remedy the construction works. The Rail Regulator directed to the market tenants. For all those reasons, we do Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association respectfully submit that a fair balance requires more 10578. MR DINGEMANS: It should be done. than undertaking B234. That is the outline of the case. 10579. CHAIRMAN: It would have to be done by government. 10573. If it is all right with you, what I propose to do is then call very briefly the market tenants to give 10580. MR DINGEMANS: Yes. Which is why we their evidence. petition the House of Commons or you. The alternative is that if your Lordships were to 10574. CHAIRMAN: Of course. I hope you are not recommend that then the way to achieve that would, going to leave it to us to draft the undertaking that in fact, be to write clause 13 in completely—it would you wish. eVectively be worded as paragraph 28 of the Petition. Because this is the nominated undertaker, eVectively, 10575. MR DINGEMANS: No, my Lord. It is providing damages. One could provide a situation actually in the Petition. I am sure it could be that the nominated undertaker would provide improved upon, but in terms of the wording I am damages in those circumstances. afraid we simply copied the one from Midland Mainline adapted specifically for that. It is at 10581. CHAIRMAN: There are going to be paragraph 28 of the Petition on page 9 of the amendments made at the Public Bill stage. You are document. It is in the last four lines of paragraph 28, suggesting this should be another of them? which was: “The Promoter will pay to any tenant or trader in the Smithfield Meat Market full compensation for all loss and damage including but 10582. MR DINGEMANS: We do respectfully not limited to loss of legal marketable commodities, submit that, yes. As you know, in a Hybrid Bill, such loss of business income sustained by reason of the as Crossrail, the power of the Committee is to look construction of the scheduled and connected works”. through and decide, that although, generally, compensation is going to work for everyone else a specific person is not within these terms and it is right 10576. In fact, in the deed (can I ask for the deed to to amend the Bill. If your Lordships made that come back, which was your 36), at paragraph 13, you recommendation, then it may be possible to sort out can see, at the moment, the Promoter has suggested a proper deed or it may then be necessary, as it were, putting undertaking B234 in the deed, which is that: to put it in the Bill itself. However, without that “In the assessment of compensation payable to the recommendation, as my learned friend has very fairly trader as a result of an injurious aVection claim, the made clear, they have gone so far but will go no undertaker will include an amount representing any further. consequential loss whether or not reflected in the value of land caused by construction and which he would have been liable to pay if authorised works 10583. CHAIRMAN: Yes. The diYculty about the were not authorised by the Act.” We do not want that new clause is that it would have to be dealt with by in the deed itself, for this reason: if we are able to parliamentary counsel, I think, and it would have to show a breach of any of the other provisions of the have the backing of the Department for Transport. deed then we will have our right to claim compensation or breach of contract. We think that if 10584. MR DINGEMANS: Yes. That is the reality. you were trying to construe the deed as a document The House of Commons did duck the issue, as a whole, if you put clause 13 in headed eVectively—and at that stage we had not even got the “compensation” you might15 wrongly think that the contractual undertakings from the nominated deed itself restricted compensation simply to the undertaker—but they said we were in a situation market trader claiming for injurious aVection, which where the national compensation code (if you use the is not anyone’s intention. So, for that reason, we shorthand) was inadequate, and then did not make prefer that it remained outside, if you were satisfied specific recommendations as to how to deal with it. that undertaking B234 was all that we were entitled However, if your Lordships were persuaded by our to. evidence and submissions, then what we would ask for is that you might direct that either form part of 10577. CHAIRMAN: You are asking us—we the deed to be provided by the nominated undertaker cannot put a new clause into the Bill—we can to us, or into the Bill. I am not sure of your powers— recommend that it should be done. I am sure you will get advice from your Clerk as to the

15 extent of your powers in that respect—but my Undertaker and individual Smithﬁeld Market Traders— understanding is that your powers really are to Compensation (LONDLB-23—04-042) recommend amendments to the Act. Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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10585. CHAIRMAN: We can do that, yes. We (Mr Abrahams) My full name is George Christopher cannot make them. Abrahams.

10586. MR DINGEMANS: Oh no, I entirely accept 10594. What is your occupation? that. My Lord, if that is all right, then I propose to (Mr Abrahams) I am a company director. call our evidence. There is a bundle of documents, and it is simply to illustrate the points that have been 10595. Of what? made with the witness statements. (Mr Abrahams) Of the George Abrahams group of companies. 10587. LORD YOUNG OF NORWOOD GREEN: I just wanted to ask in relation to Farringdon 10596. Where do they operate from? Station—it is going to be a new station. You seemed (Mr Abrahams) The registered oYce is 218 Central to regard that as a negative impact. Having been to Market, Smithfield. Farringdon Station as it currently exists, I would have thought a more modern station would not 10597. What type of business do you carry on at necessarily be a negative. Smithfield? (Mr Abrahams) We are traders, importers and 10588. MR DINGEMANS: My Lord, I am sorry if exporters, of meat and meat-related products. I appeared to give that impression; it is not intended. I entirely accept, and I hope I have recorded in the 10598. In paragraph 3 of your witness statement (I note, that the building of the Crossrail Bill, including will not take you to it) you describe some of your changing Farringdon from what might be called a historical associations with Smithfield. Is that right? less attractive amenity at the moment to something (Mr Abrahams) That is right, sir. The company goes that is modern and 21st Century, will be a substantial back to the 18th century. One of the group public benefit. However, in the course of the companies. construction of the Farringdon site, you are going to have the massive disruption— 10599. When did you start working in the market? (Mr Abrahams) Thirty-seven years ago. 10589. LORD YOUNG OF NORWOOD GREEN: That bit I understand. I thought I heard you refer to 10600. When did you start trading on your own? the eVects afterwards in terms of the operation of (Mr Abrahams) 1991. Crossrail— 10601. You say in your paragraph 6 that there are 10590. MR DINGEMANS: I am sorry, that was certain aspects of Crossrail that concern you. What simply to illustrate the diVerence between the 1965 are those? Act and the 1973 Act. We are in the 1965 Act, which (Mr Abrahams) Because of the experience that I have is the construction of the works. In the 1973 Act, had in relation to road closure, road closure, I feel, which was brought in, that would be if you were could have a dramatic eVect on the operation of suVering losses as a result of the use of the works. We Smithfield in general. are not going to make that claim because there will be no losses that we can identify. It was simply to 10602. What was your experience? illustrate that. (Mr Abrahams) It was during the closure of what is known as West Poultry Avenue, where the road was closed due to proposed works on a tunnel beneath 10591. LORD YOUNG OF NORWOOD GREEN: that road. One of my companies was severely Thank you for that clarification. disrupted and business was grossly aVected, so much so, that we had to purchase another site and move to 10592. MR DINGEMANS: If it is all right with your another site. Fortunately, we had the resources to do Lordships, I propose to call Mr George Abrahams that, otherwise it could have been, really, the end of first, simply because he started work earliest and is that particular company. keenest to get away. He is at page 52 of the bundle. 10603. You are not at the Lindsey Street end of the MrGeorgeChristopherAbrahams, Sworn market, are you? Examined byMrDingemans (Mr Abrahams) No, sir.

10593. MR DINGEMANS: You have been sworn 10604. However, you say in paragraph 8 that you outside. Can you give their Lordships your full have concerns for the Lindsey Street end of the name, please? market. What are those? Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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(Mr Abrahams) Because a market is a market and 10611. A “live account” means? you need a collection of companies to make a market. (Mr Abrahams) An active account; so somebody It is no good just me being there on my own; that coming in and buying and purchasing. would not constitute a market. So I am concerned that my colleagues on Smithﬁeld would, or could, 10612. MR DINGEMANS: Thank you very much. experience the same conditions that I experienced during the closure of West Poultry Avenue. Cross-examined byMrMould

10605. You were able to move. If anyone wanted to 10613. MR MOULD: Good morning, Mr move from the Lindsey Street end of the market is Abraham. there space into which they can now move? (Mr Abrahams) Good morning. (Mr Abrahams) At this moment in time there is not, no. 10614. You said, I think, that your principal or certainly one of your main concerns was what might 10606. What do you think will be the eVect of the result from access to the market being stopped up removal, if there is a removal, of loading and during the construction of the works. unloading bays in Lindsey Street? (Mr Abrahams) Could you just amplify— (Mr Abrahams) Again, I think if we could take it back to its simplest form: we all shop on a weekly and 10615. Road closures. sometimes daily basis, and we try to get as near as (Mr Abrahams) Road closure, yes. possible to where we are going to shop. If we take away loading bays it will just restrict where customers can load and unload on Smithfield, and maybe they 10616. I wonder if we could put up, please, page 038. will think twice about coming. I just want to be clear where we are on that. I do not know if you can see that, but can you see clause 3 on that page, headed: “Vehicular Access to and around 10607. In terms of the hygiene legislation, is your the Market”? trade carcass or boxed? (Mr Abrahams) Yes. (Mr Abrahams) It is predominantly boxed, wrapped and packaged. 10617. You will see that one of the contractual commitments that we are proposing to oVer to you 10608. Does that mean it is exposed to the air at all? and other tenants of the market is in constructing the (Mr Abrahams) Not directly, but, again, as I say, it is authorised works we will, at all times, maintain wrapped and packaged, so it is not directly exposed vehicular access through Lindsey Street and to the air. vehicular access around the market. We say that access for that purpose includes access for 38 and 44- 10609. I think we will hear from some others involved tonne vehicles. So far as your business is concerned, in the carcass trade. Perhaps you can just give some in the light of that unqualified commitment, will you indication of the hygiene levels that are imposed be able to maintain access for your business upon the market. throughout the construction works? (Mr Abrahams) We have had to fall into the new EU (Mr Abrahams) Well, as light follows day, if you are legislation some years ago, hence the millions of giving us that undertaking, then that undertaking pounds that was spent on refurbishing the Smithfield will not aVect my business. Market site. The tenants did have to embark on major refurbishment of the internal parts of their 10618. Thank you very much. In regard to loading stalls, of which refrigeration is a major, major part. bays, I think you said that was a concern that you Also, I know we have mentioned contamination to were expressing on behalf of other traders at the the food and meat itself, but we are yet to know how eastern end of the market rather than one that you airborne pollution will aVect the filters, etcetera of expected specifically to aVect your own business, is our refrigeration, which may be something that we that right? have overlooked. (Mr Abrahams) I do have a company at the western end of the Lindsey Street end of the market. 10610. Can I just finish with this: some indication of the number of customers that you deal with each 10619. We have given a commitment in relation to week? loading bays, it is at page 39. You will appreciate this (Mr Abrahams) Yes. On a group basis we would have commitment was given in relation to the original somewhere in the region, at its busiest times, of 2,000 scheme proposals. Do you remember I described live accounts per week. those in opening earlier, which would involve digging Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association out and providing an escalator box beneath the 10626. What I am saying in simple terms is if you are basement? able to claim compensation under the current state of (Mr Abrahams) Yes. the law for losses that result from you being deprived of the use of your loading bays, that would overcome 10620. I said that our position in the event that we are the concern in relation to that point that you able to follow the revised scheme, which would do presented to the Committee this morning, would it away with that aspect of the works, was that we not? would not need to obstruct or deprive access to any (Mr Abrahams) I believe that my advocate has of the loading bays on the market side the Lindsey explained that the current method of compensation is Street, do you remember that? not right for our case. That is my belief. (Mr Abrahams) Yes. 10627. I have made a particular point to you, I will not put it again because I can deal with it later, but 10621. Staying with that point, if then we proceed that point is what I wanted to make. with those revised proposals, your business and those of other traders within the market would not be aVected as regard loss of loading bays, would it? 10628. BARONESS FOOKES: Before you (Mr Abrahams) The latest plans that I saw leave continue, Mr Mould, the speed with which Lindsey Street narrowed and I feel that would compensation is received I imagine is key to anyone impinge on the working of Smithfield. running a business. How swiftly would compensation come? 10622. What we have said is, and Mr Berryman can 10629. MR MOULD: I think the answer to that is, confirm this I hope in a few moments’ time, that it depends. certainly on the market side, that is on the western side the Lindsey Street, we would expect to be able to 10630. BARONESS FOOKES: I dare say it does. keep those loading bays open at all times during the construction of the revised scheme. If that is right, that would satisfy your concerns, would it? 10631. MR MOULD: If a claimant came forward (Mr Abrahams) No, it would not because, as I say, on and said, ”Look, during the course of the last six the last plans that I saw, Lindsey Street was months you’ve been carrying out works, as a result of narrowed, so that would restrict vehicular access. which I have been unable to gain access to my loading bay for three days a week. Here is a schedule of the events in question. These are the trading losses that I 10623. Insofar as the original scheme was concerned, have suVered as a result of that”, then I dare say that I do not need to refer again to what is said on the page the Promoter, or in that case the nominated there, Mr Dingemans has referred to that, but undertaker and their representatives who are fielding presumably your position is that as market tenants claims of that kind, would react to that relatively you have a right to use those loading bays as part and quickly. I cannot say any more than that. parcel of your right to occupy your premises? (Mr Abrahams) That is correct. 10632. BARONESS FOOKES: I would not be happy if that was the assurance I was given. 10624. I can tell you that my position as a lawyer is this. If that is right, and I believe it to be right as an 10633. MR MOULD: I cannot give your Ladyship analysis of your position, if the eVect of our works is any better assurance because these are matters that to deprive you of the use of that right, as a result of will be the subject of more detailed arrangements as which you suVer loss, you would be able to recover the scheme roles out. What we have said to you, for compensation in respect of that loss because we example, is there is a small claims scheme. Do you would be depriving you of a legal right that you recall that we mentioned that in our evidence to you? would otherwise enjoy in the absence of the works, do That is something which is the subject of an you see the point? information paper, I think. If the sort of claim that (Mr Abrahams) Yes. your Ladyship has in mind was one that was relatively small in nature, I cannot remember 10625. If that is right, given that your concern to their whether we have given any financial limit for claims Lordships today is with an adequate right to of that kind, but the small claims scheme is intended compensation being available to yourself and other and designed precisely to enable relatively limited tenants, that would satisfy that concern so far as the financial claims for losses which occur to residential loading bays are concerned, would it not? and commercial operations and occupiers during the (Mr Abrahams) I am afraid you have lost me. I do not construction of Crossrail to be dealt with on a know what point you are trying to make. relatively speedy basis without the need, as Mr Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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Dingemans would put it, to involve the lawyers that you deliver on the undertaking and that any unnecessarily. obstructions will be removed promptly and speedily because that really is the best defence that Mr 10634. Given that we do not expect, for the reasons Abrahams can have in relation to his business rather that have been given—Mr Berryman can explain this than the cumbersome pursuit of the compensation further if necessary—that there will be any signiﬁcant after the event. and prolonged obstruction of loading bays around the market, including, as that undertaking indicates, 10640. MR MOULD: My Lord, if I may say so and in Lindsey Street, I would have thought that it is fair forgive me for interrupting you, it was because we to assume that the sort of claims that your Ladyship completely share that objective. The whole thrust of has in mind are likely to fall within the embrace of our approach to the works at Smithﬁeld, just as it is that small claims scheme, which, as I say, is already to all the other worksites in Central London, is that something which is provided for in our proposals and we are looking to prevent as far as we reasonably can is referred to in one of the information papers. rather than having to cure. That is why in relation to these Petitioners, just as in relation to many, many 10635. BARONESS FOOKES: In practice, Mr others who are aVected by work sites and Mould, when you are running a business, you have construction works for Crossrail throughout Central probably got enough problems without having to London, we have established a detailed series of work out very carefully what the losses might be, how arrangements to control and manage the inevitable you present them. It is all an added diYculty for the impacts that may otherwise arise from the traders. construction of this major scheme. That is why it is really quite wrong for my learned friend to suggest 10636. MR MOULD: Of course, as I am reminded, that this series of undertakings, that are now to be and a very fair point, the concern you express about reduced to contractual form in relation to these practically making a claim and getting the money in traders, is somehow exceptional. This is a typical your pocket applies equally under the arrangements example of the range of protective measures that we which are proposed by the market traders as it does are oVering to property owners and occupiers who under the arrangements that we propose. Whether or are within the vicinity of the Crossrail works not your claim is recoverable, you have still got to throughout the scheme. It is founded on the very bring forward the evidence to show that you have detailed construction code arrangements that you suVered a loss and persuade the person who is paying have been told about which we are committed to. We you the compensation to accept it. Put shortly, a have used the phrase ”best practice” and that means common theme of all our proposals in whatever form what it says, we are committed to delivering best they may take is that you have got to prove causation. practice in the construction of this railway. That is as high as I am able to put it, very high indeed in relation 10637. LORD YOUNG OF NORWOOD GREEN: to the prevention as opposed to the cure side of the I am more interested in prevention than the cure. equation.

10638. MR MOULD: So are we. 10641. LORD YOUNG OF NORWOOD GREEN: I welcome that point. Could you address the other 10639. LORD YOUNG OF NORWOOD GREEN: point that Mr Abrahams made, the narrowing point? You have given an undertaking, you have assessed the situation and you believe that you will not impede 10642. MR MOULD: There will be no narrowing of the use of the loading bays, that is one part. You Lindsey Street under the revised scheme. believe the undertaker can carry out the operations of construction without impeding the use of the loading 10643. LORD BROOKE OF ALVERTHORPE: bays. The other point that Mr Abrahams made that Mr Abrahams, I do not want to delay you in getting did concern me a bit was the question of vehicular to your bed! access because he felt the road was likely to be (Mr Abrahams) In actual fact, my Lord, I am going narrowed as a result of the operation. I wonder if you back to work. can cover that. The point I really want to make is we all know that with complex building operations the 10644. I live in Battersea and I was drawing on my theory is that you are not going to impede the loading New Covent Garden experience. There the wagons bays. The practice might be, I do not know, that arrive late at night. When I have gone into Covent somebody delivering something will park in front of Garden at six in the morning it has been pretty quiet the loading bays and impede the access. It seems to and most of them have departed. Is it not a similar me that what I want to hear is that during the course operation that you run, that much of it takes place of these building operations you are going to ensure during the night or is it quite diVerent? The second Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association question to Mr Mould afterwards is, are you going to (Mr Abrahams) My Lord, if I can make a comment. work through the night? I am sure that when Terminal 5 opened all the (Mr Abrahams) My Lord, it is very much the same. travellers who had their luggage lost had the same We do get traYc arriving late afternoon so that they assurance and I would imagine if you spoke to them can be unloaded. They like to get in the queue and get now they would probably not go to travel through unloaded and away. One of our businesses starts Terminal 5 again. taking product at 11 pm the following night. You are absolutely right in your perception that it is not quite 10650. It is because one is talking about risk and there but almost a 24-hour operation. is always a chance that something unforeseen may happen that one has the fallback, undesirable and 10645. But most of it comes during the night? tedious as it may be, of being able to make a claim for (Mr Abrahams) Deliveries come in, so the deliveries compensation. come in, they are moved around the premises, orders are collated together and they go out during the early 10651. LORD SNAPE: My colleague has just morning. remarked, Lord Chairman, that it is a bit ominous that that is the first time this project has been 10646. MR MOULD: I am very bad at retaining compared with Terminal 5! these numbers, but the position broadly—I can be precise about this later in the morning if necessary— 10652. MR MOULD: Not by us, I should say. is there is no overlap at all between the main working hours of the market and us starting our operations. I 10653. LORD SNAPE: If I may, Mr Mould, I think we start setting up in the morning at 7 am and would like to return to Baroness Fookes’ point earlier the main works will start on a daily basis at 8 am. I and quote your own words. You said, ”Well, if we believe I am right, Mr Abraham will tell me if I have had the case of Mr Abrahams being aVected over a got it wrong, the main working hours at Smithfield, period of six months and let’s say during that time, certainly in terms of delivery, have finished by 7 am. three days a week loading bays were blocked, he (Mr Abrahams) Yes, that would be so, not an exact would have recourse . . . ” as you outlined it ” . . . to science but near that. submit evidence of that kind. I do not know how many staV Mr Abrahams employs, but presumably one of them would then be detached from their 10647. Thank you very much indeed. normal duties to put together this evidence instead of the matter being decided in the comparative 10648. LORD JONES OF CHELTENHAM: Lord tranquillity of this Committee room, it will be for Chairman, I just wanted to speak to Mr Mould. Is it someone else to decide whether or not Mr Abrahams not within the Promoter’s interest to cause any has a case. I would guess that procedure would not be disruption to these loading bays, because the last completed in let us say another three months. In nine thing you want to do is to have to put your hand in months’ time that business of Mr Abrahams could your pocket and produce some compensation. The suVer considerable losses whether or not he is only thing that might interfere is if one of your eventually compensated. I realise you made the point delivery vehicles accidentally breaks down in Lindsey that under the proposals put forward by these Street. From what you have said, I gather that Petitioners it would be necessary to accumulate deliveries will not be made from Lindsey Street to evidence to support any claim, but there is a degree your site? of certainty about the proposal in the market traders Petition which does not exist under the proposals that 10649. MR MOULD: There will be deliveries made have been put to them so far. to Lindsey Street, but obviously given the working hours arrangements that I have just identified, those 10654. MR MOULD: My Lord, with respect, that is deliveries will be taking place outside of the hours not right: there is no greater degree of certainty. when deliveries are being made to the market. The Insofar as this particular point is concerned, that is to two will not, on the basis of what we expect, coincide. say loss of trade through being unable to use loading As I said, there will be no narrowing of Lindsey bays, there is no diVerence at all between our position Street. On the face of it, the risk of the concern that as regards the extent and nature of the compensation Mr Abrahams has put forward to you actually being right and position of Mr Dingemans because in realised on the face of what we know is very small. relation to the loss of the loading bay, as I have That is to say that he will actually in practice find stated, compensation would be recoverable and that himself unable to gain access to a loading bay in compensation would embrace not only proprietary Lindsey Street during the early hours of the morning loss but also consequential loss of trade, loss of when his meat is being delivered. business. There is no diVerence whatsoever in terms Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association of compensation right between our proposals and my 10663. What actually happens? Is this enforced by the learned friend’s proposals insofar as loss of loading City of London Environmental Health oYcers? bays are concerned. Moreover, it must follow that (Mr Abrahams) It is sub-contracted to meat hygiene there is no diVerence between us as regards the services, which comes under the auspices of Defra. practical challenge of making good a claim of that kind as and when it arose. My Lord, I would 10664. What do they do? respectfully reject the suggestion that on that point (Mr Abrahams) They inspect Smithfield. there is any question for your Lordships to resolve in relation to this Petition. The challenge of making a 10665. I know they do, but how do they do it? claim is one that will apply whether or not, taken (Mr Abrahams) They physically enter our premises more broadly and in the round, one has our approach and then inspect from the floor up to the ceiling and to compensation or the Petitioner’s approach to everything in between. compensation. I should say, my answer to my Lady was of course to take an extreme example and say, ”This is how that might work”. I wish to reiterate, if 10666. Is there a level? Presumably it is particulate I may, we simply do not expect that anything like that contamination, is it? level of disruption has any prospect of occurring in (Mr Abrahams) In relation to dust? relation to the loading bays in Lindsey Street for reasons that I have expressed and which hopefully 10667. Yes. your Lordships have exposed through the questions (Mr Abrahams) What we are talking about is an event that my Lord and others have put to me. of an explosion of airborne particles above the norm.

10655. BARONESS FOOKES: That means, Mr 10668. Is there a level? Mould, that the undertakings on loading bays in ﬁve (Mr Abrahams) If there is, I do not know what that can be strengthened owing to the change in the plans level is. because you said ”reasonable endeavours”. 10669. There is always dust in the air and presumably 10656. MR MOULD: They can be strengthened somebody has set a level above which it shall not go under the revised scheme because we could say the if the meat is going to be exposed to it. undertaker will maintain loading bays on the market (Mr Abrahams) If you are asking what that level is, side of Lindsey Street throughout the scheme of my Lord, I do not know. works. 10670. That is way I wondered whether you were the 10657. BARONESS FOOKES: That will go in, right person to ask. I think it would be quite useful to will it? know. Mr Dingemans is nodding again and I think he can tell us by one means or another. 10658. MR MOULD: I see no reason why it should not. 10671. LORD YOUNG OF NORWOOD GREEN: The inspections take place on a daily basis? 10659. BARONESS FOOKES: Good. (Mr Abrahams) Yes, they do, my Lord.

10660. CHAIRMAN: Mr Abrahams, I know you 10672. How many times a day? want to get oV. Are you the right person to ask (Mr Abrahams) They would be ever present on about dust? Smithﬁeld and you could be visited two or three times (Mr Abrahams) Yes, I think you can ask me about a day. There are random inspections across the dust being an asthmatic! various sites?

10661. The level of contamination by dust is 10673. LORD JONES OF CHELTENHAM: Mr presumably set out in regulations as a result of some Abrahams, in long ago days Smithﬁeld was used as a EU law, is that right? place of public executions because the conditions (Mr Abrahams) I do not know the exact parameters were so bad that they could not be made any worse of the level of dust. by burnings at the stake. How far do the traders contaminate the area already and how can you 10662. I think that is the usual route. I see Mr separate that contamination from what will occur Dingemans is nodding. with Crossrail? (Mr Abrahams) EU legislation denotes that you (Mr Abrahams) Good question, I would like to have should take precautions a timeout to think about that! Processed: 14-08-2008 19:55:21 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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10674. LORD YOUNG OF NORWOOD GREEN: 10683. I think in paragraph two of your statement Are there still burnings at the stake? you give a bit of background, may I skip that and (Mr Abrahams) I am sure there are one or two meat three. I think you also give some details of the hygiene oYcers that they would like to burn at the Association in paragraph four, again, may I skip stake! that. Paragraph five I think has been covered by evidence from the Promoter about the layout, so may Re-examined byMrDingemans I skip. Paragraph six, can you tell us what happened in relation to the refurbishment of the market? (Mr Lawrence) Yes. In the early 90s the 10675. MR DINGEMANS: Just one, if that is all refurbishment of Smithfield Market had to go on right. Page 85 of our bundle with the witness because of the new rules and regulations of the EEC. statement. You were asked about the right that you The Corporation spent a considerable amount of have to park. If one looks at (c) is this what is money on refurbishing the market and each tenant promised to you by the Corporation of London, spent a considerable amount of money refitting their which is: ”The right in common with all others having stalls up to the standards. like right on all days from Monday to Friday and on Saturdays and Sundays at such times as are specified by the Committee to pass over and along the roads, 10684. You mention the refrigeration part and in pavements and passages within the Wholesale paragraph seven you mention the underground car Market for the sole purpose of loading and park. How important are the parking spaces both on unloading goods at the service entrance to the the ramp and the underground car park to the roadways”, that is what is promised under your lease, market? is that right? (Mr Lawrence) Absolutely vital. (Mr Abrahams) I believe that is right, yes. 10685. Do you know whether those parking spaces 10676. I will come on to the significance of that later are demised to you or are they owned by the but thank you. Might Mr Abrahams be released? Corporation? (Mr Lawrence) They are all owned by the Corporation. 10677. CHAIRMAN: Mr Abrahams, thank you very much. You certainly do not need to stay and you can go back to your work. 10686. I think in paragraph eight you break down the trade. Can you tell the Committee very briefly what is the diVerence between boxed meat and carcass meat? The witness withdrew (Mr Lawrence) The boxed meat is, which George Abrahams just explained, they deal in just boxed and After a short break wrapped goods. Carcass tenants, and I am one of them, deal in carcass meat, hind quarters and fore 10678. CHAIRMAN: Welcome back. Mr quarters of beef, whole pigs, whole lambs and then Dingemans, can you call your next witness, please. my staV cut them up from ten at night onwards.

10679. MR DINGEMANS: Yes, Mr Greg 10687. You mention in paragraph nine the Lawrence, please. He is at page one of your bundle. regulations for the supply of meat, can you give us a bit more detail in relation to that? How many inspectors work permanently in Smithﬁeld Market? MrGregLawrence, Sworn (Mr Lawrence) You have got seven meat inspectors Examined byMrJamesDingemans permanently16 on site and one vet permanently on site.

10680. MR DINGEMANS: Mr Lawrence, you have 10688. Can I ask you to look at page 108 and 109 of been sworn outside. Can you tell their Lordships the bundle. I think this will come up and I hope this your name? is an answer to my Lord Chairman’s question in (Mr Lawrence) Gregory Alfred Lawrence. relation to the regulations and baseline. Baseline, there is a bit of material here about baselines and 10681. What is your occupation? quality technical reports giving details about the (Mr Lawrence) Meat wholesaler. development since 1997 and air quality management areas. He says that the area around Smithfield 10682. What is your role in relation to the Smithfield Market, this is the baseline assessment in the ES, Market Tenants Association? makes appropriate reference to the air quality (Mr Lawrence) I am the Chairman of Smithfield 16 Market Tenants Association. Smithfield Market, Buro Happold 2005 (SCN-20080502-030) Committee Ref: A59, Baseline, Environmental—Air Quality, Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association management areas which are currently in force 10695. When do you finish selling? around the Smithfield area. Do you yourself know (Mr Lawrence) We finish trading approximately at 9 what the limits are or can you tell us how they work am, but there are other tenants who finish between 10 in practice? am and 11 am. (Mr Lawrence) No, I do not know what the limits are. At this particular time the meat inspectors and the 10696. Paragraph 14 and 15 I think you deal with vets, if they see any dust or rubbish on any cut of meat Lindsey Street and I think you have commented on it is immediately condemned. that. So far as car parking is concerned, how many bays are in Lindsey Street? 10689. I think there is some more material which (Mr Lawrence) I think there are approximately 12. continues on 108 and 109. We can come back to that. Where does the carcass meat come from so far as the 10697. In paragraph 16 of your witness statement you market is concerned? mentioned a figure, is that not right? (Mr Lawrence) All around the UK. (Mr Lawrence) Sorry, I may be a little bit tired. It would be approximately 18, 20, if you can give me a 10690. How does it get into the market itself? Can it couple of seconds I will count it in my mind. be carried through open air? (Mr Lawrence) Yes, it arrives by refrigerated 10698. Because, in fact, not all the parking bays are containers. It locks on to the dock shelter, then by loading bays are they? robotic arm, with the help of staV, it is unloaded and (Mr Lawrence) If I could go back to that. It is then it is placed into each individual tenant’s shop. approximately 18 to 20 loading bays, yes. Could you ask the question again. 10691. I think you produced a copy of your lease, which we have already looked at. Can I turn on to 10699. Are there any other parking areas in Lindsey your paragraph 12 where you set out your concerns Street as well? about the works. Is that right? (Mr Lawrence) No, not in Lindsey street. (Mr Lawrence) That is correct. 10700. It is just loading bays? 10692. Can you go through those very quickly? What (Mr Lawrence) Yes. about the impact of traYc around the market? Mr Mould has made a point to the eVect that it is hoped 10701. And you comment on pollution in paragraph that if the escalator scheme is moved there will be no 20 of your statement. Can you deal with the question loss of parking or loading bays in Lindsey Street, is of rodent population? What is the eVect of any rodent that going to be right? infestation? (Mr Lawrence) No, I do not think that is right (Mr Lawrence) Well, if there would be any rodent because I think Mr Mould did mention just on the infestation it would be an absolute disaster, market side on Lindsey Street that there are loading imagewise as well as for customers. It would be an bays on both sides of Lindsey Street and any loss of absolute disaster. any loading bays would be a dramatic eVect on Smithfield. The impact of the flow of traYc around 10702. You mention in paragraphs 23-25 the market, as we know, is one-way. You have only refrigeration and other services, and you have noted got to get one vehicle holding up the flow of the traYc that the Promoter stated that it will require the for a number of minutes and it is just a bottleneck all nominated undertaker to ensure essential supplies the way around and it is solid and it is a big are not interrupted and, indeed, obviously if the distraction. escalator does not go ahead in the market basement car park, that will make things easier. Can you 10693. So far as the hours of operation of the market indicate the importance of the refrigeration to the are concerned, Mr Abrahams said what his hours market? were, can you tell us what your hours of operation are (Mr Lawrence) We are not allowed to trade without at your end? refrigeration. In the cutting plants, what we call the (Mr Lawrence) The business hours? cutting rooms have to be below 7 degrees and the meat has to be below 7 degrees before we are allowed 10694. Yes, when did you go into work last night and to start cutting the meat. It is absolutely vital to the what was happening? running of the businesses. (Mr Lawrence) I arrived at work at 11 pm last night. My staV started at 9 pm to receive the meat, cutting 10703. And then in paragraphs 28 and 29 can I the meat into individual prime cuts, then it is identify what you consider to be the losses that wrapped and hopefully we sell it. market traders are likely to sustain? Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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(Mr Lawrence) Sorry, in what way? rat—present company excepted, of course! But, seriously, reading the paragraph: “For that reason it 10704. You have identified in your witness statement is essential that proper and eVective mitigation the two types of losses that you think market traders measures are put in place to control the spread of are most likely to sustain. pollution and vermin,” presumably you have (Mr Lawrence) Yes. For the carcass trade more so mitigation measures on-going in relation to that? than the boxed trade the contamination of meat and (Mr Lawrence) On-going, yes. Every tenant has a the traYc issue is absolutely vital to the running of contract. the market. 10711. LORD YOUNG OF NORWOOD GREEN: 10705. MR DINGEMANS: Thank you very much. Thank you. Examined byTheCommittee 10712. CHAIRMAN: Mr Mould? 10706. LORD BROOKE OF ALVETHORPE: Could I just ask a question? What is the ratio between Cross-examined byMrMould the traders who are dealing in carcasses and those dealing with boxes? (Mr Lawrence) 50:50 roughly. 10713. MR MOULD: And the reason for that, of course, is perfectly straightforward: it is clearly in 10707. And on paragraph 25 in your witness your economic interest and those of your members to statement, on the issue of failure of the refrigeration keep to the absolute minimum the amount of meat system, do you have insurance to cover you for loss you have to put to waste? arising from that? For instance, I have personal (Mr Lawrence) Absolutely. insurance and if my deep freeze collapses I get compensation from my insurance company. 10714. Insofar as insurance is concerned, you were (Mr Lawrence) Yes, we do. There has been a problem asked a question about insurance and a damaged in the past when the summer months come obviously, refrigeration unit. Do you also have insurance in but the answer is yes, we do have insurance. relation to meat that is wasted due to failure to meet pollution control standards? 10708. LORD YOUNG OF NORWOOD GREEN: (Mr Lawrence) No. I have two questions. In relation to the point that was asked about the trading time, again for me to get a sense of perspective of trading in the market, does the 10715. Why is that? Because such insurance is not majority of trading take place during night hours, available because your members do not regard it as a finishing approximately I think you said nine suYciently likely risk that it is worth seeking o’clock? If I said 90 per cent of trading finishes at nine insurance on? o’clock would I be exaggerating? Could you give me (Mr Lawrence) Could you just clarify what you mean the right figures? about the meat — (Mr Lawrence) No. You would be fairly correct. 10716. Yes. You have explained in paragraphs 20-22 10709. So it would be fair to describe it as principally of your statement, put simply, that you have to meet a night-time operation, but with some extension? exacting hygiene standards, and clearly there is a risk (Mr Lawrence) Yes, it would, and in the last two, that from time to time, for whatever reason, meat is three, four years, because of the dreaded congestion inspected and found not to meet those standards and charge, we have had to start earlier and earlier, and has to be put to waste. That is right, is it not? now the hours are more horrific than they have ever (Mr Lawrence) On the fresh carcass side meat would been. But the cutting carcass shops start never be accepted if it was not in the proper approximately at ten o’clock and finish round about condition. That is the first point. On the second part, nine o’clock. The box shops start round about the box shops, if the vacuum busts or whatever, when midnight, between midnight and one, and some of it comes in vacuum-packed, then it would not have so them do go on longer than nine o’clock in the much life on it. morning.

10710. And in relation to paragraph 22, I can 10717. So there are two risks there, and if those risks understand your concern about vermin but you are realised from time to time then obviously the know what they say in London, I forget what it is, income that would otherwise be obtained from those every one of us is no more than six feet away from a goods would be lost? Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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(Mr Lawrence) Yes. hope will happen, for that scheme creating dust and other inevitable disturbances due to major 10718. My question is, I think you have said you do construction works? not insure against those particular risks and nor do (Mr Lawrence) That is correct. your members, is that right? (Mr Lawrence) Yes. 10728. But, as we have seen, you actually wholeheartedly support that scheme, do you not? 10719. Is the reason for that either because insurance (Mr Lawrence) Yes, we do. Would you like the is not available for those risks, albeit that you have reason? asked for it, or because your members have chosen not to pursue any insurance arrangements in relation 10729. No, I am happy with that. to those particular risks because they do not regard them as suYciently realistic to merit protection 10730. LORD SNAPE: I should think it is the last against? thing he wants to hear! (Mr Lawrence) As the market stands there is not too (Mr Lawrence) The reason we do support this scheme much meat that does get condemned anyway. is we are talking about a derelict building, part of which has been empty I think for approximately 12/ 10720. So it is the second of those reasons? 15 years and the other part has been derelict for the (Mr Lawrence) Possibly, yes. last 30 years, and we do not think it does the market any favours. We fully support the development 10721. The other question I want to ask you about is scheme because we think it will not only enhance this; a point touched on by my Lord, Lord Brooke. Smithfield Market but we are convinced it will Smithfield Market is located within the City of enhance the area and will bring more custom to the London, is it not? market, and that is the reason we support the scheme. (Mr Lawrence) Yes. 10731. And presumably in making that judgment you 10722. And, as we know, the City of London is a very have taken the view that the works to construct that vibrant and successful commercial district and is scheme can be carried out without causing severe or subject to regular redevelopment and development significant damage to the operation of the market schemes. You are aware of that, are you not? whilst construction is going on? (Mr Lawrence) Yes. (Mr Lawrence) Yes, but when we have discussed it with Thornfield we have undertakings with 10723. I think it is fair to say that the Smithfield area Thornfield that the market will not be stopped, and I itself has experienced relatively little large-scale think, if my memory is correct, they are starting at ten redevelopment in recent years, but that has not been o’clock in the morning. for want of trying, has it, because there is one particular scheme that has been in gestation for some 10732. LORD BROOKE OF ALVETHORPE: years now, the scheme for the redevelopment of the Would you be claiming compensation from them in general market building, promoted by Thornfield the same way as you are from Crossrail? Properties. (Mr Lawrence) We have not discussed that. (Mr Lawrence) That is correct. 10733. Have you that in mind? 10724. And that is a scheme which the Market (Mr Lawrence) Yes, we have. Traders’ Association is fully in support of, is it not? (Mr Lawrence) Yes. 10734. MR MOULD: But, as things stand, you have been prepared to express your unqualified support 10725. And you spoke in support of it at a recent for that scheme without securing any special public inquiry and expressed your frustration at the arrangements as regards compensation for loss of fact it was being held up by the heritage lobby? trade and business with the developers? (Mr Lawrence) That is correct. (Mr Lawrence) That is correct, but we will be discussing that. 10726. Now, that is quite a significant scheme, is it not? 10735. No doubt you will. You have touched on (Mr Lawrence) That is correct. working hours and you said they are going to be starting at ten o’clock in the morning. Are you aware 10727. And there is clearly potential for that scheme, that the core construction hours for Crossrail are when it is being constructed in the event that between the hours of eight o’clock in the morning and planning permission is obtained, which is what you six o’clock in the evening? Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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(Mr Lawrence) Yes, I am. (Mr Lawrence) Yes, I do.

10736. And I think you said that, insofar as the 10745. And insofar as that is concerned, on the face carcass meat operation is concerned, they tend to of it, we are talking about an overlap of an hour a ﬁnish at about nine in the morning? day, between eight and nine in the morning? (Mr Lawrence) That is correct. (Mr Lawrence) No. There may be some deliveries that come in at eight, nine, ten o’clock, half past ten, eleven o’clock. 10737. Although, in fact, the hours are getting a bit earlier for various reasons that you gave earlier? 10746. Deliveries of meat? (Mr Lawrence) I think it would be impossible for us (Mr Lawrence) Yes. to start any earlier than we do now.

10747. But that is relatively unusual? 10738. To stop any earlier than you do now? (Mr Lawrence) Not at all. I should think you could (Mr Lawrence) And to stop. go around Smithﬁeld Market any time at seven/eight o’clock and there would be a container or two or 10739. So on that basis, so far as the carcass meat is three ready to be unloaded, and they may not be up concerned, what we are looking at is an overlap loaded until ten or half past ten in the morning. between market operations and Crossrail dust- producing operations, if I can put it that way, core 10748. It is obviously more complicated than I construction activity, of about an hour a day? That thought. must follow, must it not? (Mr Lawrence) Yes, it is. (Mr Lawrence) Not really. It would be in the market hours possibly two or three hours a day, and, if the 10749. LORD YOUNG OF NORWOOD GREEN: dust is still there when the containers arrive at seven/ I would like to clarify that because I was particularly eight o’clock in the evening, the dust will still be in concerned about that. As I understood you, you said the air. in reply to my question that the bulk of your business, 90 per cent, you agreed with me, ﬁnished at nine 10740. So the concern is that dust might be lingering o’clock, and then you went on to say that there are from the previous day’s construction at the Lindsey some boxed meat people who continue trading until Street worksite? about ten or eleven o’clock? (Mr Lawrence) Possibly. (Mr Lawrence) Yes.

10741. But I think my point is right, that on basis of 10750. But are you now modifying that assessment the hours you have given and our hours, there will on and saying carcass delivery goes on until — the face of it be an hour’s overlap, between eight and (Mr Lawrence) No. I am sorry if I did not make nine in the morning? myself clear. You have one particular supplier from (Mr Lawrence) And you are saying they start at Scotland who would very rarely unload before ten eight o’clock? o’clock in the morning anyway, very rarely. But there is a 10 per cent—two or three containers get unloaded after the time I did say. 10742. The core construction activities are intended to start at eight o’clock. 10751. So that is carcass you refer to, and that is (Mr Lawrence) What about the deliveries? within that 10 per cent? (Mr Lawrence) Yes. 10743. That would be the same. (Mr Lawrence) Well, that would be the case but it 10752. And then that includes the box trading would not overlap for one hour, it would overlap for afterwards? two or three hours, and some of the tenants which I (Mr Lawrence) That is correct, yes. did discuss earlier on do not ﬁnish until ten/eleven o’clock anyway. 10753. BARONESS FOOKES: And I think that point was made by the previous witness as well, if I 10744. Just to complete the point, I am concerned recall, that everything did not stop dead. with core construction activities because those are the (Mr Lawrence) If I could just add, because it may be activities that are going to generate dust, do you see of some interest, the market hours oYcially are until the point? midday anyway. OYcially. Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10754. LORD BROOKE OF ALVETHORPE: As (Mr Lawrence) That is right. this is a relatively small number that run into normal working hours of the day, would be the best way of 10763. And what is in the middle building? describing it —- would there be any basis on which, (Mr Lawrence) That is the Poultry Market. for example, the people coming from Scotland could be asked and appropriately compensated for 10764. And is all of that part empty as well, is that coming earlier? right? (Mr Lawrence) It does not work that way, my Lord, (Mr Lawrence) No. That is all occupied by tenants because it may not suit the tenants. Certain tenants and Corporation’s works. have not got enough room to have that extra container in overnight; they have to wait until they 10765. And at the moment does the proposed scheme cut their meat, pack it, and about eight, nine or ten have planning permission? o’clock they get another container in ready for that (Mr Lawrence) I think it has gone through the evening — inquiry stage and they are just waiting for the result of the inquiry. 10755. It is volume? (Mr Lawrence) Yes. 10766. And are your lawyers talking with them? (Mr Lawrence) Yes. 10756. LORD YOUNG OF NORWOOD GREEN: It sounds like just-in-time delivery! 10767. MR DINGEMANS: Thank you very much. Might Mr Lawrence be released?

10757. CHAIRMAN: What is going on in relation 10768. CHAIRMAN: Yes, certainly. to carcass meat about nine o’clock in the morning? Some of it is being unloaded from containers who The witness withdrew come from Scotland, is it? (Mr Lawrence) I just used Scotland as an example, that is a regular one, but you may have a container MrPhilipAndrade, Sworn from Devon, even Ireland. Examination byMrDingemans

10769. MR DINGEMANS: Mr Andrade, I think 10758. But they are being unloaded from incoming the vast majority of the questions you were going to containers and being put into the stores or whatever? deal with have now been picked up and answered by (Mr Lawrence) Tenants’ premises, yes. others, but can I show you your witness statement which is paragraphs 1-10? I think you have read that 10759. And all that time the inspectors are buzzing outside, is that right? around, are they? (Mr Andrade) Yes. (Mr Lawrence) Yes, they are. 10770. And is that witness statement true to the best of your knowledge, information and belief? Re-examined byMrDingemans (Mr Andrade) Yes.

10760. MR DINGEMANS: I have a supplementary 10771. And can you just tell their Lordships what on page 141 of the bundle. You were asked about your business is? another scheme. Is that proposed scheme at the (Mr Andrade) We are wholesale traders in pork, bottom left hand corner of the map, as we look at it? lamb and mutton, carcass trade. (Mr Lawrence) Yes, it is. 10772. And so far as you are concerned, are you now at the market every day of the week? 10761. EVectively four rectangles, and it is the first of (Mr Andrade) No. In the last three weeks I have those counting from left to right? stopped going in. I am still a director; still a (Mr Lawrence) Yes, and if you come across to the shareholder. triangle between Snow Hill [and Smithfield Street] that is it as well. 10773. MR DINGEMANS: Thank you very much. I am not sure there are any other specific matters that 10762. And the main meat market is between that one need to be raised, but Mr Andrade is here to answer and the next one [East Poultry and Grand Avenue]. any questions in relation to market operations. Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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Examined byTheCommittee (Mr Andrade) Yes. If it were not for the locking on we would be totally exposed and have no 10774. CHAIRMAN: What time of the morning do temperature control. The trouble is that invariably you stop? the service corridor, which is an avenue through (Mr Andrade) We stop trading by about eight o’clock which the meat passes, is often subject to people in the morning but we then start boning out meat, coming in and out, and automatic doors are opened and we will have one or two members of staV staying and, best endeavours notwithstanding, you do run on to bone out some legs of pork or shoulders of lamb the risk of something coming in. We do our best to or mutton, so that the operation for the next day is stop that but it does happen. moved forward a stage or two. So whilst we are not trading very much after eight o’clock we are often 10780. So you just have these automatic doors? There quite busy for at least a couple of hours later. is no filter or anything — (Mr Andrade) There are automatic doors which open 10775. You still have carcasses — and close at either end of the service corridor, and (Mr Andrade) Yes, we are full of carcasses. when a lorry locks on there are moments when as it approaches the locking-on facility it is still in the 10776. LORD BROOKE OF ALVETHORPE: Do ambient temperature and there is an element of the you have insurance? open air and the environment still impinging on it, (Mr Andrade) We have insurance, and I believe we but we try and minimise those. have deterioration of stock as part of that but that has been very diYcult to utilise, to gain benefit from. We have found it very hard to claim when we have 10781. And what are the chances of airborne refrigeration breakdown and you have to stipulate pollution outside penetrating into that service the cause. It is a nightmare, my Lord. It really is. corridor? (Mr Andrade) Significant. 10777. Do you use the Government inspectors in support of your claims? 10782. But you have not had any incidences of (Mr Andrade) Yes, you have to authenticate your closure through airborne pollution in recent years? losses through surrendering documents which will (Mr Andrade) We have never had airborne pollution validate your claim. being given as a reason for closure. We do have problems with contamination of diVerent kinds. That 10778. LORD YOUNG OF NORWOOD GREEN: has happened. I was looking at paragraph 9 of your statement, and I am an ignorant layman in this matter, where you talk about trading in carcass meat which is not packaged 10783. For example? in any way and that the risk of contamination by (Mr Andrade) Well, in the lorry, for example, there airborne pollution is high, and I can well understand might be oil from the runners overhead that will drop that and your concerns. But then it goes on to say that on to the carcasses, and if the inspector sees anything it was for that reason that as part of the like that he will become very active and we will have refurbishment you have these sealed lock-on docking to take extreme measures to make the meat fit, or stations, so I presume it comes out of the lorry into have it condemned and pay to have it taken away. that sealed docking station and then into your site where you cut up the carcass, et cetera. Can you just describe that bit of it? 10784. And the inspectors are also measuring the (Mr Andrade) Yes, my Lord. The idea is to maintain airborne pollution in your service corridors and your temperature control as far as possible, and by general site area? keeping the lorry locked on to an airtight seal it (Mr Andrade) I have no doubt they will be. minimises the risk of temperature rising and the meat will be received in your premises at the right 10785. Are they? temperature, under 7 degrees. Of course, there is also (Mr Andrade) I have never seen that happening at the the other fact that, by virtue of being under cover all moment. It does not mean it has not happened; I have the time, it is protected from contamination. not yet seen it. I believe they will probably start doing that when it becomes apparent there might be a risk. 10779. Will not that help you in terms of protecting you from dust that is generated as a result of these other activities? It will not eliminate it, but does it 10786. LORD YOUNG OF NORWOOD GREEN: help? Thank you. Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10787. CHAIRMAN: Mr Mould? plastic bags which are licensed with a licence number and tied up, so the meat that goes out—the carcass meat, I must stress—does not go out in boxes; it goes Cross-examined byMrMould 17 out in bags. 10788. MR MOULD: I have one point of clariﬁcation on page 55 in the Petitioner’s bundle. I 10794. So it comes in sealed and goes out sealed? want to be clear on the arrangements with regard to (Mr Andrade) It comes in as exposed carcass meat these sealed bays. We have a plan of the layout of the under conditions designed to minimise market here, and I think it is right that the contamination through those lock-ons. hermetically sealed bays we have been talking about are the bays on the northern and southern side of the 10795. And it goes out in a sealed — building? (Mr Andrade) It goes out in packages. Bags. (Mr Andrade) Yes.

10789. So is this right, that carcass meat, I think you 10796. And presumably it goes out suYciently sealed said, must come in for delivery via the sealed bays? to be fit for use by the people buying it? The (Mr Andrade) Yes. restaurateurs? (Mr Andrade) Yes, of course. 10790. So any carcass meat that is coming in after eight o’clock in the morning is coming in and being 10797. I think you said that customers do park from delivered into the market through a completely time to time along the Lindsey Street bays? sealed process on bays that are located on the north (Mr Andrade) Yes. and south side of the market? (Mr Andrade) That is the theory, yes. 10798. But, in practice, if it were felt, presumably, that it would be desirable during the periods of 10791. And it is, as a matter of the legal requirements particular construction activity on the Lindsey Street placed upon you, the practice, is it not? worksite to the east here, that customers should be (Mr Andrade) We do our best to make it practice. encouraged at least temporarily to collect their meat Invariably there are moments when the sliding doors between the hours of seven and nine in the morning, open at either end. In practice we do adhere very well shall we say, or thereafter, from a more remote to the notions of keeping it hermetically sealed. location around the market complex, that would be something that could be arranged, could it not? 10792. So carcass meat is coming in. If we assume (Mr Andrade) It was easy a generation ago, when the that after the hour of eight o’clock in the morning market was intersecting thoroughfares, but with the there is work going on on the Lindsey Street work site refurbishment we now have just one avenue down the which is at source generating some dust, that carcass middle and anybody with meat would have to go meat being delivered during those hours is coming in round and round. Since the end of thoroughfares under what is, provided it works properly, intended there is just one flow of traYc, and I can imagine it to be a wholly sealed process, as you have just being havoc. described, and on bays located away from that part of the road network which is in the vicinity of the 10799. LORD YOUNG OF NORWOOD GREEN: Crossrail work site? Can you show us the flow? (Mr Andrade) Yes, when it comes to the entrance of (Mr Andrade) Yes. meat into the market we are removed. The loading 18 bays are not very near. Obviously those two and the eastern part are closer — 10800. MR MOULD: I am going to put up another plan. The traYc is going clockwise around here — 10793. But they are, of course, sealed. We have just (Mr Andrade) There is just one way of traYc and established that. Insofar as carcass meat going out to everyone would have to go round the perimeter now, customers is concerned, is the position that the whereas before it could go across and up and down. carcass meat is processed within the market after It is constrained now. The traYc flow is frightening. delivery and then is boxed up to be taken away by restaurateurs and so forth? 10801. We have marked on this plan the parking and (Mr Andrade) No. We do not box up our carcass loading bays and you can see that there are bays meat because we are not allowed to let carcass meat available on each side of the market complex, are be in contact with cardboard. We have to put it in there not?

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(Mr Andrade) There are bays available, yes. relationship with the local public authorities, with the local authority and with the health authorities, and it 10802. Well, it is something that remains to be done would seem here in relation to dust and health factors but the Corporation of London are a traYc authority arising, and I have been going very quickly through and also your freeholders, are they not? the expert witness documents, that there is a case for (Mr Andrade) Yes. a forum to be established that will deal with all the issues, particularly in relation to health, and I wonder 10803. One of the things we have agreed as part of the why you have not decided to pull the health arrangements that are set out in the deed that we were authorities into it to try to meet some of the points showing the Committee earlier is that Crossrail, the which have been raised today. nominated undertaker, the Corporation as traYc management authority and, indeed, your 10811. MR MOULD: I do not think we have representative organisation, Mr Lawrence, and the decided not to pull all the relevant authorities in: I Tenants’ Association, should get together and should think so far as we have identified relevant authorities, consult and think about arrangements that need to be insofar as dust and environmental controls are made to manage the flow of traYc and parking and concerned that is a matter for the City. They have so forth whilst the Crossrail works are going on, so statutory regulatory powers for dust suppression that the best possible solution to those arrangements under Schedule 7 of the Bill. Likewise we have can be achieved. established arrangements for traYc management and (Mr Andrade) That would be a very laudable goal; liaison with the City Corporation, and we will have we do try that. You can imagine people trying to get fora for liaison more generally which will broadly in and out very quickly, it is always a pressure on us. follow the model of the Spitalfields body along the We are very vulnerable, fragile in that respect. route. The reason why the Spitalfields one has been advanced rather is because there was so much 10804. The only point I am making is that is what we concern about alleged misinformation in have said we will do. We have said we will have those consultation rounds at the time when the House of discussions which will include your association? Commons heard petitioners from Spitalfields (Mr Andrade) Yes, you have. petitioning.

10805. So the opportunity is there? 10812. LORD BROOKE OF ALVETHORPE: But (Mr Andrade) There is always scope for discussion, there was an understandable concern that the works yes. development then may have an impact on the health of the local population and similarly we are dealing 10806. LORD BROOKE OF ALVETHORPE: with health issues. We can deal with the parking, yes, When was that suggestion made? nearer the works taking place on a tripartite basis, but I would have thought there might be a case now, 10807. MR MOULD: No later than February 2006. would you not agree, that the three parties involved—the City, yourselves and the traders and 10808. LORD BROOKE OF ALVETHORPE: So their representatives—should be talking about the there has been no action on that since? health aspects and taking all steps to mitigate any potential problems that might arise? 10809. MR MOULD: Well, certainly the Corporation and ourselves will have been discussing 10813. MR MOULD: I do agree, and I hope I am traYc management measures, but the time for right in saying that the contractual arrangements set detailed arrangements being set in order to resolve out in the draft deed, which reﬂect assurances given from time to time during the construction phase how earlier, are intended to enable that to happen. You traYc should be managed around the market is when will, of course, appreciate that this resolves down to we are much clearer as to what the work is going to the question of dust — be. For example, when we are absolutely clear what is going to be happening on the Lindsey Street worksite. 10814. LORD BROOKE OF ALVETHORPE: Yes. 10810. LORD BROOKE OF ALVETHORPE: But if we can go back to what happened in Spitalﬁelds, 10815. MR MOULD: — and it is precisely in where a forum has been established and this relation to dust management and monitoring and so Committee was anxious to ensure it was working, forth that we have these detailed arrangements set and that was in advance of the work taking place, we out in the deed. I see no reason in principle why those were making suggestions that there should be a closer discussions should not start tomorrow, if that is Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithﬁeld Market Tenants Association something that the Tenants’ Association would wish 10825. Any re-examination? to do. 10826. MR DINGEMANS: No. I think the doors 10816. LORD BROOKE OF ALVETHORPE: have been covered by the last question, thank you. And what is the witness’ response to that? (Mr Andrade) Who could be against it? 10827. CHAIRMAN: Thank you for coming.

10817. MR MOULD: I think we are all ferociously The witness withdrew agreeing with each other, really! I have no further questions. 10828. MR DINGEMANS: That is my evidence.

Examined byTheCommittee 10829. CHAIRMAN: Any evidence, Mr Mould?

10818. CHAIRMAN: Are the bays in Lindsey 10830. MR MOULD: Mr Berryman very briefly, Street sealed? just to deal with three points. (Mr Andrade) No, they are just parking bays. Loading bays you could call them. MrKeithBerryman, recalled Examination byMrMould 10819. So there is no unloading of meat there at all? (Mr Andrade) No. There is no ingress of carcass meat from there. 10831. MR MOULD: Mr Berryman, you are well 19 known to everybody so I20 need not take time introducing you. Can we just touch very quickly on 10820. LORD YOUNG OF NORWOOD GREEN: the position as regards the proposed works for the Can we see the loading bays? eastern ticket hall, page 054? (Mr Andrade) The loading bays are confined to the (Mr Berryman) Yes. This describes the works areas where carcass meat is handled, and that is on included in the Bill, and consists of a number of one side of the east market and both sides of the significant elements on the Lindsey Street site itself, west market. but perhaps most significantly in the matters that we are discussing it includes an escalator box which goes 10821. Four on the top of this diagram and then right underneath Smithfield Market and would have two — required the roof of the market to be temporarily (Mr Andrade) Yes. There are four on the top, yes, supported whilst it was constructed. As I said a lot in two each side on the west and the east and just two on the Commons, anything in engineering is possible, it the south side of the west—the ones in Lindsey Street is just a question of how much it costs, and this really are just areas where vehicles can park. came into the category of anything is possible but it would have been quite a diYcult job. Fortunately we 10822. CHAIRMAN: And what about the central were saved by the fact that the decision was made to corridor, the Lindsey Street end? What sort of door close the Thameslink branch, which goes across the or closure is there there? middle, and that gave us the opportunity to simplify (Mr Andrade) Do you know, I should know the the arrangements considerably (slide 056 displayed) answer. I walk through it every day and I never by turning the escalators through 90 degrees so they thought about that. It has not got the same sliding almost intersect with the Thameslink lines—these doors that the service corridors have, but there is a would have been impossible to build if Thameslink shutter that comes down, I think. Am I right? had still been in operation because they would have been so very close to the operating line—and rearrange the escalator access to get down to the level 10823. MR DINGEMANS: I would hate to give of the platforms more conveniently without going evidence but I am being told that it is plastic strips. into the market building. At the same time a decision Would you agree with that? was made that this station entrance would not have a (Mr Andrade) Yes, you walk through those. ticket oYce, only machines, and that also allowed us to significantly reduce the size of the works. So it has 10824. CHAIRMAN: Do not worry, Mr been possible to produce a scheme now which fits Dingemans. Lots of counsel have given evidence so entirely within this box, the Lindsey Street box, far! without going into the market space at all.

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10832. Just staying with this, I want the Committee concrete mixers and spoil lorries to go into the site, to be hearing it from you as to what the likelihood is and they will come out and go down that way. of this particular provision being the final outcome. We have said “best endeavours” to produce a scheme 10837. That is simply a matter of dust-sheeting being along these lines rather than the earlier scheme. Can eYcient, is it? you help the Committee: what would you expect to (Mr Berryman) It is keeping everything wet, properly be the scheme that is built in this case? washing the wheels of the lorries, and so on, and (Mr Berryman) I would be absolutely astonished if sheeting all the vehicles that are used, yes, my Lord. the scheme that is built is not something similar to this. The only reason we kept the “best endeavours” 10838. MR MOULD: As we are on dust thing in rather than just saying a straight “we’ll do it suppression measures, could you explain the other this way” is, obviously, on the advice of lawyers, measures that would be put in place in relation to this because we have not quite finished our site worksite? investigation in the area. For the life of me, I cannot (Mr Berryman) I think the first activity that goes on think of anything that we could discover at this stage on here is demolition of the existing building. In a which would prevent us doing that scheme as it is. way, that is probably the activity that would have the potential to generate the most dust. The way that that 10833. MR MOULD: Thank you. Can we then, will be dealt with is the fairly standard way now in please, turn to another point, and that is the Central London these many years, where the building question— is completely sheeted with plastic sheets which are taped together to keep any dust which is generated inside that plastic sheeting structure. Also, in this 10834. LORD YOUNG OF NORWOOD GREEN: case, because this is a category 3 site, we will be using You say you have done some site investigation. continuously running water sprays into the site whilst (Mr Berryman) Yes, we have done the first round of the demolition takes place, because the best way of site investigation. This is not a matter that has come suppressing dust is with water. Once the demolition up very much but, obviously, site investigation is an is finished— ongoing process, and the ground in this—not so much just here but where the station platforms are— 10839. LORD YOUNG OF NORWOOD GREEN: is the most diYcult geology on the site. So there is the Is there any asbestos on the site? potential for some faults or something across the site. (Mr Berryman) We do not know, my Lord. However, although that would create diYculty with Unfortunately, the only way you can find that out is the tunnelling it would not aVect the construction of by an intrusive survey. If there is asbestos on the this box, if such a thing was found. I cannot really site—and, of course, I should emphasise it is hard for think of anything which we are likely to find which us to do an intrusive survey until we have got the will prevent this box from being built. powers which will be conferred by this Bill—

10835. CHAIRMAN: Where is the access going to 10840. I know if there is asbestos then you have got a be for the works on this box? whole range of other— (Mr Berryman) The access will be mainly along this (Mr Berryman) In fact, my Lord, the measures that side, here, the Lindsey Street side. The one-way we will be using for this category 3 site are not system around here comes round like that, and what dissimilar to those which are used in asbestos sites. we will be doing is using the parking bays on this side of the road during the day for our delivery vehicles to 10841. For a lay person like myself, how eVective are bring things in. We will also be taking, even though the dust suppression techniques that you use? Can we have no works in it, part of the lower basement of you give us a percentage eVectiveness? the market building to ﬁnd room for our site oYces, (Mr Berryman) I am afraid I cannot, my Lord. All I because, you can take it from me, the site is very can say is it is very eVective. If you go to these higher constrictive, so to ﬁnd some place for site level activities. I have no real recollection of a dust accommodation we will be using the lower basement complaint—or any recollection of a dust of the east market. The deliveries will be mainly via complaint— Lindsey Street on the non-market side. 10842. There are no validated sort of records of the 10836. Is there going to be spoil excavated and taken eVectiveness of dust suppression techniques? That away in lorries? surprises me, given that you say you are using (Mr Berryman) There will be spoil excavated and techniques similar to those that you would use with taken away in lorries. That will go out through this— asbestos. There is no way that somebody is going to there will also be a site entrance here to allow say: “I think that works pretty well”. Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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(Mr Berryman) I think, my Lord, there probably 10846. MR MOULD: Just touching on the question have been studies done, but I am not quite sure where of working out, which has been raised— we would ﬁnd them. It is a kind of environmental health issue. 10847. LORD BROOKE OF ALVERTHORPE:21 Before we go there, could I continue with a question 10843. MR MOULD: Can I take a leaf from my on the Buro Happold report, which is page 108 and learned friend and just give a bit of evidence? We refer 109 of the bundle from the Petitioner. At the top of in the deed to a dust monitoring regime and I think it page 109: “I have been asked to consider whether is fair to say, from evidence given by those who are actionable or airborne dust could be set, such that technically experienced in this particular ﬁeld in the any excedence of these would lead to further control other place, that it has been found that the most measures . . . etc.” It goes on about the3 Millennium eVective way of ensuring that these physical measures Dome and about the Arsenal Football ground. It that your Lordship has been told about actually work talks about site perimeter action level, which I is by having real time monitoring of the actual works recommend is set for TSP at 0.25 mg/m .” There is a on the particular site in question as they are going on. recommendation in there. Have you accepted that? Real-time monitoring enables you to test dust and (Mr Berryman) We certainly accept the need to set other particulate concentrations in the atmosphere aside perimeter action level. That is the reason for the and you can then, obviously, take action if it looks monitoring that we will be carrying out all the time. like there is a need to revisit the scene, or whatever it That level is not particularly onerous, but the level might be, and action to be taken on the basis of what will be agreed with the local authority. is happening day-to-day. That is what we have agreed to do in this case. 10848. It will be agreed with the local authority? (Mr Berryman) I was going to come on to that as part (Mr Berryman) It will be agreed with the local of this level of suppression— authority.

10844. CHAIRMAN: You are going to give 10849. Do you think it will, perhaps, be more evidence as a witness! demanding than that? (Mr Berryman) I think I had better not go into that, (Mr Berryman) That looks pretty good to me, my Lord. I think, perhaps, what Lord Young was actually. asking was: do we have any records from other jobs where we can demonstrate that this kind of technique 10850. BARONESS FOOKES: “Pretty good” in is successful? I am sure there are papers on the matter which respect? in the relevant professional journals. 10851. LORD BROOKE OF ALVERTHORPE: It 10845. LORD YOUNG OF NORWOOD GREEN: is a nice, relaxed one! I was just trying to address the understandable (Mr Berryman) My Lady, I think we need to agree concerns of the traders, that there is this significant that with the local authority. building operation going on and they are concerned 3 that there is going to be significant air pollution. I was 10852. CHAIRMAN: The trouble is, Mr Berryman, trying to investigate the eVectiveness of the methods that you do not know how easy it is to achieve a figure that you are going to use. It seems to me that they are of 0.25 mg/m . quite strict measures and, in theory, at least, ought to (Mr Berryman) We do not know how easy it is. be pretty eVective, although we have not got any absolute figures on this. The back-up is that you are 10853. You do not. continuously monitoring. (Mr Berryman) We do not specifically, no, but that is (Mr Berryman) That is correct, my Lord. When we the kind of level that one looks for. finish the demolition of this we have got to construct the diaphragm walls, which will be built around the 10854. MR MOULD: One other point which is to site. They will be built using bentonite slurry and do with traYc and parking. ready-mix concrete. We will not be batching on site, (Mr Berryman) You did ask me about hours of so we will not be generating any dust by making working. concrete on site, and then the excavation of the structure will be constructed in the normal way. 10855. I was going to come on to that. Let us deal Again, it is a question of keeping the site clean and with the hours of working. Insofar as the Lindsey tidy, keeping vehicles well washed before they go out Street worksite is concerned, can you confirm: on a on to the road, damping down all the time and 21 sheeting vehicles as they make their way past the Quality, Smithfield Market, Buro Happold 2005 (SCN- market to go away to tip. 20080502-043) Committee Ref: A59, Tier 3 controls, Environmental—Air Processed: 14-08-2008 19:55:22 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithﬁeld Market Tenants Association daily basis, when are the main dust-generating 10860. On the eastern side of Lindsey Street. activities likely to start in an ordinary working (Mr Berryman) On the eastern side of Lindsay Street. weekday? (Mr Berryman) They would normally start at eight 10861. MR MOULD: Thank you very much indeed, o’clock on a normal working day. This site will Mr Berryman. generally speaking be within the normal working hours, which are eight till six. There is a slight amount 10862. LORD BROOKE OF ALVERTHORPE:I of tunnelling to be done; the escalator shaft from the have a couple of questions, just picking that up. bottom of this escalator (there is another escalator Presumably the market does not work at the which goes down that way which will be in tunnel) weekend? will need to be done on a 24-hour basis but that will (Mr Berryman) I am afraid I do not know, my Lord. be deep underground, and any dust which is generated will not, generally speaking, come to the 10863. You will know the answer to the next surface. So, mostly, this will be done during the question: will you be working at the weekend? normal working hours. (Mr Berryman) We will be working on Saturday mornings, my Lord. Those are the normal working 10856. Just to complete the picture, working hours hours. Sundays and so on, apart from tunnelling end at what time in the afternoon? operations, will be just for maintenance and non- (Mr Berryman) Six. noisy, non-heavy work.

10864. How long will you be working on site— 10857. Can we then, please, come to the loading bay months, years? parking issue, for which22 I will put up the plan that we (Mr Berryman) Years, I fear. After we have ﬁnished showed earlier? This is a plan showing the location of building the station, of course, there will be a loading and parking bays around the four corners of development above the site of the station, so it will the market complex. Can we focus on Lindsey probably be a period of ﬁve or six years, in total. Street, please. Under the revised scheme for the Lindsey Street works, will it be necessary physically 10865. No work on Saturday afternoons and to hoard-oV any part of Lindsey Street? Sundays? (Mr Berryman) No, it is not intended to hoard (Mr Berryman) Those are our core working hours anything oV here. There will be a hoarding line along and that can only be varied by agreement with the the pavement, along the footpath, at that side, but local authority. when we are not making deliveries (and our deliveries will be generally made during the day) that area will be available for parking. So shortly before about 10866. The answer is no working on Saturday eight o’clock those spaces will still be available for afternoons and Sundays? general parking. (Mr Berryman) Unless by agreement with the local authority, my Lord.

10858. Just in order to complete the picture, as 10867. Is there is a desire on your part, in the first regards Smithfield as a whole, we can see that traYc instance, to ask the local authority for their presently moves broadly in a one-way system around agreement. the market complex. It is proposed that Crossrail (Mr Berryman) I would not like to give such a traYc should be routed around at least a part of the promise because although the contract will be let on Smithfield Market complex, is it not? the basis of no working on Saturdays or Sundays, (Mr Berryman) Yes, that is right, to follow the same events may militate that it is necessary to do so. route as is followed by vehicles now. 10868. So it is not planned at the moment? 10859. Is it proposed that any of the loading or (Mr Berryman) It is not planned at the moment, parking areas at-street which are shown on that plan certainly, no. should be obstructed or hoarded-oV or interfered with for the purposes of the Crossrail scheme or not? Cross-examined byMrDingemans (Mr Berryman) Certainly none of them will be hoarded-oV. The only ones which will be interfered 10869. MR DINGEMANS: May I ask a few with during the day from just before eight o’clock questions? Mr Berryman, your current proposals in onwards will be that very small group there. relation to Lindsey Street, where you said the 22 hoarding would be to the right-hand side as we look and Loading Bays (SCN-20080502-034) at it of the parking bays which are furthest from the Crossrail Ref: P73, Smithfield Market—Location of Parking Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association market. That is if the escalator is not built under the (Mr Berryman) Oh yes. That is right. market, is that right? (Mr Berryman) That is correct, yes. 10877. Things being what they are and dust suppression measures being operated by humans, 10870. At the moment, the Bill still makes provision from time to time there are going to be failures in for the nominated undertaker and the Promoter to those operations, are there not? build under the market. It gives them those powers, (Mr Berryman) We certainly strive to avoid that, but does it not? it is always possible. (Mr Berryman) It does, that is correct, although you will understand, as a lawyer, the meaning of the 10878. MR DINGEMANS: Thank you very much. expression “best endeavours”. We will not be doing that unless something completely— 10879. MR MOULD: There are no questions from me. 10871. If you then have to do it you will be falling back on those compensation provisions that you say 10880. CHAIRMAN: There is no trigger figure for are adequate for us to deal with at the moment. dust at which the various measures which you put in (Mr Berryman) Yes, I believe so. your deed will come into force? (Mr Berryman) As I said earlier, my Lord, my understanding was that the trigger level needs to be 10872. So far as parking bays are concerned, on any agreed with the local authority, who are responsible basis you are going to take—if we look at the east for those matters. market—the parking under that area, leaving the west market for the market. Is that right? 10881. I suppose it would have to be agreed to take (Mr Berryman) We are, yes. There are two floors of account of the inspectors and what they are going to parking under here and we will be taking one of them. require inside the Smithfield Market. So these two floors will still be here and one floor will (Mr Berryman) That is right, my Lord. be here. 10882. There must be a figure for this. 10873. That, as a matter of common-sense, is going to aVect the number of people that can get in and out 10883. MR MOULD: Yes, there must be. I am of the market readily, is it not? afraid I do not know what it is oVhand. (Mr Berryman) Yes. My understanding is that these car parks are rarely full, or even partially full at night. 10884. CHAIRMAN: I have been trying to get it all Yes, you are right, of course, it would aVect the morning. parking availability. 10885. MR MOULD: We will try and get you a note 10874. So far as dust suppression is concerned (I will on that early next week. not take you through clause 7 of the deed), at the moment there is no trigger level, is there? 10886. CHAIRMAN: Anyway, you do not know it? (Mr Berryman) No, there is not; that will need to be set by the local authority, in accordance with— 10887. MR MOULD: My Lord, I do not know it oVhand, I am afraid. 10875. This is right, is it not: that the Promoter has resisted an undertaking that if dust levels rise to a 10888. CHAIRMAN: Thank you very much. We certain amount that aVects the working of the market are in the parties’ hand. It is on the dot of 1pm. There they will agree to stop work? has been a certain ambition that we should not have (Mr Berryman) I think “agree to stop working” is to come back this afternoon, but I seriously doubt something which will be quite diYcult. What we are whether we will get through the remaining business in going to do is agree to take the necessary steps to half an hour. rectify the situation. The reason I say that is that there are many construction activities which once 10889. MR MOULD: I think you may be right. they have started, if you stop them, it is quite What I have provided for you, and I have circulated, dangerous. That is why we would be very reluctant to is a comprehensive written note of my closing give that kind of undertaking. submission.

10876. The reality is—and I think you have fairly said 10890. CHAIRMAN: I have cast an eye over it and this in your evidence—this is a worksite that is going it raises what I would have thought were some fairly to exist for a number of years. controversial points. I think Mr Dingemans is Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association nodding. I preface this, I do not think that the 10904. MR DINGEMANS: My Lords, I have Committee is very much inclined to recommend a already set out, I hope in some detail in the opening, clause being put in the Bill. This whole matter has our legal position. In some respects, it does not get been in the hands of the Law Commission. They have better or worse than that because that is the law and made recommendations and according to what you those are the problems that confront us. I will have say, they are very much along the lines of the market some specific comments on, for example, when a traders, but the Government has done nothing about right to compensation is triggered, because I think it. This is plainly a matter for general public my learned friend was suggesting in his questions that legislation and to put a clause in the Bill for one the market traders have an enforceable right to particular party to the Crossrail Bill procedure seems apply. That would be great and, of course, part of our to me an unlikely prospect, it would have to be problem is we do not, it is the corporation that has it. introduced by the Department and I should not think If I am right, I will then finish by saying, “Well, if he they would do it. thinks I ought to have the right to compensation, and we do not have it or you doubt we have it, please 10891. MR MOULD: I think that is fair. make it clear in the deed”, but I suspect that is probably 20, 25 minutes. 10892. CHAIRMAN: Whether you have got any instructions on this or have you? 10905. CHAIRMAN: Could we start again at 2pm.

10893. MR MOULD: Having glanced at my note, The Committee adjourned from 1.03pm until 2.00pm you will see that that is essentially the burden of our position on the substance of the issue between us. It 10906. CHAIRMAN: Welcome back. Mr Mould, would not only be a matter which would be of great there is this question of paragraph 27 of the interest to the Department for Transport, but Petitioner’s Petition. I have not looked in detail at obviously it would be of great interest to the your note but, as I understand it, what they are Department for Communities and Local asking for is exactly the same as what the Law Government who are parly overseeing the land Commission recommended. compensation legislation. 10907. MR MOULD: No, it is not. I am sorry, I 10894. CHAIRMAN: It is very wide ranging and to misheard what your Lordship said about that before introduce it as a single clause in this Bill seems to me lunch. That was why I appeared to step in, but I to be an unlikely method of making progress. thought I had heard you diVerently. It is quite the opposite. The Law Commission did not recommend 10895. MR MOULD: That would be our position, what they are asking for. I can show you that in a yes. moment or two. It is fair to say that what is being sought here is the very extension of the right to make 10896. CHAIRMAN: We are back to the wording of a claim under Section 10 of the Compulsory Purchase the deed. Act 1965, which the Law Commission said it would not recommend to Government because if such a 10897. MR MOULD: Yes. change was to be made, it involved major legislative and policy considerations as to where the balance should fall between public works and public ﬁnance 10898. CHAIRMAN: On that, I suspect there will and the impact on private interests which ought to be be a certain amount of argument. considered as a matter of generality by Government and by Parliament. That in short is what we say 10899. MR MOULD: Yes, it is whether you think precisely because of that entirely sensible judgment there is such an exceptional case. made by the Law Commission, accepted by Government in its response to their report. It would 10900. CHAIRMAN: Is it arguments we are going not be appropriate, with respect, for your Lordship’s to be listening to today? Committee to recommend that such a far-reaching change to the established legislation in relation to 10901. MR MOULD: It is. compulsory purchase and compensation be made in the context of a speciﬁc scheme of works, that is to 10902. CHAIRMAN: And it is not going to be say the Crossrail scheme. that quick. 10908. CHAIRMAN: In any event, whatever is 10903. MR MOULD: I suspect I will be about 15 done, if anything is ever done, it ought to be in the minutes. public general Bill. Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10909. MR MOULD: Exactly so, that is our 10915. CHAIRMAN: Where are we in your notes? position. The answer to that—

10916. MR MOULD:23 This is paragraph 13 onwards 10910. CHAIRMAN: Do not let me distract you, where I start with a key point. I made the point, it but I just wanted to start with that. I got it wrong. would be a fundamental change in public policy on compensation. Before I come to taking you to the detail of this, can I summarise where we have got to 10911. MR MOULD: I will respond to the way my on the facts this morning. As regards the risk here on learned friend seeks to meet that point in a moment. the facts, and I am making my submissions on the I am going to come to my note in a moment, but can basis that we proceed with the revised scheme of I set the scene in this way. The issue here is whether works for the reason that Mr Berryman gave in terms the market tenants should be able to recover of time on a daily basis, it is clear that the interaction compensation for any losses resulting from the between the operation of the market and the Crossrail works, even if Crossrail has done performance of core construction works on the everything reasonably practicable to prevent the Lindsey Street work site, which is where the focus of problem which gives rise to that loss, so it is an concern is here, will normally be limited to about an indemnity, based not on fault but on the event. hour a day, between the hours of eight and nine in the morning. As regards that hour, you have been told that meat is delivered during that hour in sealed 10912. An example being, to pick up on the evidence containers. It is delivered into the market through you have heard, a dust escape where the Promoter, bespoke up-to-date sealed loading bays. the nominated undertaker, had taken all reasonable measures practical to prevent that escape occurring. 10917. CHAIRMAN: And not from Lindsey Street? Our submission is that being the position, this Petition now has nothing to do with anything special about the Smithfield traders because exactly the same 10918. MR MOULD: Not from Lindsey Street. It is issue, that is to say the residual risk that there will be taken out to customers’ vans and lorries and cars and an escape of dust or there will be some other form of so forth also in sealed plastic bags. That is no more disturbance which causes a commercial neighbouring than an example of a general point made by the occupier to suVer loss, notwithstanding that the traders themselves today and that is that they have to nominated undertaker has done everything meet exacting standards of hygiene and pollution reasonably practicable to prevent that happening— control in relation to their products, for obvious reasons, and in order to do that, they have to make sure that, as a general rule, the risk that their meat, 10913. CHAIRMAN: It is injurious aVection rather whether it be carcass meat or boxed meat, is subject than disturbance, is it not? to any sort of contamination as it passes within and out of the market, that that risk is kept to the absolute minimum. You have heard that there is a general rule 10914. MR MOULD: Yes, but I am using the that they have been successful in achieving that state phrase disturbance not in the technical sense but just of aVairs. someone being disturbed by noise or by dust. That is the situation. That cannot sensibly be said to be 10919. The next point is that we are committed to unique to these traders, it is a risk which has the liaising with both the City Corporation and the potential to be realised in relation to shopkeepers Market Traders’ Association in relation to the who are running shops in the vicinity of the Bond identification of measures to minimise dust Street Station work sites, including, for example, penetration into the market itself. As we said in people who are selling sandwiches in sandwich shops answer to my Lord, Lord Brooke’s question, we will in the vicinity of the work sites in Oxford Street, that bring forward the establishment of the liaison body kind of thing. It is just as likely, your Lordships may that we would expect to establish in due course in this think, that if such an escape occurred, case precisely for that purpose. Mr Berryman has notwithstanding everything reasonable having been explained to you that there will be physical measures done to prevent it, it did occur and dust got on to that taken at source in order to seal oV the work site, day’s sandwiches in the cold store in the sandwich which will be state of the art. We have explained that, shop, then that would be a loss of a day’s business. It and the Deed of Undertaking bears this out in Clause is the same point. This is exactly the point which the 7, monitoring and management regimes will be Law Commission considered in the report, of which established which will include the setting of you have extracts in front of you and which the Law 23 Commission did not recommended should be Undertaker and individual Smithfield Market Traders— embraced. 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2 May 2008 The Petition of Smithﬁeld Market Tenants Association appropriate trigger levels by the Corporation in 10926. LORD YOUNG OF NORWOOD GREEN: discussion with ourselves and with the traders. Of I understand that, that is a matter of site judgment, course, we do say that there must, on any reasonable but assuming there was not a safety impact, there are view, be the opportunity to manage the circumstances where you would have to suspend administration of the market during the period of operations anyway, so that should not be an opt- construction works so that that can also contribute out clause. towards keeping the risk of dust penetration within the market to the absolute minimum by, for example, 10927. MR MOULD: No, I am being lawyerly to a reducing the degree to which the entrance to the degree. Of course, what is needed on the ground in market on the eastern elevation is used during that relation to any given event will need to be judged at hour of interaction between eight and nine in the the time. What we are setting out is the basic morning. No doubt other measures— parameters. If it was a situation as basic as a lorry just not having been sheeted properly, then obviously 10920. CHAIRMAN: Whatever the door is in the that would be dealt with and the necessary measures central corridor? taken to remind operatives of the need to be very careful about this. 10921. MR MOULD: Indeed, my Lord. Those are important matters. As regards the question of dust, 10928. LORD JAMES OF BLACKHEATH: I am which is where the real issue has focused today on the thinking of something like you have a failure of seal facts, we say that taking those matters together, the on your plastic sheeting around the site, you have got risk of dust penetrating into the market and a lot of dust being generated due to the demolition contaminating meat and products within the market process. In order to minimise the possibility of is one which is very manageable and we say can fairly airborne pollution, it seems it would be prudent to be described in relation to the revised scheme as a pause for a while until you seal that again. That is minimum risk. taking into account the safety issue.

10929. MR MOULD: My Lord, you are absolutely 10922. Turning briefly to the other point raised, right. One would clearly take a view at the time as to which is the question of deliveries and lorry how far one could go in terms of limiting ongoing movements, we have confirmed that under the operations in order to enable the problem to be revised scheme there will be no physical hoardings in minimised and then to be cured. the streets surrounding the market and no narrowing of the existing highway. We are committed to maintaining lorry access throughout the construction 10930. LORD JAMES OF BLACKHEATH: If I phrase, that is set out in the deed. As regards Lindsey may pursue it further, have you considered in the Street itself, Crossrail deliveries are unlikely, given worst part of the demolition, if you like, the dirtiest the hours of working on a daily basis, to give rise to part of that process, of doing that over a weekend any significant conflict with vehicles associated with period? the market and the interference with the loading bays is unlikely to happen for that reason. 10931. MR MOULD: No, I think the diYculty of dealing with the crucial part of the construction 10923. CHAIRMAN: Could I ask you to pause for phase on that basis is that it is not just a question of a second, Lord Young has a question. dust, it is very likely that that would involve significant noise generation and things like that and we do have to think about the environmental impacts 10924. LORD YOUNG OF NORWOOD GREEN: in the round. I do stress, nothing that we have Before you move oV the dust point, I just have a considered thus far, including the assessment of these couple of points I want to establish. You are doing works through the Environmental Statement, which continuous monitoring. If during that process the involved very careful consideration of the likely risk monitor alarm sounded, what would you do? of dust escaping and penetrating into the market, have suggested that there is likely to be a significant 10925. MR MOULD: As a matter of urgency, we risk with all the measures we are proposing of a would seek to identify the cause of that alarm being problem arising. sounded and identify immediate remedial steps which should be taken in order to cure the reason for 10932. Distinguishing, of course, between dust the alarm. For the reasons Mr Berryman gave, which generation on the site and the risk of the market are essentially to do with safety, we cannot give a traders actually experiencing dust damage to their commitment that we will stop work. meat. Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10933. LORD YOUNG OF NORWOOD GREEN: scheme which is in operation and which is set out in I would not disagree but I was just trying to probe, if Information Paper C4, I think. you like, as far as I possibly could, to ascertain the circumstances, and if I could take issue with you on 10938. So that is the position on the facts and, my one point, as a question of degree, whilst you might Lord, what I would like to do now is just to go to my argue that they are not unique, they are certainly note. I am loathe to read it all out because you have diVerent. You compared it to the sandwich shop in it there, it is a verbatim note, but can I just pick up on Bond Street; it is a diVerent operation to that, the what I say are the key points, to make good my doors of the sandwich shop can be shut. But it does submission. seem to me it is diVerent in terms of the nature of the operation and the scale of it and the “possible”, even 10939. I will not trouble you with the first four if it is unlikely. So whilst I accept your point of view paragraphs. that one might not say that it was unique, I certainly do not think that is a fair comparison or an 10940. You know that the sole remaining issue before appropriate comparison to compare it to a shop in you today is the special compensation regime which Bond Street. It is a totally diVerent operation. the Association seeks. I refer in paragraph 6 to the conclusions and recommendations of the Select 10934. MR MOULD: I was seeking to draw Committee in the other place in relation to that, and attention to the degree that there was a risk of being you have the documents in front of you in the pack. impacted, if you like. We are talking about very significant construction works being carried out 10941. Paragraph 8 refers to the arrangements that throughout Central London. Of course, the we made, and the position is this: as a rule, where sensitivity of the receptor is a significant compensation is payable by a statutory undertaker to consideration, and we accepted the Committee’s view a neighbouring land owner in respect of the carrying in the other place, that for historic and operational out of public works, the amount recoverable is reasons these Petitioners were clearly sensitive limited to the depreciation in value of that land receptors and some special arrangements were owner’s aVected property. But in the case of the justified as regards compensation, which was why we market tenants what we have done is to agree that made the arrangements that we did. So the issue is not they should be able to recover not only any reduction that they are not sensitive; the issue is how far should in value of their leasehold interest but, crucially, they one go in terms of reflecting that in the should be able to recover a further amount which compensation regime. represents any consequential loss, particularly loss of trade or business, loss of profits, which resulted from 10935. The remedial and mitigation and preventative that event — measures I have just reminded your Lordships of are obviously central to that judgment because in 10942. CHAIRMAN: Just remind us again where assessing the degree of risk one needs to take account we find undertaking No 234? It is in your bundle, I what is being done in order to avoid that risk being think. realised. 24 10943. MR MOULD: It is more legible if you turn 10936. LORD YOUNG OF NORWOOD to page 42. The substance of it is set out at clause 13 GREEN: Indeed. in that draft of the deed: “In the assessment of compensation payable to the Trader as a result of an 10937. MR MOULD: I was just at the end of injurious aVection claim”, which is a claim under summarising the fact position, and I have one final section 10, “the Undertaker will include an amount point on the road and deliveries aspect. Clearly, from representing any consequential loss, whether or not what he said just before the short adjournment my reflected in the value of the land: (a) which was learned friend, his lawyers and I take a slightly caused by the construction of the authorised works, diVerent view about the degree to which interference and (b) for which the Undertaker would have been with the loading bays on the market side of Lindsey liable to pay damages if the authorised works were Street would undoubtedly sound in compensation as not authorised by the Act”. an interference with a private right, but I do not think I need to trouble your Lordships with resolving that 10944. Just to explain that last part, as your issue. It would not be appropriate to do so in light of Lordships will recall, if you bring a claim in nuisance the fact that, on the facts you now have, the in common law you recover not only a sum of money likelihood of any significant interference of that kind 24 taking place can clearly be seen to be relatively Undertaker and individual Smithfield Market Traders— limited, and I have referred to the small claims Compensation (LONDLB-23—04-042) Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association which reflects the degree to which your property has Lordships today. So they already have that in the been devalued as a result of the nuisance but also any bag, so to speak. consequential losses such as loss of trade and business which you have suVered, for example, if you 10948. Then I go to another example, which is the run a business on that land, as a result of the second point which has been raised today, which is nuisance. So if somebody causes a nuisance which the concern that traders may suVer loss of trade or damages your goods on the land you can recover the business as a result of roads around the market being cost of repairing those goods as well as the loss of obstructed because of the Crossrail works. Direct value to your freehold or leasehold interest. interference with members of the Association’s ability to gain access to their premises would provide a proper basis for a claim for compensation, so 10945. What we have done in the case of the insofar as traders do experience any significant loss of Smithfield traders is to bring their rights under the trade due to Crossrail road closures and obstructions Compensation Code into line with the common law around Smithfield which are shown directly to have position, and the significance of that is this: that interfered with their access to the market, they will in ordinarily, of course, the right under section 10, that principle have a claim for compensation, and we have is the statutory compensation claim, which, as Mr agreed they should have an extended right to recover Dingemans has explained, is the route whereby you trading and business losses in relation to that kind of get to a remedy for this kind of disruption where the that claim as well in response to the Select work has been carried out by a statutory undertaker, Committee’s report. is more limited than the position at common law because ordinarily, when one is pursuing a statutory compensation claim, you only get the money which 10949. Now, we do not expect that kind of objection represents the reduction in value of your land; you do to happen for the reasons I have given, but because not get any compensation for any loss of business or your Lordships are concerned with the point that you trade or profits that results from that. So this can never say never, if unexpectedly that kind of provision which we have undertaken to set in place in problem did happen, well then there is already under relation to this particular Petitioner is a significant our proposals a route to claim compensation in the extension of the ordinary rules which apply to other proposals we have made in response to the Select people along the route. Committee. So that is why we do say in paragraph 11 that we understand that we satisfied the Select Committee’s requirement in the other place, and 10946. In order to try and get away from what I certainly it is fair to say that in its Special Report it acknowledge are rather dry legal concepts and into did not indicate any dissatisfaction with the an attempt to say how this would work in practice I proposals that we have set out in that respect, and have quoted from the explanatory letter we sent to those are set out in the relevant register and so forth. the Association in the light of the House of Commons Committee’s recommendation, and I will just read 10950. Then I come to the key point before you that out: “One of the points about which you today, which is this: the alternative arrangements we expressed concern when addressing the Select have made do not extend the circumstances in which Committee on the Crossrail Bill related to the market tenants will have the right to make a claim compensation for losses arising from the destruction for compensation beyond those that are well- of carcasses where those carcasses were condemned established under the general law, and for the by environmental health oYcers in consequence of circumstances in which such a claim may be made dust emanating from an adjacent Crossrail working one needs just25 to look at the Law Commission’s final site. We do not expect that to happen, but in the event report at page 15 in the bundle, and it is very clearly that it did occur we can confirm that, since in these set out in paragraphs 11.4 and 11.6 of that circumstances physical damage will have occurred to document. the carcass in question by the escape of dust, the Promoter agrees that it should be included in the 10951. The short point is that which is set out in matters ranking for compensation under the paragraph 14 of my note. The eVect of the current law proposals described above.” is that market tenants will not have the right to claim for compensation of disturbance which is the 10947. So the eVect of the extended law as to what inevitable consequence of the proper performance of you can claim for under a statutory compensation the Crossrail works. In that respect, they will be in claim in those circumstances in practice does bring in 25 the right for these particular Petitioners to recover for Compulsory Purchase Code: (1) Compensation Final Report, Section 10 of the 1965 Act: injurious aVection due to the damaged stock, eVectively, which is I think one of the constructionThe Law Commission of public works, (LAW Paras COM 11.4 Noand 11.6 286) (LONDLB- Towards a principal concerns that they have put before your 23—04-0156) Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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exactly the same position as any neighbouring land then and is argued27 for by the Tenants’ Association owner (whether commercial or residential) disturbed now, and they explained why they made no such by the construction of the railway and in the same recommendation in paragraphs 11.18 and 11.20 and position as any such neighbouring land owner 11.21 of the report. disturbed by the construction of public or private development schemes, large or small, throughout 10956. What they said was this in paragraph 11.18: the country. “There was a similarly divided response to the question whether compensation for the eVect of the 10952. Under the current state of the law, such construction of the works should continue to be persons are not entitled to be indemnified for losses restricted to circumstances for which a claim would they may sustain by reason only of disturbance which have arisen at common law. Those who opposed the inevitably results from the proper performance of restriction emphasised the fact that many public building and construction works on neighbouring works constructions were on a large scale and could land. last for several years, and, therefore, were diVerent in nature from private projects for which the common 10953. Now, in its report the Commission carefully law had been designed. Those who supported it were considered whether to recommend at least in the case concerned at the diYculty of setting clear limits to the of major public projects such as Crossrail that the right, and the additional costs which would be rules should be changed so as to extend the right to caused.” claim compensation to embrace the kind of claim which the SMTA now proposes in its Petition, 10957. In conclusion at paragraph 11.20 they say: paragraph 28. The Commission considered that “Our recommendation is designed to preserve the point in response to criticism of the perceived balancing of the existing law”—that is the key unfairness of the law of compensation as it presently point—“which does not give rise to obvious anomaly applies to such projects, and it is right to note that or unfairness. We are sympathetic to the views that criticism as recorded by the Law Commission expressed by CPPRAG, that the scale of many public was voiced in essentially the same terms as had been works makes it inappropriate to apply to them the put to your Lordships by Mr Dingemans on behalf of same criteria as to private operations. However, if the Smithfield traders, and you can see that in that criterion is removed, the nature of the right paragraph 11.7 on page 16 of the bundle, where the changes. It is no longer simply compensation for loss Commission said this: that the complaint was that in of an existing right, given by the common law, but the relation to major public works the restriction of creation of a new more extensive right, applicable compensation for nuisance during the construction only to injury caused by public works. That indeed is period does not fairly reflect the loss which may be the eVect of the Land Compensation Act 1973 in caused by major public projects, and what the relation to the use of public works. However, the Review Group said was that: “The rule may cause detailed rules have been designed [in that case] to particular injustice where the construction of public produce a workable scheme with defined limits.” works (such as a highway) on neighbouring land extends over a prolonged period, causing a landowner to suVer damage or loss from noise, dust 10958. So that answers my learned friend’s point, yes, of course, the ‘73 Act as regards the operation of a and vibration.26 Such damage may also be significant, particularly if the landowner’s use of his land is for a public works scheme does embrace a more extensive trade or business which is aVected by such claim, but it has been precisely drawn by Parliament disturbance.” through that, and all the policy issues arising have been dealt with. But the Commission went on to say: 10954. So precisely the sort of situation that the “The decision whether to make a similar extension [of Smithfield traders say they face in the present case that kind] to the rights of those aVected by the and, as you see, the main thrust was on fair balance, construction period must be one of policy, taking which is the same argument put by Mr Dingemans account of the additional costs which it would entail today. for public authorities. In order to restrict the multiplicity of claims, it might be appropriate to consider practical limitations (for example, by setting 10955. Now, the position is that the Law a threshold related to the amount of the claim; or Commission declined to recommend that the rules be limits by reference to the timescale of the works, or changed in the way that was suggested by consultees the distance of the claimant’s property from the site 26 of the works). It will also be necessary to establish Compulsory Purchase Code: (1) Compensation Final Report, Section 10 of the 1965 Act: injurious aVection due to the 27 constructionThe Law Commission of public works, (LAW Para COM 11.7 (LONDLB-23—04-016 No 286) Towards a Compulsory Purchase Code: (1) Compensation Final Report, to -017) Conclusion, Paras 11.18 and 11.20 (LONDLB-23—04-021) The Law Commission (LAW COM No 286) Towards a Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association detailed rules for the assessment of the claim. carried out at sustainable cost. Member states are Detailed work of this kind must await a policy entitled to draw that fair balance as a matter of public decision on the issues of principle”. policy in formulating their land compensation systems, and I have made the submission that I set 10959. And if you turn two pages on the out in the last sentence there and I need not repeat it. recommendation at 11.23, Rule 22(2)(b), “Compensation shall be payable for any depreciation 10964. So that is the point of generality, and it is fair in the market value of the qualifying interest, and any to note that, in his note which he has supplied to you consequential loss . . . (i) which was caused by the this morning, Mr Dingemans at paragraph 2 fairly construction of the works under statutory authority; acknowledges that you cannot really see the traders’ and (ii) for which the statutory authority would have case here as anything other than raising a broad point been liable to pay damages if the construction had of general public importance, and we say he is right to not28 been authorised by statute”, so as regards the acknowledge that, and we say that the very fact that it liability the recommendation retained the structure cannot on analysis be limited to the circumstances of of the existing law under the Compulsory Purchase the tenants themselves, that it is inevitably a matter Act. that goes to the heart of the issues that the Law Commission considered so recently, reinforces our 10960. My Lord, that is our key submission, that the submission that it would not be appropriate for a Commission faced up to the points raised by the change of that kind to be the subject of any traders and they said: “No, we are not prepared to recommendation by your Lordship’s Committee in make a recommendation. If the law is going to be relation to an individual scheme. It must await changed it is a matter of far-reaching policy legislation on a more general basis. considerations; it is a matter for Government”, and in its response to that report the Government said: 10965. Having said that, I come to the attempt that “We are not going to make any change of that kind”, is nevertheless made by the Petitioners to find some and I have given you the relevant extracts from the precedent here in the arrangements which were made Government’s response at exhibit pages 44-50. by the Rail Regulator in respect of St Pancras station, and that is a thoroughly unconvincing precedent — 10961. LORD YOUNG OF NORWOOD GREEN: In paragraph 15 of your text, “Under the current 10966. CHAIRMAN: I do not think that has been state of the law such persons are not entitled to be pursued this morning. Is this something on which you indemnified for losses they may sustain by reason rely, Mr Dingemans? only of disturbance which inevitably results from the proper performance”, presumably, if the 10967. MR DINGEMANS: My Lord, what I say is performance is less than proper, then you are liable? this is evidence of circumstances where particular railways have identified a problem and addressed it 10962. MR MOULD: Yes. If the circumstances other than through the national compensation show that the works were carried out without proper scheme. I do not for a moment suggest that it is an care and attention then there would be a claim under exact analogy, and the importance is not for whether the common law in nuisance, so you would be able to it is a precedent or not because, of course, there are recover damages in that way, yes. So if the dust proper distinctions. All I am saying is what it sheeting was not properly secured and so on, then demonstrates is that the National Compensation that would follow. Code is not only the beginning and end; there are other bits. So I rely on it for that purpose, but if my 10963. My Lord, I am sorry that this is all a little bit learned friend is going to spend a long time saying it dry and detailed but it is just to set out the position is completely diVerent, then I respectfully agree. from a legal perspective. At the bottom of page 4, the human rights dimension, my learned friend touched 10968. MR MOULD: Well, I am not, because of on the case of Dennis and the RAF jets. That does not that helpful intervention, but the reasons why it is really add anything to the force of their complaint diVerent and why it does not give any sort of since the relevant human right which I have identified assistance to my learned friend are set out in there of the Convention is itself founded upon and paragraphs 20 and 21. subject to the member states drawing a “fair balance” between private property rights and the public interest in enabling meritorious public projects to be 10969. So we do say in conclusion that there is neither

28 merit in nor precedent for the SMTA’s members to be Compulsory Purchase Code: (1) Compensation Final Report, treated on an exceptional basis in the way they now Recommendations, Para 11.23 (LONDLB-23—04-023) contend for in paragraph 28 of their submission. The Law Commission (LAW COM No 286) Towards a Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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10970. The short and straightforward conclusion is proper set of protective provisions to meet those this. As regards the potential for the Crossrail works, more extensive potential impacts. Yes. albeit properly carried out, to lead to disturbance and so to loss of trade or business to commercial owner 10978. CHAIRMAN: Now, Mr Dingemans, I do occupiers of neighbouring properties, there is no not think you are going to get anywhere with a sound distinction to be drawn between the members recommendation for a new clause to go in the Bill. of the SMTA and other commercial owner occupiers of such premises in Central London, and I take, of 10979. MR DINGEMANS: No. I hope I indicated course, my Lord, Lord Young’s point in relation to this morning that in many respects we are not worried sensitivity. whether it is in the Bill or in the deed. The Petition was drafted at a stage before they had oVered us the 10971. Such disturbance in the event it occurs, and deed, and now that we have a direct contractual for the reasons we have given we think that is really route, from a point of view of the law and simplicity, highly unlikely to happen to any significant degree, which my Lady Baroness Fookes has identified, it is will be the inevitable consequence of the challenge of much easier if you have it all in one document. So constructing a major new public transport now we are into a deed, if I persuade your Lordships infrastructure scheme through the heart of a capital that it is appropriate to put in a provision, we would city. If the Select Committee were to accede to the much rather it went into the deed. Tenants’ Association’s Petition and extend to its members alone the right to be indemnified for losses 10980. My reservation is that, if I do not persuade sustained in such circumstances, then it is fair to say you and we are stuck with undertaking No 234, that we would have no sound basis for resisting the grant must not go into the deed because that would mess up of a like indemnity to all other such commercial my contractual rights by at least allowing the owner occupiers. Moreover, the precedent would argument that compensation is limited to that rather apply to future schemes of public works, and for that than for breach of contractual provisions. reason, then, we would respectfully invite the Committee not to accede to this Petition and to leave 10981. CHAIRMAN: I have the copy of the deed that matter properly for consideration elsewhere as a out here in front of me. matter of general legislation and public policy by Government and Parliament. 10982. MR DINGEMANS: My Lord, yes. May I ask your Lordships how many paragraphs you have 10972. My Lord, I think I have outstayed my in your deed, because there are two deeds floating welcome and, unless there is anything else, I will sit around at the moment and one has 14 and one has 13 down. paragraphs.

10973. CHAIRMAN: Very well. 10983. CHAIRMAN: Mine has 14. 13 is Compensation. 10974. LORD BROOKE OF ALVETHORPE: One question, brieﬂy. Your response has been predicated 10984. MR DINGEMANS: Yes. At the moment, on the basis that the revised scheme that you have my Lord, if you were against me then what we would shown to us will proceed. What is the fallback simply ask for is compensation to be left as an position if it did not? undertaking because that is grafted on a statutory scheme, the 1965 Act, whereas, for example, if you 10975. MR MOULD: The fallback position on the look at your deed clause 5, if we can show that they evidence is that we would construct the original had not used reasonable endeavours to maintain six scheme. That is, as you know, we say highly unlikely loading bays, that is a breach of contract and then we to happen. The point is that the detailed protective can sue them in the courts and say: “Look, you did arrangements that are set out — not use your reasonable endeavours”, and they would no doubt say “Well, although we only had 10976. LORD BROOKE OF ALVETHORPE:— four for most of the time that was our reasonable would simply be extended? There would not be any endeavours because of X, Y and Z that were additionality? unexpected situations”.

10977. MR MOULD: No. It is more than that. I 10985. So there under the deed a right to sue for would like just to emphasise the context. Those breach of contract and to claim damages. arrangements were devised precisely for the purpose If one goes back to clause 13, the clause 13 provision of providing protection to the impact of the original is for those losses that will accrue that are, at the scheme, so they were certainly intended to be a moment, claimed under the 1965 Act. So this is to be Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association grafted on the 1965 Compulsory Purchase Act. When nominated undertaker to include in the you assess compensation as a result of injurious compensation an amount representing any affection, which is the 1965 Act, then the undertaker consequential loss, whether or not reflected in the will actually increase the damages by just not value of the land (1) which was caused by the restricting it to the value of land. So clause 13, in some construction of the works under statutory authority respects, is outside the deed. It is a separate provision. and (2) for which the nominated undertaker would What we are really asking your Lordships to do, in have been liable to pay damages if the construction short, is this: ditch their clause 13, turn to paragraph had not been authorised by statute.” 28 of our Petition and insert those words. In fact, it would be to the trader and, instead of the Promoter, it 10994. CHAIRMAN: That is the nuisance point, is would be the nominated undertaker. it not? 10986. CHAIRMAN: I thought 234 had already been agreed. 10995. MR DINGEMANS: Yes. This is all dependent on me coming within the 1965 Act. To 10987. MR DINGEMANS: Undertaking 234 was come within the 1965 Act I have to show, as I think I agreed—no. Our whole point has been that 234 is not indicated to you this morning, that there was a adequate to cover our situation. That is what our nuisance—i.e. an interference with a legal right— Petition was. If one looks at paragraph 28, it was that which I would have been able to sue them for but we needed more than 234. If your Lordships were which I could not because there had been statutory against us in saying that we needed more then we are authority. So it is a very narrow right. It is, eVectively: stuck with 234. if I show that there is a common law nuisance and the defence to it is statutory authority, then I can come 10988. CHAIRMAN: Let us try and get this within this. The eVect of this extension is this: what it absolutely clear. We are abandoning a new clause for means is we are not restricted to the value only of our the Bill. leases, which, as I have explained this morning, in real terms is nothing, and we can claim economic losses. That is an important extension but the 10989. MR DINGEMANS: Your Lordships are not limitation is still there; we need to show that it would going to order one. have been a nuisance. 10990. CHAIRMAN: I do not think that it is likely to be a very profitable line. We have already got 234, 10996. Why does that matter? Because, as Lord which is somewhere in here. HoVmann pointed out in Wildtree Hotels, when you have construction works of this type going on, dust 10991. MR DINGEMANS: Yes. that is generated, disruption that is generated is not actionable at common law—unless, as I think my 10992. CHAIRMAN: And it’s not good enough lord, Lord Brooke, had indicated there was some sort because — Shall we look at its text? of catastrophic failure, a failure to use reasonable 29 care and skill, then you are into the arguments that 10993. MR DINGEMANS: Yes, my Lord. If you go there is a failure at common law. There are a number to page 149 of our bundle. It is the third box down. of problems with this clause, at the moment. First of “The Promoter’s proposal to deal with this is as all, it is dependent on showing a nuisance. That is not follows:” Do your Lordships have that bit of text? It sensible in circumstances where—to pick my the is remarkably small text. “The Promoter’s proposal point my Lady, Baroness Fookes, made this to deal with this is as follows: it applies to the market morning—you are then immediately into what is a traders who are tenants of the City Corporation at nuisance at law and what is not. Great work for me, Smithfield Market”—which is us. So that is great. as a lawyer, but hopeless for the market tenants. “Where an event occurs during the construction of Crossrail which triggers a right for the market traders 10997. Secondly, you are grafting on to an existing to claim compensation under section 10 of the scheme on which the Law Commission did say—and Compulsory Purchase Act 1965 (as modified by I will take you back to their recommendations—“Get clause 50 of the Crossrail Bill) or section 6 of the rid of the 1965 Act; it’s hopeless; it’s in old-fashioned Railway Clauses Consolidation 1845 (as language”. My real concern on behalf of the tenants incorporated, with modifications, by paragraph 3 of is this: the 1965 Act is bad enough but it has been to Schedule 10 to the Bill) against the nominated the House of Lords enough times that people know undertaker, the Secretary of State will require the what it means. However, then you put on this 29 provision, and you are into a whole series of diVerent 234 (LONDLB-24—04-001) arguments about meaning. We would respectfully Crossrail Bill—Register of Undertakings and Assurances No. Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association ask your Lordships not to condemn us to the lawyers’ 11008. CHAIRMAN: I am having problems with feast that that will bring about. this. I have got what I thought was the Petition we were considering. 10998. CHAIRMAN: The first objection is a cross- reference to section 10. 11009. MR DINGEMANS: I think your Lordships have a diVerent Petition. My Lords, for reasons I am 10999. MR DINGEMANS: Yes, because we need to not entirely sure about, you have got a clause which show nuisance. The second objection: you are stuck was, I think, drafted specifically for the Act itself. with archaic language and you are modifying archaic Can I give you the wording that I have— language with language that I am sure your Lordships are all capable of reading and knowing 11010. BARONESS FOOKES: Can you read out exactly what it means but it has taken me a what you want? considerable period of time, and one suspects that the Lands Tribunal might have diYculties as well. The 11011. MR DINGEMANS: Yes, if that is all right. third objection— 11012. LORD JAMES OF BLACKHEATH: At the 11000. CHAIRMAN: I think the Lands Tribunal is moment, the screens, like our minds, have gone used to it. blank!

11001. MR DINGEMANS: Not to this bolt-on. 11013. MR DINGEMANS: That is because I was That is the point. My Lord Chairman, I entirely looking at your Petition. Can I read it out and then accept the first point. I said if we were simply on the one can see. This would actually work within a deed 1965 Act we could argue against it, but we won that more appropriately. “The nominated undertaker argument in the House of Commons, for what it is shall pay to any tenant in the Smithfield Meat Market worth, but, most importantly, for today’s purposes full compensation for all loss and damage including my learned friend’s side accepted that; they accepted but not limited to loss of meat or marketable that as it was insuYcient. What they have done is commodities and loss of business income which he then modified an inadequate statute in a way that is sustains by reason of the construction of the unprecedented. No one will be able to tell you exactly scheduled and connected works.” what that wording means because there are no precedents to help you work it out. 11014. CHAIRMAN: It sounds to me like an indemnity. 11002. CHAIRMAN: Have you got a text for an undertaking which does not fall into all these 11015. MR DINGEMANS: It is, eVectively, the diYculties? equivalent clause. Your Lordship is right; it is eVectively adapted from the Midland Mainline 11003. MR DINGEMANS: Yes, my Lord. If one provision, but with specific points. What it means is goes to paragraph 28 of the Petition, and if you look if you have suVered loss because of the works you will at page 16 of the document in the middle of be compensated for it. paragraph 28 there should be a clause. 11016. CHAIRMAN: You are going to have an 11004. CHAIRMAN: This is the statutory clause. awful lot of friends amongst the other Petitioners if you succeed in getting that indemnity. 11005. MR DINGEMANS: Yes. The great thing about it is that it can be modified in the way I suggest. 11017. MR DINGEMANS: If the other Petitioners were in our situation. My learned friend is very skilful 11006. CHAIRMAN: This is what I am asking. with his “floodgates”—“dreadful, everyone else will What is the modification? want it; you will have to change all the statutory schemes; they are not unique at all, like a sandwich 11007. MR DINGEMANS: I am just about to shop”. Can I deal with each of those points head on dictate it, my Lords. It is only two changes. If one and confront them? looks at it, instead of “The Promoter”, because of the way it would now be put into the deed it would be 11018. CHAIRMAN: Yes. “The nominated undertaker”, so you just delete “Promoter” and put in “nominated undertaker”, and 11019. MR DINGEMANS: First of all, in the then: “shall pay to any tenant or trader”, you delete House of Commons exactly that point was made: the words “or trader” because the deed is “defined “Everyone else will want exactly the same thing. We tenant”. cannot give them even this. We cannot even extend or Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association modify undertaking 234”. Well, did that work in the which does not give rise to an obvious anomaly or House of Commons? No. Was it right not to work in unfairness. We are sympathetic to the view expressed the House of Commons? Of course it was right that by” (the recommendation committee) “that the scale it failed because we are in a completely diVerent of many public works makes it inappropriate to situation from everyone else. Everyone else has been apply to them the same criteria as to private through this process once; no one else got a similar operations.” recommendation. So I entirely accept, my Lord, the Lord Chairman’s point: “Is this the beginning of the 11025. That is right, but the recommendation floodgates?” Answer: no, because everyone has been committee did also say extend the right for the 1965 through the process before and it is only us that have Act claimants. “However, if that criterion is withstood the proper analysis of our claim. removed, the nature of the right changes. It is no longer simply compensation for loss of an existing 11020. My learned friend’s second point is this: “Oh right” (namely, the common law right) “but the well, you are going to destroy the whole statutory creation of a more extensive right.” That is what the scheme for England and Wales”. Not a bit of it. Let 1973 Act has done, but within defined limits. us look at the Law Commission’s recommendations. This is the overarching point, and the complete answer to my learned friend’s proposition is this: the 11026. Can I ask your Lordships to note this: when Law Commission never said: “And this policy shall the House of Commons made their recommendation be applied to all Hybrid Bills”. What would be the they said “within defined limits”. They said the point of the Hybrid Bill procedure if we could not Smithfield Market operators ought to have a come before you and show on evidence, if you accept recommendation and if you look at my note I have it, that we are in a completely diVerent situation; that set it out at paragraph 12, where they invite the our business is much closer, if you want, to the Promoters to draw up an alternative provision which facilities owner and the railway operator than the would provide the tenants with the right claim for sandwich shop owner next to the road being dug up compensation in circumstances where a specific level outside? That is the important point. of loss is experienced. I am sorry, my Lords, it is page 4, paragraph 12 of the note.

11021.30 Can I then ask you just to look at the Law Commission recommendations, at page 137, 11027. If one goes back to paragraphs 11.19 and paragraph 11.19, just to emphasise a couple of 11.20, that picks up exactly the point about the 1973 points. Can I read this through with your Lordships Act, which is that the 1973 Act is designed in relation and emphasise a number of points? “Three clear to use of public works “However, the detailed rules points emerged from our review: (1) Compensation have been designed to produce a workable scheme for injury to land caused by the use of public works with deﬁned limits.” What the Law Commission did should continue to be governed by Part 1 of the 1973 not do was say: “By the way, we think the 1965 Act Act.” We are not into the use, we are into the strikes the fair balance.” What they did do, though, construction, so we can happily bin that one. was say this: “The decision whether to make a similar extension to the rights of those aVected by the 11022. “(2) Section 10, governing the compensation construction period”—i.e. not use but the for injury caused by the execution of public works, construction—“must be one of policy, taking needs to be recast in modern form.” That is part of account of the additional costs which it would entail my complaint about— for public authorities.” We respectfully agree. We are not asking you today to change the national compensation code. We are not even asking you to 11023. CHAIRMAN: That is the archaic language begin along that road. What we are asking you to do point. is exercise your constitutional functions as members of a Hybrid Bill Committee, and to consider that. 11024. MR DINGEMANS: And the undertaking 234 being grafted on language which has been condemned. “(3) Since neither right is dependent on 11028. “In order to restrict the multiplicity of claims, compulsory acquisition” (this is the ‘no taking’ point) it might be appropriate to consider practical “it would be logical for the revised section 10 to be limitations . . . a threshold related to the amount of enacted by way of insertion into the 1973 Act.” (That the claim . . .” simply so you do not deal with a £50 is neither here nor there.) “Our recommendation is claim, which is not going to cause anyone any designed to preserve the balance of the existing law problems, or limits by reference to timescale of the

30 works or the distance of the claimant’s property from Compulsory Purchase Code: (1) Compensation Final Report, the site of the works. “It will also be necessary to Conclusion, Para 11.19 (LONDLB-23—04-021) establish rules for the assessment of the claims. The Law Commission (LAW COM No 286) Towards a Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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Detailed work of this kind must await a policy operator. First of all, they are in a uniquely sensitive decision on the issues or principle.” business. There is no other business like that in London. I could have said: “Well, how many other 11029. If one then looks at what the Law people are selling meat on this scale in London?” The Commission recommended, they said, perfectly short answer is there is no one, because it has—and properly, that changing the national compensation you have seen a bit of the history of the site—been code in that way is a matter for the legislature, as a developed into a leading market but uniquely whole. We respectfully agree. However, if you are sensitive in the middle of the City of London. talking about a detailed, Hybrid Bill where your Lordships are asked to listen to evidence and to make 11032. Then you have these compensation speciﬁc recommendations in the light of the evidence, provisions. They have no real value in their land, they is the Law Commission’s recommendation support do not own much of their land simply because of the for the proposition that, eVectively, we are the historic accident of it belonging to the city and no- beginnings of the ﬂoodgates? Not at all, because we one owning it. Take it, for example, to the parking have to show to your Lordships why we are especially bay rights. As a matter of law, I made my short aVected. You do not even need to worry about a submission before we adjourned for lunch about recommendation about how far away we are because why, in fact, the parking bays were not going to help you know that we are going to lose the basement us and my learned friend said, “Oh, well lawyers worksite; you know that we are going to have the disagree”, I respectfully agree. My learned friend’s works next-door. entirely reasonable submission is you might be within the compensation provision. Our respectful 11030. On the evidence you know this: that Mr submission is probably not because we have no Berryman perfectly properly cannot say that he will legally enforceable right to the parking bay. That is not be back to the original scheme. You are going to exactly the sort of provision which is met by the approve the Bill in the format which permits them to indemnity, as my Lord right characterises it, in the take part of Lindsey Street. In those circumstances, circumstances. what he is eVectively saying is: “Don’t worry about making special arrangements for them because it 11033. CHAIRMAN: Would it not be met by probably will not happen”. If it probably will not Undertaking 234 as well? happen, do not worry about the compensation provision; it is not going to cost anyone any money. 11034. MR DINGEMANS: No, that is exactly the However, at the moment, you are being asked to point because Undertaking 234 would be drafted on exercise your duties of approving this Bill, and no one the 1965 Act and I would not be able to show the argues that it is anything other than desirable, but nuisance. If, as Mr Abrahams thought he had, he had with the powers to take the basement as a worksite a legally enforceable right to the parking bay area, for the escalator. All that my learned friend submits then we might have been in to a compulsory taking, is that that is unlikely to happen. He still only oVers what would have been a common law nuisance of his an undertaking to use best endeavours not to, and right to a parking area, therefore you are in the you have explored in the evidence some of the trigger event, but because he has no more right than problems that might lead to the situation recurring. your Lordship or me to that particular parking bay How can it then be fair to say: “It probably will not area and loading bay area, then our submission is happen but if it does it is entirely your risk, members that blocking it for construction traYc or having of the market traders”—members who will not be someone unload in it or taking it over is not going to able to go out and get insurance in the market (or the give him the common law right to nuisance. That is vast majority will not trouble and the one who says the diYculty. he did get it is going to bring home any claims)— when you have a nominated undertaker provided 11035. CHAIRMAN: Is there no halfway house with public funds to discharge their public functions between 234 as it stands at the moment and who are going to have a potentially catastrophic something which should be more acceptable to you, eVect on the individual market tenants? How can that which is short of an indemnity? be fair, to put the balance on the market tenants. We respectfully submit it is not. 11036. MR DINGEMANS: My Lord, we have looked around, as your Lordships I suspect would 11031. That is my learned friend’s best point. He said, have hoped we would, for precedence. The Midland at the end: “There is nothing between us” and he used Main Line one was far more extensive. the illustration of the sandwich shop owner, but there is the world between the market tenants that you 11037. CHAIRMAN: No, you may have to invent it heard from this morning and the sandwich shop yourself. Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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11038. MR MOULD: Yes. There are all those trigger claims, the 1965 Act does not. Those are, as aspects of it and, indeed, the House of Commons set you heard from the market tenants themselves this a limit before you get into it because one inferred morning, their real concerns. We do respectfully from the discussions we had, because the reasoning submit that those are concerns which are not was just one paragraph, there were concerns that hypothetical, are not overstated and they are based, eVectively if someone lost one carcass they are not as you have seen, on expert evidence. They have been going to be troubling the nominated undertaker with met, and I do entirely accept this, my learned friend that, quite apart from not wanting to do that in any has gone a long way to attempt to meet and deal with event, but it is obviously right to protect it. We problems, but now you are dealing with the residual respectfully submit, if you are not, perfectly properly, issue, which is this: in the unlikely event that the dust not getting into rewriting the Bill or recommending suppression measures fail, even though they have that Bill be rewritten, if your Lordships think that exercised reasonable care and skill, who should pay? there are still problems with the 1965 Act and that Should they bear the risk of that or should the 234 suVers the problems that we have identified, individual market tenants whose meat is condemned, recommending at least a form of scheme that whose business is destroyed, should they bear the risk reasonable lawyers, and although we take opposing of that? positions, I certainly hope we both are considered reasonable lawyers, would be able to work out between themselves. 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 11039. That is where we are. We do respectfully make catastrophic, I cannot see that. That is why I focused the following submissions. The National on proper performance. If they are carrying out their Compensation Code was never designed to be the suppression measures, I can see that there might be beginning and end of compensation, otherwise why an escape of dust, et cetera, but if they are carrying have a Hybrid Bill procedure. Secondly, what everyone is striving for is a fair balance. The National out the monitoring and carrying out proper Compensation Code sometimes will strike that fair performance of those measures, I find it hard to balance, but it is common ground, it does not with us. believe that there is going to be a catastrophic failure. Our submission is simply this, undertaking 234 simply does not give us the protection that my 11043. MR DINGEMANS: Can I try and meet your learned friend hopes or seems to hope that it should Lordship’s proper point to me head-on in this way. do. In those circumstances, when one is looking for Your Lordships will all be well aware of the the fair balance, that is, we submit, your Buncefield oil disaster where, well reported and now constitutional duty to decide it, you are here having the subject of extensive litigation, those who are heard the evidence, you know more about the alleged to have been responsible for what was on any Crossrail Bill than anyone, I suspect, would ever view a catastrophic failure say that it happened want to know and have been exposed to it and can without any fault on their part and those who then make the appropriate judgment whether or not suVered the losses say, “You say that, but a, b, c”. It these are market tenants who simply are not going to is currently set down for trial to commence in get insurance for the losses that they will suVer when October. I am not involved in that and that is a their dusty meat is condemned or will suVer when the matter of record, so those matters can be determined. Lindsey Street works does not operate and the That is the point, my Lord. If there is a catastrophic market business falls down. Is it right that they failure and real losses accrue, then insurance should take the full cost of that or is that one of those companies, being what they are, and other aspects unique situations where one can fairly say no. In fact, being what they are, they will inevitably test whether this is where the fair balance requires proper they should pay against whether there has been a compensation being made to them and delivered in a failure of proper performance. You are eVectively way that my Lady, Baroness Fookes identified, that putting the market traders to proof in that situation will be capable of short-circuiting all the claims or of that which your Lordships assume. If we are management and issues that go with it. If we are going to prove it anyway, why not save us the time, dependent on Section 10 of the 1965 Act— the trouble and the eVort of attempting to prove that in defended legal proceedings. The cost of the 11040. CHAIRMAN: The 1973 Act, is it? Buncefield litigation has been the subject already of comment in circumstances where the individual 11041. MR DINGEMANS: No, 1965 Act. The 1973 market traders can aVord to appear before when they is use and 1965 is construction. It is exactly that combine together through their association and ask point. When one is searching for the fair balance, the for representation, such as today, but for individual 1973 Act allowed noise and dust and pollution to losses it simply will not happen. 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11044. LORD BROOKE OF ALVERTHORPE: eVectively take over parts of Lindsey Street. They say Where I find the conflict, and you did not mention it they hope they will not need it and so do we, but that in your final summing up, is accepting all that, yet I is why we are in, we respectfully submit, a completely hear this morning that they are prepared to support diVerent situation. That is why the market traders applications for the developments with the private and Mr Lawrence, who gave evidence about it, have sector which presumably could give rise to all these been able to support it. Even there, and of course it is problems. easier sometimes to negotiate with private companies than it is with public bodies, they are still seeking 11045. MR DINGEMANS: My Lord, I am glad you proper provisions for compensation. Of course, they raise that expressly if it troubles your Lordships. First are not finalised yet because the scheme is not going of all, if you look at where it is, it is right down on the ahead yet. Whereas, you are eVectively the other side. It does not aVect the bits that are the negotiating Committee for the private company. We sensitive areas where the meat comes in. My learned are asking you for those provisions and we submit friend says it all comes in hermetically sealed, well it that they ought properly to be granted to us. does and is intended to, but the evidence is doors open and the trouble is with dust, it comes through. 11050. BARONESS FOOKES: Is not the issue of The other aspect of the evidence, which is important, this other building, that it goes up down or whatever, is they have not yet got planning permission, it has is that not, as far as we are concerned, a red herring? gone to an inquiry, and there are still discussions ongoing about what compensation provisions may 11051. MR DINGEMANS: We would respectfully be appropriate. They are unlikely to be in a situation submit, my Lady, first of all it is a scheme which, as I of supporting that if they were going to walk into understand it, and I had only been told about it, I exactly the same problems. think it was last month, is not yet at planning permission stage. I was only told about it because my 11046. LORD BROOKE OF ALVERTHORPE: learned friend very fairly raised it with us beforehand But it is not just dust there, is it, this compensation to warn us about that issue. It is a matter where there extends beyond dust. It is into extra traYc interfering are still ongoing negotiations. Would my learned with business, fewer people coming to shops, et friend be content to oVer this undertaking to the cetera, that would be precisely the same with this Committee, that if we get an undertaking from the other development. other building site developers they are going to match similar protection? Of course they are not, so my 11047. MR DINGEMANS: My Lord, subject to Lady is obviously right. It is a red herring because we this, what you are not doing is eVectively destroying simply do not know yet what compensation an old building for perfectly proper reasons, provisions will be agreed. All one can say fairly is that dropping that building and creating underneath that Mr Lawrence was reasonably confident, otherwise he all the escalator, et cetera, site, it is a completely would not be supporting the Promoter and no doubt diVerent scale of development. that is how the private sector will operate, try and ensure that they have on side those people who might 11048. MR MOULD: I am sorry, I do not want the be aVected. The diVerence with a public body is this, Committee to have any doubt as to the facts. My they are taking from Parliament the statutory powers understanding, and my learned friend will confirm if I to do these matters and that is why we do ask your am right or wrong on this, is that scheme does involve Lordships, exercising your constitutional function, significant works of demolition. I think I am right in to draw the fair balance that we cannot negotiate. saying that the general market building is to be, if not totally, certainly substantially structurally 11052. LORD BROOKE OF ALVERTHORPE: demolished. We would have to balance against that the potential costs that might arise for the public purse as well. 11049. MR DINGEMANS: You have seen them all, they all have their own individual view and they 11053. MR DINGEMANS: My Lord, that is support that at the moment because their perception, absolutely right, but it is entirely wrong to say that whether it is right or wrong, is completely diVerent in the beginning and ending of it is the National terms of scale and intrusiveness. For a start, you are Compensation Code and the fact that in that it is left not losing half the parking under statutory powers. as a matter of policy for Government because, of At the moment the Bill you are being asked to course, there are any number of public projects. approve provided for the stopping up of Lindsay When you are talking about specific statutory Street, well that has been met by an undertaking to approval by the Hybrid Bill, you have had the maintain it for 38 and 44 tonnes, but you are still Channel Tunnel in the situation, the Crossrail Bill, going to give them the powers at the moment to then it has always been for you on the Committee to Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithfield Market Tenants Association strike that fair balance, to consider really whether proceedings, it had better be fairly specific. Whose these are people who are overplaying it or whether we deed was this that we have? have identified real concerns and whether we ought to be properly looked after. 11066. MR DINGEMANS: It eVectively came from those instructing my learned friend because, as my 11054. Perhaps I can just finish by saying this: if we learned friend identified in his response to my note, had been overplaying our hand and not identifying we had made specific complaints about the absence of real concerns, the House of Commons would not contractual provisions and they decided at least to go have identified that we required a bit more help; my that far. learned friend would not have oVered undertaking No 234 and we would not be in the happy situation, and I am very grateful to him, that we have the deed. 11067. CHAIRMAN: Have you got it? But we do respectfully identify for the detailed reasons set out in the note that there is something 11068. MR DINGEMANS: It depends. I have it missing, and the most important part, the dust and with 13 clauses, but I think your Lordship has it with that aspect, the loss of the parking site, is what we will 14. I have a clause 14 as well. suVer from.

11055. BARONESS FOOKES: Would you regard 11069. CHAIRMAN: It seems to me that one might some kind of limitation on the amount, either before be able to work on the basis, with all the beginning a compensation charge is triggered or some bits, of clause 7, which is dust and, with monitoring maximum, as a compromise? and dust management plan, the whole—probably— of clause 11, and that may deal with your parking — 11056. MR DINGEMANS: Of course it would, my Lord — 11070. MR DINGEMANS: Yes.

11057. BARONESS FOOKES: A cap, yes. 11071. CHAIRMAN: And 13. Now, is there 11058. MR DINGEMANS: — and those are all anything wrong with 13? matters that should be properly left for the legislature to determine because you know more about funding. 11072. MR DINGEMANS: This, my Lord. If your We can only see the snapshot that is Farringdon Lordships are to restrict me to 13 we would rather station, whereas you can have some regard for the that was left as an undertaking because it is referring overall level of the schemes, and I have seen some of to a statutory scheme. For example, if your Lordship the opening statements that have been made. looks at an absolute promise that they have made —

11059. CHAIRMAN: Mr Dingemans, we are going round in circles. 11073. CHAIRMAN: It is my 13, Compensation.

11060. MR DINGEMANS: My Lord, yes. 11074. MR DINGEMANS: Yes, I have it. For example, if you look at clause 4.1 — 11061. CHAIRMAN: The situation, as it seems to me, is this. You do not like undertaking 234, for 11075. CHAIRMAN: I have not mentioned 4.1. reasons you have given.

11062. MR DINGEMANS: No. 11076. MR DINGEMANS: No, but your Lordship was asking me why I was concerned about clause 13, 11063. CHAIRMAN: We do not like a suggestion and if one looks at 4.1, which is an uncontroversial that the Bill should be amended by the introduction clause to maintain a safe access for vehicles and of a new clause, and I am afraid I do not think we very pedestrians throughout the construction of the much like the suggestion of a limitless indemnity. authorised works, suppose they do not do that and a speciﬁc market trader can show that that caused him 11064. MR DINGEMANS: My Lord, yes. loss, whether he could or not, then he can sue for breach of contract — 11065. CHAIRMAN: Therefore I think we are going to have to ﬁnd something else because, if we are 11077. CHAIRMAN: Mr Dingemans, I am trying going to recommend anything at this stage of the to cut this down to some fairly small area — Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

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11078. MR DINGEMANS: Sorry, my Lord. 11092. MR DINGEMANS: Yes, eVectively. At the 31 moment we have a claim for breach of contract—that 11079. CHAIRMAN: — and the main point you causes no problems. The real issue between us have been talking about all day is dust. Let’s start concerns the limitations of the 1965 Act, and all we with clause 7. are really asking for is a situation where we are not restricted to proving a common law nuisance because 11080. MR DINGEMANS: My Lord, yes. a common law nuisance will not extend principally to dust and losses caused by taking over parking bays 11081. CHAIRMAN: Clause 7 seems to me to be a on limited periods. fairly thorough exploration of the problems about dust, and this has all come from the Promoters so 11093. LORD YOUNG OF NORWOOD GREEN: presumably it is not something from which they now Mr Dingemans, when the undertaking is unqualified wish to resile. They are not going to do concrete you are happy, because you referred us to 4.1? batching; we have not been arguing about noise and vibration; vermin control—yes, I appreciate that has 11094. MR DINGEMANS: Yes. been touched upon but it is not the centre of your issue, and we then get to 13. 11095. LORD YOUNG OF NORWOOD GREEN: The Lord Chairman referred you to the section on 11082. MR DINGEMANS: My Lord, yes. dust and said that if that was strengthened that could be a route forward, bearing in mind it is one of the 11083. CHAIRMAN: I see no reference to statutory key areas of your concern? anythings.32 11096. MR DINGEMANS: Your Lordship is 11084. MR DINGEMANS: Can you look at clause absolutely right, the other way of resolving the 13.1? It says:33 “In the assessment of compensation concerns we have is to take clause 13 out and leave it payable to the Trader as a result of injurious with the undertakings because it has nothing here nor aVection”, bear in mind those words, and then go to there, and then — clause 1.1 — 11097. LORD YOUNG OF NORWOOD GREEN: 11085. CHAIRMAN: But it does not say that. Well, let me finish, because I do not know whether what I am saying will be achievable and I am not sure 11086. MR DINGEMANS: It says “‘injurious of the Promoter’s attitude. So strengthening 7.1 aVection claim’ means a claim made under section 10 would help, and I also looked at 5.1—if I may, Lord of the Compulsory Purchase Act . . . ”. Chairman? 11087. CHAIRMAN: Because it is defined in 1.1? 11098. CHAIRMAN: Yes, go ahead. 11088. MR DINGEMANS: Yes. Otherwise I would be with your Lordship, but that is why clause 13 is 11099. LORD YOUNG OF NORWOOD specifically dealing with the statutory plus the GREEN: — because that seemed to me to keep undertaking 234. 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 11089. BARONESS FOOKES: So what about a not going to achieve the new proposals for the redefinition of “injurious aVection”? escalator, et cetera, why could that not be strengthened for an undertaking that they will 11090. MR DINGEMANS: Well, there are a maintain six loading bays? number of diVerent ways —

11091. CHAIRMAN: Then we get back into the 11100. BARONESS FOOKES: But I thought Mr indemnity case. Mould had said that this morning in response to my line of questioning. 31 Undertaker and individual Smithfield Market Traders— Farringdon Station Eastern Ticket Hall—Dust (LONDLB-23— 11101. MR MOULD: I did. 04-039Committee and-040) Ref: P73, Draft Deed between the Nominated 32 Undertaker and individual Smithfield Market Traders— 11102. LORD YOUNG OF NORWOOD GREEN: Compensation 042) I am sorry. Well, if that is the case then that one has 33 Committee Ref: P73, Draft Deed between the Nominated Undertaker and individual Smithfield Market Traders— been removed, then. What I am saying to you is, if Definitions (LONDLB-23—04-037) they did not meet that undertaking, which would be Committee Ref: P73, Draft Deed between the Nominated Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [O] PPSysB Job: 405373 Unit: PAG1

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2 May 2008 The Petition of Smithﬁeld Market Tenants Association a revised wording now, then you would have a right 11113. MR DINGEMANS: No. My Lord, it may to sue? well be that, in the light of your Lordship’s indications to me and to my learned friend, in terms 11103. MR MOULD: Yes. of the deed we are not that far apart —

11104. LORD YOUNG OF NORWOOD GREEN: 11114. CHAIRMAN: Except for section 10. I am trying to eliminate. So we are really down to the Chairman’s point of whether or not we could 11115. MR DINGEMANS: Yes, it is that point, but, strengthen 7.1 to the point where you would have in the light of what your Lordship has suggested to confidence in the ability to use that. both of us, it may well be that a practical way forward—and I have in mind the fact that your 11105. MR DINGEMANS:EVectively, yes. 7.1 is Lordships have already granted us the indulgence of introducing it but it is the qualification—7.2 I think I sitting until 3.30 on a Friday afternoon—is to showed you — adjourn this Petition with the parties directed to discuss the matters and, if there is anything further, 11106. LORD YOUNG OF NORWOOD GREEN: then time limited submissions of 15 minutes each. I should have said 7. 11116. CHAIRMAN: Well, I have no objection to 11107. MR DINGEMANS: Indeed, my Lord, that! because what then happens is, if they have not mitigated those problems and there is an escape of 11117. Mr Mould, I do not think we are going to get dust, the risk is there and we can sue them for it if we there today. have suVered loss, and that is really what we are principally after. 11118. MR MOULD: My Lord, I do not think we 11108. CHAIRMAN: Mr Dingemans, I do not are. I am a bit nervous about the last suggestion think we are going to get to a conclusion on this this because where we are expecting to be this time next afternoon. If this is going to be either an undertaking week is not in this room — or perhaps preferably a deed it has to be one that is agreed between you and the Promoters, and at the 11119. CHAIRMAN: We will find time for it. present moment there is not the smallest sign of agreement between you and the Promoters on a lot of 11120. MR MOULD: Can I throw one more pebble these points, and it also has to be something that the into the pond, I hope helpfully, just to remind you of Committee is prepared to put forward as a something that I quoted but did not show you? recommendation. 11121. If you look at page 6 of my bundle this is the 11109. MR DINGEMANS: Indeed, yes. letter we sent to explain our proposals for special compensation proposals, and if you look down at the 11110. CHAIRMAN: The Committee is not there to bottom of the page I just draw your34 Lordship’s put forward a recommendation of an unlimited attention again to the penultimate paragraph, indemnity—at least I do not think so. because this may be precisely the sort of clear-cut commitment that we need to draw out. I read this 11111. BARONESS FOOKES: Something less out to you earlier but did not show you the page. than, might be appropriate. “One of the points about which you expressed concern when addressing the Select Committee on 11112. CHAIRMAN: And certainly we are not the Crossrail Bill related to compensation for losses trying to remove compensation altogether, and it arising from the destruction of carcasses where those may be that we do not need a reference to any of the carcasses were condemned by environmental health statutory provisions like section 10 at all, or the oYcers in consequence of dust emanating from an concept of injurious aVection. We may need to adjacent Crossrail working site. We do not expect provide for something which allows for that to happen but in the event that it did occur we compensation for dust infiltrated into one of the meat can confirm that since in these circumstances physical stores and, for all I know, a provision about parking damage will have occurred to the carcass in question in Lindsey Street, but we cannot invent this ourselves by the escape of dust, the Promoter agrees that it because it will have to be a provision which is agreed should be included in the matters ranking for between you and the Promoters, and we must have compensation under the proposals described above.” made some progress today but we have not got 34 there yet. Annex A (LONDLB-24—04-006) Crossrail Ref: P73 Correspondence from CLRL to SMTA, Processed: 14-08-2008 19:55:23 Page Layout: LOENEW [E] PPSysB Job: 405373 Unit: PAG1

910 committee on the crossrail bill: evidence

2 May 2008 The Petition of Smithﬁeld Market Tenants Association

11122. Part of the concern in this case is precisely 11133. CHAIRMAN: -— and they may be wider that event. than what the Promoters would like. I do not think they are, in terms, now that I have seen that 11123. CHAIRMAN: That is exactly right. paragraph in the letter. I think it is capable of being dealt with by means of an undertaking. 11124. MR MOULD: We have said that to them. If the Petitioner would like that to be enshrined in a 11134. MR DINGEMANS: Or, perhaps, in the deed specific commitment, either drawn out and added to simply because— the assurances and undertakings register, or included as a free-standing clause in the draft undertaking, we 11135. CHAIRMAN: Or in the deed. will do it. If that is the sort of limited but valuable extension of the code, expressed in clear terms, which 11136. LORD YOUNG OF NORWOOD GREEN: would cut the Gordian knot in this case, then that The undertaking is in the deed. may be the way forward. 11137. CHAIRMAN: We do not necessarily have to 11125. CHAIRMAN: What is more, there is going have all of the deed unless there are bits of the deed to be an opportunity for you to discuss it. which you do not like. If we adjourn the discussion on this Petition and allow you to have further 11126. MR MOULD: Quite. discussions with the Promoters about it, we will fix a comparatively short time for you to come back with 11127. MR DINGEMANS: My Lord, yes. We have what I pray is going to be an agreed draft. I am sure always read that letter and, indeed, understand from we can fit it in. my learned friend’s submissions that at the moment if the dust corrupting the carcass is caused simply by 11138. MR DINGEMANS: I am very grateful, my proper execution of building works, at the moment Lord. we cannot claim.

11128. MR MOULD: It does not say that and that is 11139. CHAIRMAN: Is that not the only possible not the position. That will be actual physical damage thing to do, Mr Mould? caused. We said in that letter—unqualiﬁed in that way—that that would be right. 11140. MR MOULD: My Lord, yes. Mr Walker is here and no doubt we can liaise. Before we close, can 11129. CHAIRMAN: I am going to have to leave I express my sincere thanks to the Committee—I you to quarrel about this behind the scenes, because know I speak for both my learned friend and we are going to get nowhere in this room. myself—for having indulged us as far as thirty-seven minutes past three on a Friday afternoon. 11130. MR DINGEMANS: I respectfully agree, my Lord. Perhaps by way of maintaining appropriate 11141. CHAIRMAN: That is all right. That is what ﬁrm but fair pressure on both sides to sort it out we are for. They are pretty complicated documents rather than trouble your Lordships again, if your here and I do not think the Committee is terribly Lordships were minded to accept the proposed good at discussing them, particularly on the course of action. transcript. So it is probably better for you to do it behind the scenes. 11131. CHAIRMAN: I think we have given you the parameters of what we are prepared to accept. They 11142. MR MOULD: I think we owed it to you to are narrower than what you would like— acknowledge your indulgence at this stage.

11132. MR DINGEMANS: My Lord, I entirely 11143. CHAIRMAN: In that case, we will stop now accept that. until Tuesday morning at ten. Thank you very much. Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [SO] PPSysB Job: 405382 Unit: PAG1

committee on the crossrail bill: evidence 911

DAY TWENTY-SEVEN TUESDAY 6 MAY 2008

Before: Colville of Culross, V (Chairman) Jones of Cheltenham, L Brooke of Alverthorpe, L Snape, L Fookes, B Young of Norwood Green, L James of Blackheath, L

Ordered at 10.05am: that Counsel and Parties be called in.

The following Petition against the Bill was read:

The Petition of Westminster City Council.

MrPatrickClarksonQC appeared on behalf of the Petitioner.

Messrs Sharpe Pritchard appeared as Agents.

11144. CHAIRMAN: Are you going to make a through last Monday, but I will keep it short, if that is statement, Ms Lieven? acceptable.

11145. MS LIEVEN: The first Petitioner this 11148. CHAIRMAN: That is fine, you go ahead and morning that we are dealing with is Westminster City do that. Council. Now, the position on Westminster is that we 1 have, in substance, agreed everything, except for one minor point that I am awaiting instructions on. What 11149. MS LIEVEN: Perhaps we can put up Exhibit is going on in the corridor, as your Lordships may 029 please. This is Paddington Station and, as those have noticed when you came in, is huge excitement in who were on the site visit last week will be conscious, drafting up the terms of this agreement because we are this is probably one of the most complex and diYcult very concerned that everything be written down today aspects of the entire Crossrail scheme, and it is so in a and signed oV so that there is no misunderstanding. number of diVerent respects. Here in the centre we of What I have agreed with Mr Clarkson, who is here on course have the existing Paddington Station, designed behalf of Westminster, is that I make a relatively short by Brunel. The Crossrail station is to be constructed opening to the Committee about the issues around underneath Eastbourne Terrace in the area which is Paddington Station, and that will cover in the shown green on this plan, so that is going to be the generality both Westminster, but also Paddington station and I will show your Lordships a more detailed Residents Action Concern on Transport, who are plan in a moment, but eVectively the main entrance coming on after Westminster, and also touch on the into the station is going to be in what is the existing concerns of Westbourne Park Villas Association, so I Network Rail train-operating company ticket hall will doa comprehensiveopening of thisbit ofthe route within the main building and then there will be and then I was going to ask the Committee if you escalators down to the Crossrail platforms. Also, as would be prepared, my Lord, to adjourn for perhaps you can see in the light blue, kind of turquoise colour, 45 minutes for us to finish the writing up of the there is going to be a cross-passage underground agreement with Westminster so that we can then make linking into the Bakerloo Line across here (indicating) a very short statement on what we have agreed and and there is going to be another passage underneath they can go. Eastbourne Terrace and Praed Street going into the Circle & District Line station there (indicating). For the Committee who are familiar with Paddington, this 11146. CHAIRMAN: So you are going to deal with is obvious, but, for those who are not, it is a rather all the things that we saw last Monday? spread-out existing station by which the Circle Line stationis onPraedStreet andon theotherside, theeast 11147. MS LIEVEN: Yes, my Lord. I will do so side of the existing station,is the Hammersmith & City briefly, but I am conscious that one or two members of Line here (indicating). That is, as it were, the brief the Committee were not on the site visit and also it 1 might be helpful to see, with the plans, what we went (WESTCC-56 04-029) Crossrail Ref: P76, Paddington Station—Crossrail proposals Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

912 committee on the crossrail bill: evidence

6 May 2008 The Petition of City of Westminister Council outline of where we are going to be. The issues which 11152. CHAIRMAN: Is that Brewers Court? arise at Paddington are as follows: 11153. MS LIEVEN: This is Brewers Court here (indicating)andthereisatthemomentalargebuilding 11150. First of all, as the Committee are aware, at the here, I think the number is 4-18 Bishop’s Bridge Road, moment the road which runs down, which you can see which has to be demolished under our proposals on the plan, Departures Road, runs down under a because the Crossrail tunnel coming into the station canopy at a lower level and the taxis use that to pick up intersects with its piles, its foundations, so it has got to and drop oV at the station. Now, in order to build our be knocked down. The proposal at the moment is that station, those taxis have to move because we cannot we will use the area of the demolished building as a dig all that up with the taxis there; it is simply service deck. The way that Paddington works is that impossible. Therefore, the very first stage of the works platform 1A comes all the way round here (indicating) that we propose is to build a new facility for taxis on underneath the bridge and down here (indicating) and what is always called for some reason the ‘east side’ of during the time when Departures Road is being dug the station, but it seems to me to be the north side, but up, that is where servicing presently takes place, and over here anyway (indicating). There is an existing what we are proposing is to move the servicing for the deck called the ‘Red Star deck’ which is roughly here station, that is, the catering facilities, the deliveries, all (indicating) and what we intend to do is to build a that kind of stuV, on to a constructed deck here (indicating) on the site of the demolished building. ramp down oV the bridge which, as some members of Now, the problem that arises from that is the impact the Committee know, was reconstructed a couple of on the residential property of Brewers Court which is years ago and closed for a long time. There is going to a number of flats. We are exceptionally close to, or I be a ramp down there so that the taxis can come down think we have, in substance, reached, agreement with oV the bridge and then have a completely isolated Westminster as to the construction of a canopy over circulation space around the Red Star deck and then the deck in order to mitigate the noise impact of using go back oV the way they came onto the bridge up the the deck for servicing lorries during the period when ramp. There are complicated issues to do with the the works are going on, so that is one aspect and the construction of that ramp and the interrelationship next aspect of issue which your Lordships need to be between the Hammersmith & City Line and the aware of. landowner’s development proposals, that is Hammerson’s, but I am not going to say anything more about that now because we are hopefully very 11154. Then moving round, because we are doing this close to agreement with Hammerson’s. That is, as it major piece of work in Eastbourne Terrace, there is were, the first stage that happens and then the taxis are going to be a prolonged period when Eastbourne moved out of Departures Road to this new facility. As Terrace is reduced to one lane in each direction. Your far as the Crossrail proposals are concerned, the taxis Lordships may be aware that at the moment there is a stay in the new facility, so that is not for the large number of buses that not just use, go up and construction phase, but that is the long-term down, Eastbourne Terrace, but which also stop there operation phase. There is a significant traYc and eVectively that would be unworkable while the advantage to that because it means that the taxis works are going on because there is just not space for them. Therefore, what we are proposing to do is to serving Paddington come on and oV the bridge and move the bus stops, and I do not think I need to show can go directly on to the strategic road network, which yourLordships thisin detail,but tomove thebus stops some members of the Committee will be familiar with. and the eastbound bus stops are going to move into There is the Harrow Road gyratory here (indicating) Westbourne Terrace which is the road parallel to and the Westway goes over the top, so it allows the Eastbourne Terrace, so there is a fairly major taxis to get in and out of Paddington without getting movement of bus facilities in this area being proposed. tied in to either Eastbourne Terrace or to the residential streets of the Hyde Park Estate, so that is one area of complexity and longstanding negotiation. 11155. The next thing I should touch on is that there We have reached agreement with BAA, who are very have been diVerent proposals during the course of the concerned about the taxis that the ramp and the Bill through Parliament as to the precise provision on the Red Star deck is suYcient. configuration, the form, of the final station in Eastbourne Terrace, and all of these configurations fall within the limits of deviation, but what we are now proposing is a somewhat shorter and narrower box 11151. The next issue I want to touch on is the than that which was proposed when the Bill started its residential block of Brewers Court. As the Committee life through Parliament, which overall is a good thing may remember, we stood at the top of Eastbourne because it leaves more space for traYc at the end, more Terrace. space for manoeuvring and more space for buses. Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

committee on the crossrail bill: evidence 913

6 May 2008 The Petition of City of Westminister Council

There is an issue about the height of Eastbourne 11161. LORD BROOKE OF ALVERTHORPE: Terrace when the works are completed. The Sorry, but what do Westminster want? Committee will be aware at the moment that Departures Road is at a lower level than Eastbourne 11162. MS LIEVEN: I believe, my Lord, that Terrace itself and this is an aspect of the scheme which Westminster think that very serious consideration hasbeenproblematic andwhichiscontinuing tobethe should be given to moving the boundary possibly to subject of design development, but what we can Westbourne Terrace. I do not think anybody has confidently say is that, because we have this shorter, come toan absolutelyfinal andfixed position,but they narrower box than was previously the case, there will can clearly see the benefits of that. be more room, whatever the final configuration of the above-ground part of the station, for buses and other 11163. BARONESS FOOKES: Why is it such a big traYc than there was in the original scheme. deal that it takes so long?

11156. I think that is probably all I need to say at this 11164. MS LIEVEN: Well, it is a big deal, I think, my stage. There may be more detailed issues that we need Lady, for two reasons. One is that there is a concern to go into when we get to the PRACT Petition, but I that, with the limited space on Eastbourne Terrace, it think that is all your Lordships need to know for the should not be a boundary road, but there is also, I generality. think, a concern that moving a boundary is not a straightforward thing for the CCZ. Cameras have to be moved, signs have to be moved, lines have to be 11157. I then move2 on to a related issue which has been moved, computers have to be changed, so it is quite a of concern to Westminster which is the boundary of major enterprise moving a boundary, and I think it the Congestion Charge Zone and perhaps we can put would be fair to say that it is not clear at this stage that up 007 please. Paddington Station appears in the there would actually be very significant benefits from middle in brown and you can see Eastbourne Terrace doing so. there (indicating). The yellowy-orange is the area within the CCZ, the Congestion Charge Zone, and 11165. CHAIRMAN: Does it need an amendment to you can see that Eastbourne Terrace is the boundary the Bill? street at the moment. Now, it has been suggested that, given the works that are going to go on at Paddington, 11166. MS LIEVEN: My Lord, it would need a new the boundary should be moved so that Eastbourne Order in the CCZ Orders promoted by TfL. If your Terrace is no longer the boundary. That was to some Lordships were going to deal with it under the powers degree supported by the House of Commons in the Bill, then yes, it would need it. Committee who asked us to go away and discuss the matter further with TfL. TfL are in the process of 11167. CHAIRMAN: I do not think we can, can we? considering what to do about this issue. They have carried out a study and further work is ongoing, but at 11168. MS LIEVEN: Well, whether you can in some this stage no final decision has been made one way or absolutely far-fetched legal way, I am not sure, my the other. Lord, but, in my submission, it would be wholly inappropriate for this Committee to start changing 11158. CHAIRMAN: And it will not be this week. the CCZ boundaries. You might make all sorts of suggestions! In my submission, the matter has gone as far as it can as far as this Bill is concerned, which is that 11159. MS LIEVEN: I am not sure whether your TfL have undertaken a study and there are discussions Lordship means that it will not be by your Lordships going on between all those concerned. or it will not be by TfL this week; I suspect both are true. It is the subject of ongoing discussion and we 3 11169. If I can move to another part of the Paddington know that Westminster have strong views on the area, which is the issues around Paddington New subject and PRACT are interested in it. It is not in the Yard, perhaps we can put up 027. Those members of control of the Promoter, but we are doing what we can the Committee who came on the site visit will to facilitate discussions between the appropriate remember that we went into Paddington New Yard stakeholders, if I can use the jargon, so that is the going through the existing bus garage, and it is a large position on that. area of land that lies on the north side of the railway line largely underneath the Westway. The existing bus 11160. Perhaps I can then move on to another part of garage, though very diYcult to see, is there this part of the route— (indicating), the Great Western Studios, where the

2 3 Charging Zone boundary (WESTCC-6—04-007) (WESTCC-56 04-027) Crossrail Ref: P76, Paddington Station area—Congestion Crossrail Ref: P76, Westbourne Park—Crossrail proposals Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

914 committee on the crossrail bill: evidence

6 May 2008 The Petition of City of Westminister Council artists currently reside, is there (indicating) and there concrete batching plants to central London that is rail is an existing concrete batching plant operated by served. It is extremely important in planning policy to Tarmac. Now, this is going to be an area where there make sure it is reinstated so all the materials used in it are two plans because the site actually stretches all the continue to go by rail rather than on the roads. There way down here(indicating) and then, if weput the next is a great deal of work going on in the Paddington New plan up, 028, so that the Committee get a sense of it, it Yard area. There are more issues about the batching stretches on all the way down here into the former plant but, I think given we have reached agreement goods yard (indicating) and then you can see that we with Westminster, all I need to say at this stage is that havelinkedinbecause thereisPaddingtonStationand4 the existing batching plant operates largely outside there is the Bishop’s Bridge Road site service area planning controls because it has been there for so long (indicating), so it is a very long, thin worksite which is and there have been very close discussions with needed for a large amount of work for the Bill. Westminster and with the owners and operators of the EVectively, we have got to do considerable work to the batching plant, Tarmac, about the conditions that will tracks in this location. I do not know if the Committee attach to the reconstituted facilities. Your Lordships can see, but here is the Royal Oak portal (indicating) can see that those issues all feed down into and that is where the Crossrail trains plunge Paddington Station. underground into the start, the west side, of the tunnel to go down underground under the existing tracks and into the Crossrail station at Eastbourne Terrace. 11172. My Lords, I was going to leave it there. That is Perhaps that explains why we have to knock down the a brief outline. If there are more detailed issues which building in Bishop’s Bridge Road because, as your arise—I do not think they will arise from Westminster Lordships can see, we have got to get down quite but from PRACT later on in the day—I will call Mr quickly to get into Eastbourne Terrace. Therefore, we Berryman and Mr Anderson. Mr Berryman to talk have to construct the portal, we have got to about the engineering; Mr Anderson to talk about the reconﬁgure the tracks, we have got to bring the spoil traYc arrangements. I was going to stop there in terms out from the massive hole in Eastbourne Terrace and of my introduction. we have got to stockpile all the kit we need to build the station in Eastbourne Terrace, so there is a huge 11173. Could I run through then who the Committee amount5 of work going on in this location. If we go back to the ﬁrst one, please, 027, there is a number of mayormaynothear fromthisweek.WestminsterCity existing users who have to be appropriately dealt Council, I have mentioned, I think at the most will be with. There is the bus garage that I have mentioned a short statement. Paddington Residents Active which we are in discussions to locate. Concern on Transport are here, I saw them outside, and will be touching on some of the issues I have just 11170. CHAIRMAN: It is not actually a garage, it is gone through. I understand that the Woodseer and a standing, is it not? Hanbury Street Residents are coming this afternoon/ this evening. 11171. MS LIEVEN: There is a garage as well, my Lord. Where we come in oV the bridge there is a big— 11174. CHAIRMAN: I think they are coming this it would be fair to say—not very pretty red building evening. which is a bus garage and then the buses overspill from the garage all down the bus hard standing area. They have to be relocated. The studio is being relocated into 11175. MS LIEVEN: Yes. Tomorrow Westbourne Alfred Road and, happily, we have reached the point Park Villa Residents Association represented by Lady with the studio that they are not going to attend before Bright will, I am sure, be attending and talking largely your Lordships. The Tarmac batching plant has to be about the batching plant and also about the dealt with. As far as the batching plant is concerned, footbridge, which I should have mentioned. The there is going to be a temporary batching plant built footbridge which the Committee walked over is here and then once the work is completed there is going to (Indicating), described bysomebody concerned in this be a permanent batching plant put back on the site as process as probably the footbridge that has taken up well. We may come to this tomorrow in more detail more parliamentary time than any other footbridge in with Westbourne Park residents, but I am sure it is Parliament’s history. It is a footbridge that runs easy for the Committee to understand this is a rail- betweentheresidentialareasouthofthetracksandthe served batching plant and, as such, is a very important new Westminster Academy—which I think is now facility for London because it is one of the closest in built here—and there are fairly vexed issues about this 4 footbridge which I am not going to go into now (WESTCC-56 04-028) 5 because they are not vexed with Westminster, but I Crossrail(WESTCC-56 Ref: 04-027) P76, Royal Oak Portal—Crossrail proposals will describe those tomorrow. Crossrail Ref: P76, Westbourne Park—Crossrail proposals Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

committee on the crossrail bill: evidence 915

6 May 2008 The Petition of City of Westminister Council

11176. LORD JAMES OF BLACKHEATH: On because it goes all the way across the line so would that map it says below it “footbridge reconstructed”. involve extensive possessions and, to put it frankly, is Does it imply that is exactly the line of the not down to Crossrail. Having said that, we are reconstructed bridge or the current bridge as it is? providing PRM accessibility on the south side and we have agreed to work with the Council to assist with 11177. MS LIEVEN: It is both because the bridge is issues like visibility across the bridge by putting in, if not being reconstructed in its totality, it is only being necessary, mirrors and slightly improved equality. partially reconstructed. The only thing that is changing in terms of its line—the line across the tracks 11184. LORD JAMES OF BLACKHEATH: Thank remains exactly the same—is following on from the you. It is helpful but it does still underline where House of Commons recommendations we are putting questions still may occur. inaramp thatallowspeoplewith restrictedmobilityto get up to the footbridge and that is going into this area 11185. MS LIEVEN: Yes. here (Indicating). The line of the bridge stays exactly the same. 11186. LORD YOUNG OF NORWOOD GREEN: If I may, my Lord Chairman, who are the principal 11178. LORD JAMES OF BLACKHEATH: Ms users? It is going to be the Westminster academy? Lieven, it is quite an important point because the bridge as shown on that map is straight and, therefore, 11187. MS LIEVEN: If we go back to 027, my eliminates the hidden angles which people were understandingisthat itisabridgethat hasalwaysbeen concerned about for the line and if that is the case it reasonably well used because it is not a desperately7 would be important for us to know whether that is easy place—the bridge is here—to get across these going to be it when we come to that. tracks because this takes one under the Westway and further east you have to go quite a long way down. I 11179. MS LIEVEN: My Lord, I think that is just a think the next one is called Lord Hill’s Bridge. It is product of the very small scale6 of this plan because we quitealong waydown,soforthesepeople whowantto are not intending to reconstruct that bridge so the very go north and south it had a use in any event but now slight kink, which your Lordships saw on the site visit, the principal users are likely to be the school children remains. Could we put up 009. going to Westminster Academy here, a number of whom are likely to live on the south side of the tracks. 11180. LORD JAMES OF BLACKHEATH: This is the trouble with taking us out on territory; we know 11188. LORD YOUNG OF NORWOOD GREEN: too much! Thank you.

11181. MS LIEVEN: It is the advantage of your 11189. MS LIEVEN: Returning to who is coming Lordships being very well briefed and assiduous in this week we have dealt with Westbourne Park Villas your knowledge. This is a more detailed plan and you Residents Association. The next petitioner is Mr can see the kinks still there so there is not perfect Payne, who is also highly likely to come and who some visibility, although visibility is not too bad. of the Committee met on the site visit. We have the Petition of Hammerson’s who are the owners of the 11182. LORD JAMES OF BLACKHEATH: It is triangle site which I mentioned earlier and who we are, slightly a lose-lose from your side, though, because if Ithink itwouldbe fairto say,deepin negotiationswith the kink is still there, you then have the question as to and have been for about four years. Whether or not why you have not removed the principal objection the they will come is yet unknown. Moor House are residents had. That is why I asked the question. unlikely to come. Land Securities equally we are in deep in negotiation with. Could we go back to the 11183. MS LIEVEN: To foreshadow for those Paddington map. members of the Committee who were not on the site visit, we are doing work to the south side of this bridge 11190. CHAIRMAN: That is the range of buildings following the House of Commons’ recommendation beside Eastbourne Terrace? but we are clearly of the view that this is a Network Rail bridge to with Crossrail does not interfere with 11191. MS LIEVEN: That is right. If we go back, the main part of the span. We have to do a bit of Land Securities own the freehold of the buildings on extension work on the north side and we are clear that the west side—I am not sure they own all of them—on it is not our responsibility to reconstruct this bridge in Eastbourne Terrace and there is a fairly vexed issue its entirety, which would be a very major operation about access to their buildings, both during

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6 May 2008 The Petition of City of Westminister Council construction but primarily under the ﬁnal scheme 11203. MS LIEVEN: My Lords, I am happy to say depending on where the pavement level ends up. They marvellously well. I am absolutely delighted, I have to may or may not come. I believe SMTA have put in for say, after I cannot remember how long we have been a short appearance tomorrow just to update the doingthis,thatwehave now,onthismostcomplicated Committee as to where negotiations have got to. part of the scheme, reached agreement with the local planning authority on all matters that fall within our 11192. CHAIRMAN: Lord James, it might be that is remit, which really is quite an achievement because it the time for you to make your statement. has been a long and very complicated process.

11193. LORD JAMES OF BLACKHEATH: Fine, 11204. So, my Lords, I do not think there is probably whenever you choose, my Lord. any need for me to say any more because the agreement that we beat out this morning covers lots of 11194. CHAIRMAN: They will be here and can terribly detailed points which I do not think the hear it. Committee need to be told about in any great detail. There is nothing to hide; it is just that each one will 11195. LORD JAMES OF BLACKHEATH: That is take a long time to explain. There is one issue, that of fine by me. the Congestion Charge Zone, which I know that Westminster do want to mention to the Committee, but I think both Westminster and ourselves are clear 11196. MS LIEVEN: Then Thursday looks like a that it is really not something within the remit of terrible day, but there is a lot of utility companies Crossrail. I think Mr Clarkson just wants to mention which we very hope will not come in the nicest possible Westminster’s position on it. Apart from that, can I way. We normally manage to agree with the utility thank the Committee for your indulgence in giving us companies. The main business for Thursday is likely thattime,andthankWestminsterforallthehardwork to be the Crossrail Coalition of Residents and that has gone into this agreement. Petitioners and the Residents Association of Mayfair, bothof whom,I thinkone canassume, willattend, and Mr Walters who is very closely associated with the 11205. CHAIRMAN: Mr Clarkson, you can now do Residents Association of Mayfair but so far as the some hard work all on your own account. other commercial petitioners on Thursday are concerned, we are working on the assumption that 11206. MR CLARKSON: All on my own, my Lord. they are unlikely to come. My Lords, unless the It is the loose end, inevitably, and slightly raised by8 the Committee has any questions for me now it would be Committee this morning and the question about the very helpful to us if we could have 45 minutes to sign congestion zone. Can I ask you to look at the oV the agreement with Westminster. document we have just had placed before you? The genesis of the point is the House of Commons’ Special 11197. CHAIRMAN: Mr Clarkson, is that agreeable Report. It is the second paragraph down, and I will to you? read it out just so it is clear: “We asked that the Promoter liaise with the Mayor of London and 11198. MR CLARKSON: It is, my Lord. If we could Transport for London (TfL) to seek a sensible way have the time it would be productive. forward on this matter with a view to the temporary or permanent alteration of the boundary of the Congestion Zone to accommodate a more friendly 11199. CHAIRMAN: You could come back at half and sustainable use of the area”, and “The Committee past 11 and that would preclude our having a coVee accepts that any relocation of the boundary would be break. a matter for TfL. However, as Crossrail is jointly promotedby TfLweremain firmlyoftheview thatthis 11200. MS LIEVEN: I am very grateful, my Lords, matter is within the influence of the Promoter. We thank you very much. look to Crossrail and TfL to make a sensible commitment to relocating the Congestion Zone 11201. CHAIRMAN: You can get your coVee boundary.” somewhere else. We will do that, come back at half past 11. 11207. I concede straightaway, on behalf of the City Council, that we cannot ask the Committee to At 10.40am Counsel and Parties are directed to withdraw approve any amendment of the CCZ boundary, but and at 11.30am are again called in taking the House of Commons Special Report and the TfL that you have in front of you, we do ask that the 11202. CHAIRMAN: Shall we proceed? How has 8 that negotiation gone? Charging Zone Boundary Relocation (SCN-20080506-002) Committee Ref: A60, Eastbourne Terrace: Possible Congestion Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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Committee supports the contention that TfL, who of 11219. CHAIRMAN: Where is the congestion zone course are responsible for the CCZ, be required fully boundary at the moment? to involve the City Council in carrying out the unfinished studies into the impact of any amendment 11220. MR CLARKSON: We had it this morning, to the boundary before they take any decision whether my Lord, as Eastbourne Terrace. to propose an amendment to the boundary or not. We want to be involved. Previous TfL studies into the 11221. CHAIRMAN: It is Eastbourne Terrace. western extension of the CCZ have not been subject to Which side of it? eVective or timely liaison and consultation with the City Council. 11222. MR CLARKSON: I cannot remember the reference. It follows to the south of Eastbourne 11208. My Lord, it shades between, of course, the Terrace. ordinary statutory requirements to consult, etc, for any CCZ, but of course it follows from the promotion 11223. LORD BROOKE OF ALVERTHORPE: of the Bill, and that is why it shades over into the When do you want this to be eVective from? Crossrail area. 11224. MR CLARKSON: Immediately, my Lord. 11209. CHAIRMAN: Does not the congestion All we can do is ask this Committee to beat the drum, charge require consultation with the City Council so to speak, saying to TfL, so that the message goes anyway? back: “Make sure the City Council is involved or you involve the City Council and inform the City Council 11210. MR CLARKSON: It certainly would at the so they can form a view”. end stage, my Lord, but what we want is to know what is going on now because, as I say, it shades into the 11225. LORD BROOKE OF ALVERTHORPE: Crossrail areas and we are interested in it now; we Surely, Crossrail’s involvement does not start to want up-front information. It may be the opposite emerge until they get works under way, does it? way round and they may do nothing, but, again, we would want to know that. 11226. MR CLARKSON: My Lord, that is, of course, the refinement, but if this Committee is 11211. CHAIRMAN: It is not the best moment to go prepared to be as robust as the other Committee; we and approach City Hall, is it? are not asking for the same form of words but just to say, please, that TfL keep the City of Westminster 11212. MR CLARKSON: My Lord, I do not know. involved and consulted from now on on this, because we see it as important. 11213. LORD YOUNG OF NORWOOD GREEN: Boris did not mention it in his manifesto, that is true! 11227. BARONESS FOOKES: Does the City Council have a view as to what would be desirable? 11214. MR CLARKSON: I do not think I can comment on that, my Lord. 11228. MR CLARKSON: We do not know until we receive the material, my Lady, but we want to know 11215. CHAIRMAN: I just wonder what exactly it is what the material is. you want us to do. 11229. BARONESS FOOKES: What I am saying is, 11216. MR CLARKSON: My Lord, I think the idea you have no preconceived view as to what would be would be a repeat of that last sentence that you have desirable? before you— 11230. MR CLARKSON: No. 11217. CHAIRMAN: “Before a decision can be taken”? 11231. LORD YOUNG OF NORWOOD GREEN: The penultimate paragraph on the first page there 11218. MR CLARKSON: We look to TfL and does reflect your concern, does it not? Crossrailtomakeasensiblecommitmenttoinforming and involving Westminster prior to the decision as to 11232. MR CLARKSON: That is our draft, my exactly what is going on about the congestion zone Lord. “ . . . prior to this decision.” “TfL will also liaise boundary. We want to be involved now, whether they with Westminster City Council and other relevant are going to change it or are not going to change it, parties prior to this decision”. We wanted something because it has implications for us in the City of firmer than that; we wanted “consult”. “Liaise” was Westminster now. too limp, really, because all they had to do was send a Processed: 14-08-2008 20:01:22 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of City of Westminister Council letter saying: “This is what we are going to do or not and we have talked with them closely about this going to do”. subject, the words in inverted commas at the end there are as far as we can go, I am afraid. There is really 11233. CHAIRMAN: The diYculty seems to me why nothing more I can say about the subject. this is relevant to this Bill. It may be very nice to be consulted but what diVerence does it make to the 11243. CHAIRMAN: Are the words in the House of terms of the Bill? Commons paragraph here correct? I think they are not. 11234. MR CLARKSON: It is an area that is being looked at as a consequence of the Bill, my Lord, and 11244. MS LIEVEN: No, they are not, my Lord. we, as the local authority, are very interested what They are a correct record of what the House of happens to any change that is going to be the product Commons said— of it by TfL. We are very interested to have the information up-front, now. That is how it is relevant. 11245. CHAIRMAN: Of course they are. 11235. CHAIRMAN: It has nothing to do with the 11246. MS LIEVEN: But it is not correct to say that Promoter. TfL is a co-Promoter of the Bill. No, that is a mistake. 11236. MRCLARKSON:Notreally,myLord,other than in the other Place there was a linkage. However, 11247. CHAIRMAN: In which case, I do not see Crossrail is jointly promoted by TfL and we remain what we can do. firmly of the view that this matter is within the influence of the Promoter. That is all. 11248. MS LIEVEN: My Lord, the most that the Committee can do is make some very general 11237. CHAIRMAN: I was told the other day that statement in the report; there can be no executive TfL are not promoting the Bill; they are only action here. sponsoring it. 11249. CHAIRMAN: As long as we end up by saying 11238. MR CLARKSON: My Lord, the semantics, there is not anything we can do about it, I suppose, ofcourse,arecorrect.AllI candoisdeclaretheanxiety that might go some way to help Mr Clarkson. that is with the City Council that they are very interested in this and want to receive the material as 11250. MR CLARKSON: It would, my Lord—an soon as possible. It is now in the public forum and I expression of a view would be extremely influential, I hope that TfL will take careful note of what I said to have no doubt. the Committee. If the Committee were prepared to say that is a good idea, I am sure it would be influential. 11251. LORD YOUNG OF NORWOOD GREEN: Can we endorse that part of the paragraph in italics? 11239. CHAIRMAN: I do not know to what extent Does that help? the Promoters can deal with this. 11252. MS LIEVEN: Yes, my Lord, so far as the 11240. MS LIEVEN: My Lord, as your Lordships Promoters are concerned, we would be more than can see from what is on the screen, what we have said, happy for you to endorse that and repeat it in your at the bottom, in the italics here is: “The Promoter is report. willing to continue to review and discuss the findings of the TfL study into the CCZ boundary with TfL, 11253. LORD YOUNG OF NORWOOD GREEN: Westminster City Council and relevant stakeholders Does that help, Mr Clarkson? in line with the requirements of the House of Commons Select Committee.” That is as far as we can go. TfL are not the Promoters or co-Promoters of this 11254. CHAIRMAN: I am not going to endorse “as Bill; this is a Government Bill promoted by the Crossrail is jointly promoted by TfL”. Department for Transport. 11255. MS LIEVEN: My Lord, we may be at cross- 11241. CHAIRMAN: That is what you told me the purposes. The inverted commas that we have given other day. are, I think, what my Lord, Lord Young had in mind. That the Promoter is willing to review and discuss. 11242. MS LIEVEN: True to say TfL are co- sponsors of the project, and are clearly intimately 11256. CHAIRMAN: I do not see any diYculty in involved in the project, and we are talking with them, endorsing that. Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11257. LORD JAMES OF BLACKHEATH: My Committee”. That includes that TfL is one of the Lord Chairman, is there not a problem that any Promoters. I think this will have to be changed. inaccurate statement contained in something to which you subsequently refer implies an endorsement of the 11263. MS LIEVEN: My Lord, there would be no inaccuracy unless it is corrected or amended as part of diYculty, I would suggest, if— the base documentation? I do not see how we can comment on anything which contains a wrong 11264. LORD BROOKE OF ALVERTHORPE: statement and then say anything about it without You would have to put an asterisk in showing that appearing to support it. they are not Promoters.

11258. MR CLARKSON: All it is, my Lord, is an 11265. MS LIEVEN: You could either put in an endorsement of an assurance given by the Promoters; explanatory sentence or you could simply endorse the it is nothing to do with what went on in the House of words “The Promoter is willing to continue to review Commons. and discuss the ﬁndings of the TfL study into the CCZ boundary with TfL, Westminster City Council and 11259. LORD YOUNG OF NORWOOD GREEN: relevant stakeholders” full-stop. That would I do not know, my Lord Chairman, whether Lord incorporate the thought without endorsing the James is looking at the right paragraph. The bottom mistake. one on the page that is on the screen now does not containan inaccuracy.That isthe oneI wassuggesting 11266. MR CLARKSON: We are happy with that. we endorse, for that simple reason. 11267. CHAIRMAN: Solved. Thank you, Mr 11260. LORD JAMES OF BLACKHEATH: You Clarkson. That is your task achieved, is it? would have to break it up completely to do it, though, otherwise it gets tainted by what else is there. 11268. MR CLARKSON: And a happy ending, my Lord, I hope, after a long debate. Thank you. 11261. LORD YOUNG OF NORWOOD GREEN: That is what I was suggesting. 11269. CHAIRMAN: Thank you. Anything else?

11262. CHAIRMAN: I think we have to bring this to 11270. MR CLARKSON: No, my Lord, thank you. a conclusion. The diYculty is “in line with the requirements of the House of Commons Select 11271. CHAIRMAN: Then it is PRACT now.

The following Petition against the Bill was read:

The Petition of Paddington Residents Active Concern on Transport (PRACT).

MrJohnWalton appeared on behalf of the Petitioners.

MrJohnZamit appeared as Agent.

11272. MS LIEVEN: We now move to the Petition of that they are happy with. So far as Westminster is the Paddington Residents Active Concern on concerned, it is settled inasmuch as they are happy, Transport. although it is not settled whether it is in the air or on the ground.

11273. BARONESS FOOKES: Just one thought: 11275. The Petitioner that remains outstanding that can we take it, then, that the issue of the level of was very interested in this issue are Land Securities, Eastbourne Terrace in relation to the other road has who lie to the west of Eastbourne Terrace and whose been settled, or left in the air? entrancesto theirpropertiesare aVectedby whetheror not it goes up or down. We are in deep negotiation with them at this moment and I cannot say whether 11274. MS LIEVEN: I think “left in the air” is the they will attend to ask the Committee to take some way I would describe it, my Lady! As far as further step on this or not. However, so far as Westminster City Council is concerned, they are Westminster are concerned, they are content. So far as content that further design work has to be undertaken PRACT are concerned, my understanding is that they before a ﬁnal decision is made, and we have agreed a are content with the process as it is proceeding (I will process for doing that which involves them to a degree touch on the consultation issue in a moment). Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT)

11276. BARONESS FOOKES: Is it right that I seem 11283. If I just say in opening that we are very clear to recall from the site visit that English Heritage had that that process under the Bill should be the process views upon the matter in relation to Brunel’s building? across the route, including at Paddington. If we start carryingout directconsultation underSchedule 7with 11277. MS LIEVEN: It would be right to say, my residents groups then one can see that that would have Lady, that everybody has views on the matter—very to be replicated the whole way along the route, and it few of them coinciding! English Heritage certainly do would lead to really quite significant delay and have views but they have not petitioned and, as I problems. We are certain that the best way to do this is understand it, they are content—if I repeat the same through the mechanism of the local authority, as we words—with the process that is being undergone, are doing elsewhere up and down the route. PRACT which is that engineers, conservationists and gets information and discussion through the liaison architects are all discussing these things—traYc group, but so far as the approval process is concerned engineers—and the pros and cons, and English the consultation is with the local planning authority Heritage are happy to be involved in that, along with and, through them, with local residents. I think that is Westminster. Soit is not thatit is settled oneway or the the one point I needed to explain in opening. other, but they are— 11284. The other issue that PRACT raise that I did not 11278. BARONESS FOOKES: It would not be with touch on in the general Paddington opening is that group of people together, would it? groundborne noise; but the position on groundborne noise is that which was explained to your Lordships 11279. MS LIEVEN: I am assuming that one day it earlier in Information Paper D10, and there is nothing will be settled, or there will be a floating station, but it unusual or diVerent about this section of the route. may not be for a little time. That is where we are on The Crossrail tunnels in thislocation are planned to lie that. approximately 24 metres below ground, measured from the tunnel crown to the surface, that is when they 11280. If we proceed to PRACT, I am not going to go out of the station and go east towards Hyde Park; repeat the factual issues that I touched on in opening a we are about 24 metres below ground. There is no little while ago, but the principal concern of PRACT, reason why the groundborne noise should raise any over and above the substantive issues, is consultation issue here. and discussion with them about the proposals. The position is that we have set up at Paddington a Paddington Liaison Group which is already up and 11285. CHAIRMAN: You will have to come back to running, and meeting and discussing. So we have this with Mr Payne, will you not? involved local residents and other local stakeholders including, for example, the hospital, who I did not 11286. MS LIEVEN: We will come back to it with mention in opening but who are obviously just on the Mr Payne who raises it specifically. My Lords, that is other side of the canal from the site, and local all I was intending to say in opening, unless there is businesses. They have all come together in this liaison anything else I can help the Committee with now. group, which I understand to be working well.

11281. CHAIRMAN: It includes the City Council? 11287. LORD YOUNG OF NORWOOD GREEN: Groundborne noise that is when it is operating, but I 11282. MS LIEVEN: It includes the City Council, was thinking about construction. absolutely. I should just make clear, though, so that expectations are not raised that cannot be met, that so 11288. MS LIEVEN: Ido not understand PRACT to far as consultation on the ﬁnal proposals are have any particular concerns. This is not an area with concerned, the ﬁnal appearance of the scheme above particularly sensitive users, such as Soho; and it is not ground will proceed through the Bill processes (they an area where the tunnels are particularly close to the will then be the Act processes) under Schedule 7, and surface, such as close to the River Lea where we are under Schedule 7 the consultative body is the City coming out at Pudding Mill Lane, which is where I Council. The City Council can then itself involve think in the House of Commons there was a particular anybody it wants. We know from past practice that it issue about groundborne noise. Here I think the will undoubtedly involve PRACT, who are a very concern is simply operational groundborne noise. active local residents group and have been very concerned on issues around the station, not just Crossrail, but the mechanism is that it is a tier of 11289. LORD YOUNG OF NORWOOD GREEN: consultation. So Schedule 7 involves the City Council Are you using those rails, the name of which escapes and the City Council then consults other bodies. me? Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11290. MS LIEVEN: Floating slab track. The 05-001 to 004, and a synoptic table, 05-005-009, which predictions we have here would not justify the use of attempts to summarise the issues as they now stand. ﬂoating slab track, no. 11299. I am so glad that those of you who were on the 11291. CHAIRMAN: Mr Walton? site visit were able to see during your visit many of the locations which we will be mentioning. The maps may 11292. MR WALTON: My Lord Chairman, my help you to recollect their location. Lady and my Lords, good morning. My name is John Walton. I live at number 70 Gloucester Terrace, W2 11300. The route of Crossrail, taking it as in the maps 3HH, which is in Bayswater, two blocks away from from west to east, passes through PRACT’s area from Paddington Station. I am the Secretary of Paddington the Westbourne Park footbridge over the main line Residents’ Active Concern on Transport, usually railway, which you saw on your site visit, up to the known by its acronym P-R-A-C-T, or PRACT for northern boundary of Hyde Park. PRACT’s area short, and they have appointed me as their Agent. includes, therefore, a section of surface railway, the western portal, the underground station of Crossrail 11293. PRACT is a consortium founded in 1986 of at Paddington, the works for taxi access on the other four large Paddington residents’ groups, all side of the main line station, and a tunnel section recognised by Westminster City Council for their beneath a quiet residential area. areas. Their names are: the Bayswater Residents’ Association; the Hyde Park Estate Association; the 11301. We will, however, leave the issues arising from Paddington Waterways and Maida Vale Society; and the surface railway and improvement to the the South East Bayswater Residents’ Association. footbridge to our associated member the Westbourne The two major Marylebone groups and the Friends of Park Villas Residents’ Association, who appear Hyde Park and Kensington Gardens are associates of before your Lordships tomorrow. We strongly PRACT. support their position on these issues.

11294. Our objectives cover the benefits to residents and local businesses of major transport projects, 11302. Exhibit 005 sets out in rather telegraphic form9 including in the past: the Heathrow Express railway, all the issues as they now stand following two helpful its extension to Terminal 5 at Heathrow Airport; and meetings with Crossrail. Could the first page of this the local impact of Transport for London’s please be shown now; it is labelled page 5 out of nine. congestion charge. 11303. The issues currently in order of importance are 11295. I am not a lawyer so I hope the Committee will shown in the left-hand column which is headed bear with me if I go wrong in matters of procedure. “Position now”. The positions as they appeared to us Nor am I an engineer. My career before retirement at the time we submitted our petition are set out in the was in economic statistics. same order in the middle column headed “Position previously”. The right-hand column headed “Remarks” relates mainly to the situation as it is now. 11296. PRACT supports the principle of Crossrail but seeks protection from the adverse eVects of construction and operation. PRACT submitted 11304. As a result of our meetings with Crossrail we petitions in the other Place seeking such mitigation, have been able to boil these issues— and appeared twice in support of those petitions. 11305. CHAIRMAN: One moment, Mr Walton. Are 11297. I intend to call only one witness, Mr John you talking about 003, 004 and 005? Zamit, who is already at the table. He is the Chairman of one of the four major amenity societies which form 11306. MR WALTON: The prefix is “005”, and what PRACT, and the one whose area is closest to is in front of you is— Crossrail: for instance, it includes Brewers Court which is adjacent to the proposed delivery site for Paddington Station businesses. 11307. CHAIRMAN: I have got minutes of a meeting. 11298. Our exhibits, I believe, have been given the prefix WESTCC-6—05, and “05” is the operative 11308. MR WALTON: No. What is on the screen, part. I will, for convenience, shorten this and refer to my Lord, is 05-005. “05”plus therelevant suYx.They consistof fourmaps 9 taken from the Environmental Statement, which are Table (WESTCC-6 05-005) Committee Ref: A61, PRACT- Outstanding Issues—Synoptic Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT)

11309. CHAIRMAN: We do not have that. facilities near the station which are needed because of Paddington being a major transport node. 11310. MS LIEVEN: Did your Lordships get a blue file? If you start from the back and go to the 11321. On the next page of this exhibit we set out the penultimate tab there ought to be a series of exhibits position as we now understand it on noise from trains that are “WESTCC-6—04-001”. The first one is Hyde in tunnels; this being the major element, for us, of Park shaft. groundborne noise and vibration. My witness will explain why, despite the agreement of the local 11311. LORD BROOKE OF ALVERTHORPE: It authorities to Information Paper D10, we wish to is all maps. bring this issue to your Lordships’ attention. As you know, Mr Payne will be appearing before you 11312. MS LIEVEN: There is nothing behind the tomorrow. maps? 11322. At this point I will merely observe that to the 11313. CHAIRMAN: It is all maps. south of Paddington Station the tunnels pass under an almost wholly residential area, much of which has 11314. LORD BROOKE OF ALVERTHORPE: It very low levels of background noise, where the tunnels concludes at 009. are relatively shallow. If I may be permitted to contradict what Ms Lieven has said. at the northern 11315. MR WALTON: Is it possible for your end of the section the tunnels are less than 15 metres Lordships to manage with what is on the screen? deep because there are three houses at the northern end which qualify for floating slab track. The depth of 24 metres is at the southern end where the tunnels pass 11316. CHAIRMAN: These are the pages that come under the Central Line and run under Hyde Park. The after the maps? tunnels are declining from some 15 metres to some 24 metres in this section, which is less than half a 11317. MR WALTON: Yes, my Lord. This was our kilometre long. attempt to set out the issues in a telegraphic form. I am sorry that you have not seen them! 11323.Insection4ofthe exhibit,startingonpage6out of 9, we show the key elements of present uncertainty 11318. CHAIRMAN: That is very helpful. Could 10 on six other issues, which are also issues where we say you tell us again about the three columns? that the local impact of later detailed designs is, to a degree, indeterminate at present. 11319. MR WALTON: The issues, which are currently ordered in importance, are shown in the left- hand column which is headed “Position now”. The 11324. We accept that detailed design may well issues as they appeared to us at the time we submitted alleviate our concerns, but the diYculty is that we do our petition are set out in the same order in the middle not know what it is at present. We accept that the local column headed “Position previously”. The right- authority will consult us under the Schedule 7 hand column headed “Remarks” relates mainly to the procedure when matters get to that point. position as we see it now. 11325. I also indicated to the Promoter, that despite 11320. As a result of our meetings with Crossrail, we the words in italics at the head of section 4, where I say have been able to boil these issues down to one major that these issues are included as further examples of issue which we say is overarching: the local impact of uncertainty but we may not produce evidence on decisions yet to be taken during the detailed design them, we do wish to allude to the problem of the oV- phase. This forms section one of the exhibit, which is road capacity of the taxi rank, which is part of the first now on the screen, and is broken down into two issue listed in section 4 at the bottom of the middle subheadings, as you can see. Virtually all the other section, and to the question of the environmental issues set out in the exhibit depend on decisions on impact of lorry routes towards the railhead at detailed design which will be taken later. In section Paddington New Yard. two, which is at the bottom of the page, we have included the most striking example of present 11326. Finally, for the sake of completeness, the uncertainty about detailed design, and the potential headings of a large number of issues included in our impact of it upon the local community, that is the petition where we are content with the assurances design of the Crossrail station at Paddington and its now oVered. impact, after the end of construction, upon local bus 10 stops and stands, and upon short-term parking Table (WESTCC-6 05-006) Committee Ref: A61, PRACT- Outstanding Issues—Synoptic Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11327. I call Mr John Zamit. be subject to the Schedule 7 procedure, under which the nominated undertaker puts detailed designs to MrJohnZamit, Sworn qualifying localauthorities, with aneight-week period Examined byMrWalton for the authority to state reasonable grounds for objection. We are confident that, if this eight-week 11328. MR WALTON: MrZamit, will you please tell period can be observed, the City Council will go the Committee who you are and where you live? through consultation procedures with PRACT and its (Mr Zamit) Good morning, my Lords. I am John founder members as best possible, probably in a Zamit and I have lived for many years at 2 Claremont similar way to consultation on ordinary planning Court, Queensway, London W2 5HX, which is in the applications. The diYculty as we see it is about what northern section of Queensway,in Bayswater, and not happens before then. I hope it will not sound too far from Paddington Station. I am chairman of the presumptuous when I say that PRACT believes it South East Bayswater Residents’ Association, S-E-B- could oVer useful inputs to the design process at the R-A, or SEBRA for short. formative stage from our local knowledge, and also couldfeedinthoughtsabouttheimpactofalternatives upon local residents and businesses, where there are 11329. SEBRA is one of the four founder members of feasible options being considered as alternatives. PRACT? (Mr Zamit) Yes, its area runs westwards from Paddington Station into Bayswater. SEBRA was 11333. What do you see as the solution to this founded in 1970 and is recognised by Westminster problem? City Council as the amenity society for its area.. The11 (Mr Zamit) I believe that it lies through a alignment of Crossrail, from the footbridge up to straightforward adaptation of the liaison group Sussex Gardens which can be seen on the third map, already established. We realise that as the detailed 05-003,runsattheendorunderneathSEBRA’sarea. design proceeds there will be pressure for rapid progress in order to keep on the critical path. We 11330. What is the general attitude of SEBRA to therefore ask that Crossrail should undertake to call Crossrail? on an ad-hoc basis for more frequent meetings when (Mr Zamit) Along with the other founder members of required during the detailed design stage, probably of PRACT we support the principle of Crossrail for the a small subsection of the large main group and not benefits it will bring to the local community and to confined to long evening meetings. The long evening London’s economy but seek protection from the meetings have tended to take on-board some of the adverse eVects of construction and operation. We views, but it is a very packed-out meeting, a long have kept our members well informed about the meeting, and much of it is, “We’ll get back to you Crossrail project.For instance, our lastnewsletter had later” or “We’re still working on it” or “The design’s a three-page article with colour illustrations devoted changing”.Aboveall,weaskthatCrossrailshouldnot to PRACT’s petition to your Lordships’ House and forget, evenwhen under pressure fromdeadlines, their our prospective appearance before you. Our members oVer to bring detailed design issues to residents. take a great deal of interest in Crossrail, and many of PRACT is willing to act as a framework for them hope they are still going to be alive when it finally participation in such meetings if the liaison group so gets going to take a ride on it! decides. When a firm design has eventually evolved and is put to the City Council under the Schedule 7 11331. I too, if I may say so! Could we please turn now procedure, there will still be a formal opportunity for to detailed design issues. all concerned to comment, but at that stage it becomes (Mr Zamit) PRACT’s concerns are summarised in cumbersome and time-consuming to get into the section 1 of the synoptic table which is on page 5 out of consideration of possible alternatives. It is sensible to nine in the exhibit. Let me say at the outset that we have discussions earlier rather than later, and in this generally welcome the establishment of the way time can be saved in the long-run. Paddington liaison group, following the conclusion of the Select Committee in the House of Commons; and 11334. What are your concerns about the design of PRACT and its founder member associations will sub-surface installations, in particular those under participate in the meetings of this group. Eastbourne Terrace where, as we understand it, the design of the sub-surface section is not covered by the 11332. What then are your concerns? Schedule 7 procedure? (Mr Zamit) The Promoter has told us that all designs (Mr Zamit) Our understanding is that the sub-surface for rail-connected structures, for which planning construction is covered by the Environmental permission is conferred by the Bill once enacted, will Minimum Requirements which deal, amongst other 11 things, with the construction and heritage impact, but (WESTCC-6 05-003) apparently do not place an obligation upon Crossrail Committee Ref: A61, Paddington Station—Crossrail proposals Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) to consult with qualifying authorities about the on one side only, and the wall or barrier on the other designs as such, except to the extent that the sub- side. Another way of looking at it is to note that now surface design impacts upon the surface. An example Eastbourne Terrace is a four- to five-lane road with of this at Paddington would be the location and design two pavements and that Departures Road has only above the surface of the two ventilation shafts which two lanes for much of it, and three lanes in the centre, are to be located between Eastbourne Terrace and the with only one pavement. After Crossrail, however, Departures Road, whose impact on the surface is part12 there must be the equality in the widths, unless the and parcel of the sub-surface design. On the new ventilation shafts are displaced a lot from the centre options for the design of this station, they can be seen, line. where indicated, on the Promoter’s Exhibit 04-002. Their impact above the surface would be covered by the Schedule 7 procedure, but not the sub-surface 11337. What are the present uses of the two roads? design of the station. We trust, therefore, that (Mr Zamit) Very extensive at present. Eastbourne Crossrail will consult about the sub-surface design Terrace now accommodates extensive bus stands at its through the Paddington Liaison Group in just the northernend anda busstopon eitherside, crossingthe same way as on the above-surface design. 13 middle. These stops are much-used for boarding and alighting by not only our members in the area, but for 11335. Let us turn, therefore, to section 2 of the people using Paddington Station or the Underground synoptic table, page 005, still on the first page. What station. Eastbourne Terrace also has 33 pay-and- areyourconcernsaboutthethreeoptionsofthedesign display bays which are always full, two disabled bays, of the Crossrail station at Paddington which, I two or three drop-oV spaces, a motorcycle bay which, understand, may now have been reduced to two I recently saw, contained no fewer than 54 options? motorcycles or scooters and two coach parking bays. (Mr Zamit) Yes, on the direct impact of construction, Departures Road accommodates a set-down for hire we rest upon the Environmental Minimum cars and chauVeur-driven cars as well as taxis and Requirements and welcome Crossrail’s undertaking, space for delivery vehicles, and in fact under the as set out in the Environmental Statement published present arrangements Departures Road is not solely with the Bill, to keep either Eastbourne Terrace or for the use of taxis and you could drop oV people or Departures Road open for a single lane of traYc in arrange to pick them up if they are waiting for you. each direction throughout the construction period, Our concerns are two-fold. First, there will be an except for occasional possession over the weekends or extensive loss of space for these necessary activities on for very short periods. all options for the design of the station and especially, we were fearing, on the light spine, although that has 11336. What concerns do you have about the now perhaps fallen away. It is easy to say, as the permanent impact of the construction of the station exhibit suggests, that space for these uses can be found underneath Eastbourne Terrace? elsewhere, but I do not see where the space can be (Mr Zamit) Well, here there will be a substantial found and I am concerned that it could only be found narrowing of Eastbourne Terrace and some widening at the cost of existing spaces for residents’ parking in of Departures Road under all options, it seems. The the highly residential streets where already residents’ Promoter’s Exhibit 04-002, headed ‘Possible layout of parking spaces are much in demand. The second Eastbourne Terrace’, indicates that the carriageway aspect of our concern is that this overall loss could be of Eastbourne Terrace between the kerbs of alleviated somewhat if any spare space in Departures pavement, now over 15 metres wide in most places, Road, a private road, beyond the necessary set-down will be reduced to about 10 metres, except where there and delivery spaces remained available for uses not are baysfor bus stops andthe like, and thesewould not directly related to the station, such as the motorcycle exist on the option which retains the light spine, parking which is, as I say, full up and is really solely for although maybe that has now been dropped. In our the use of people using Paddington Station and it is meetings with Crossrail last month, at each meeting not used by our members who have cycle parking we were shown a revised scheme of what was elsewhere. Our understanding is that the ownership of proposed, and no doubt it will change again in the Departures Road reverts to Network Rail once future. Since the ventilation shafts need to be near the centre of the space between the frontages of buildings, Crossrail construction is completed. In our opinion, it the carriageways of Departures Road will become is essential that the widened Departures Road should somewhat wider and would be at least 8 metres wide, it be put to the best possible use for the benefit of seems, between the pavement, which is mostly needed everybody.

12 Eastbourne Terrace (WESTCC-6 04-002) 13 11338. Can we now turn to noise from trains in TableCommittee (WESTCC-6 Ref: A61, 05-005) Paddington Crossrail—Possible layout of tunnels. Committee Ref: A61, PRACT- Outstanding Issues—Synoptic Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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(Mr Zamit) I am no expert on this, but my Sussex Square of 24 metres below ground level. The understanding is that the design standards are based diVerence betweenthis and 17.5or 15 metresunder the on the predicted outcomes from the use of standard ground level at Spring Street suggests that the tunnels form track with an uncertainty margin added. We are relatively shallow in all this short section, so the suppose that there has been experience of predictions similar enhanced track form would be suitable for the and outcomes in the case of similar modern standard whole section. Other points relative to the detailed form track when the Jubilee Line Extension and the design are the inhabited basements above the tunnels London section of the Channel Tunnel Rail Link were where they pass under Sussex Gardens and that the built, but, in answer to our question, Crossrail told us block of flats also called ‘Sussex Square’, which is on in their letter of 1 May, “We are not aware of any the north side of the square, has piled foundations. published outturn measurements of groundborne noise from either the Channel Tunnel Rail Link London tunnels or the Jubilee Line Extension and so 11341. Let us move on now to the other parts of the have no such information to pass on to you. In synoptic table where I have already indicated that you practice, measurements of groundborne noise from wish to give evidence. The first14 is the problem of these services would only take place in the event of overflow of the taxi rank at times of over-supply of complaints, and we are not aware of any complaints to taxis which are for hire. Could we please have date”. There is little comfort for Paddington residents Promoter’sdrawing04-006please. Whatdoyouhave aVected by these works. We do not know whether to say about this? there are comparable incidents of shallow tunnels (Mr Zamit) Since this part of the exhibit also refers to under quiet residential areas in these lines, so we do the so-called ‘triangle site’, may I at the outset say that not feel that Paddington residents can put much we greatly welcome the late news, which your weight on the absence of complaints. Once the line is Lordships heard at the site visit, that there is to be a built, it is built and people may not see much point in new joint forum, consisting of Crossrail, Network complaining. They would just have to put up with the Rail, London Underground, Westminster City noise that they hear, especially in the early morning Council and the site owners, to study, and plan for, the when background noise is very low. Whilst we future use of this site. In particular, we welcome the welcome the inclusion of a five-decibel margin for recent news conveyed to us at our last meeting with uncertainty,itdoesoccurtousthattheremustbesome Crossrail on 24 April, that London Underground has basis for this margin and we are not aware of what the funding for the much-needed upgrade of the station at basis is. Paddington on the Hammersmith & City Line, and plans to do this work between 2011 and 2013. We 11339. Do you have any thoughts on local conditions accept Crossrail’s recent assurance that it will be as they might aVect the predictions for the PRACT practical to do this work with the new access ramp for area? taxis already in place alongside the Hammersmith & (Mr Zamit) Well, we know from the Government’s City Line. Turning now to taxis, I will firstly describe response to the conclusion of the Select Committee in the present situation. As I have said before, taxis set the House of Commons that three houses at the north down and pick up in the station’s Departures Road, end of Spring Street qualify for floating-slab track or along with other vehicles. At times of heavy demand, non-standard track form of similar eVectiveness on taxis, which have set down, can move forward to an the basis that the foundations are less than 15 metres adjacent pick-up point as no other taxis are waiting. from the apex of the tunnels. The only named house At other times, taxis, which have had to set down, was the pub, the Pride of Paddington, which is on the must leave Departures Road and join the back of the corner of Spring Street and Craven Road. The taxi rank which often overflows on to two designated response stated that, where there are basements, an overflow paths on Bishop’s Bridge, the new bridge allowance of 2.5 metres was made. We do not know across the railway. The problem with this overflow whether all these houses have basements, but the pub arises usually in the late morning or early afternoon. has a cellar, even though the Circle Line runs beneath In all, there is designated space for nearly 80 cabs. At it,so presumablythe foundationsare correspondingly times, however, this is insuYcient and the queue lower which implies that, at this point, the tunnels are extends behind the designated area, beyond the bus some 17.5 metres below the ground level. stop and right into Harrow Road, so the taxis actually line up in Harrow Road waiting to get on to the bridge 11340. What about the remainder of this section of and, on occasion, that causes problems with buses, the tunnels? 18 bus, going along Harrow Road, so there is an (Mr Zamit) Turning to the other end of this short extensive queue for much of the time waiting patiently section of tunnels of less than half a kilometre in to get into the station. length, in their letter to us dated 1 May, Crossrail 14 quoted a depth of tunnel at the south-eastern corner of (WESTCC-6 04-006) Committee Ref: A61, Paddington Station—Taxi Provision Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11342. What taxi-ranking will there be in the new (Mr Zamit) I will try and be brief about this. I think situation when taxi access has been transferred to there is a plan, 04-004. a new location on the site of the present Red Star parcels depot? 11345. Thank you. (Mr Zamit) The new access arrangements are to be (Mr Zamit) Yes, this matter concerns particularly to permanent, and we have been assured that they will our member in the north, Paddington Waterways not be interrupted during the works to improve the and Maida Vale Society. We accept reluctantly that Hammersmith & City Line station or during later lorries cannot turn left from Harrow Road into Great development of the triangle site. The proposed new Western Road when they are heading from the pick-up and set-down points are indicated on the railhead. If the left turn was allowed, there would be drawing. They separate licensed taxis from other an overload at this junction which would vehicles taking people and goods to and from the compromise safe pedestrian crossing, nor is it station. The new access point will be closer than the suitable for heavy lorries to use Alfred Road, which present one to the strategic road network. We have is where the new Westminster Academy and several not seen a detailed drawing, but the indication is large blocks of flats are situated. The period during that the double pick-up lane will be somewhat which spoil from the Paddington area would be longer than at present. If so, circulation at busy carried by lorries using the diversion through the times could improve. residential Chippenham Road and Elgin Avenue will be limited because later on they will be carried by 11343. What about the less busy times? conveyor alongside the railway. However, we have (Mr Zamit) Taxis which have set down must still only recently realised in discussions with Crossrail leave the set-down area and join the back of a that the potential problem lies with a much longer queue. If it is longer than the available space in the period during which spoil from Hanover Square and Red Star area, it will extend, we have been told, to Tottenham Road Station sites is carried by lorry to a designated part of the two inbound lanes on the landfill and whether by rail or not. We ask that ramp. When it extends this far or further, we hope overall the environmental consequences of the that taxi drivers will go round the circulatory system possible alternative routes for lorries carrying spoil at the junction with Harrow Road rather than doing from these sites should be considered at the detailed a U-turn on the bridge, but we are not optimistic. design stage as well as the traYc implications. We have been told that the oV-road ranking capacity, including the space on the ramp, will be 11346. Thank you. Is there anything else you would 79 taxis, the same as at present, which is an like to say bearing in mind what the Committee have improvement in that it is all oV-road, but the already learned this morning? overflow problem at times is potentially the same as (Mr Zamit) Just a couple of points. On the boundary at present, it seems. We realise that one cannot seek of the Congestion Charge we welcome the assurance to legislate to remove this problem, but we do ask from Crossrail to Westminster City Council in that it should be revisited at the detailed design stage Crossrail’s letter to us on 1 May, this was the original on the basis that the general improvements to be assurance: “the Promoter is willing to continue to brought about by Crossrail should be used as an review and discuss the findings of the Transport for opportunity to address an existing problem, such as London study into the CC boundary with TfL. this one. One possibility, albeit expensive, would be Westminster City Council, and the relevant to take up a little more land by making the access stakeholders (including PRACT) in line with the ramp four lanes wide instead of three, so as to requirements of the House of Commons ---” extend the queueing space, coupled with the advantage of speeding up traYc flows on the bridge 11347. If I may interrupt there, what was shown by increasing the capacity of the junction between earlier just before we came on was this wording, but the ramp and the bridge. Another suggestion is to the words “including PRACT” did not appear. I do create some queueing space on the bridge by moving not think we need to take an issue on this because I the bus stop and pedestrian crossing from the east think Westminster City Council would treat us as a of the proposed entrance to the ramp to the west relevant stakeholder. It is the case that the letter we of it. received did include these words in brackets, “including PRACT”. 11344. Thank you. Your Lordships may be glad to (Mr Zamit) We are not saying the Congestion hear that we are getting close to the end. May we Charge boundary has to be moved. We want the now turn to the removal of spoil by lorry to the Congestion Charge boundary and the reason we railhead at Paddington New Yard near to want that is a direct result of the construction of Westbourne Park Station which is on page 05-007 15 of the exhibit, or at least that is the textual part. (WESTCC-6 04-004) Committee Ref: A61, Paddington Station area—Lorry routes Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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Crossrail during the construction of Crossrail when 11349. MR WALTON: The next point as well? there are going to be just two lanes open with only (Mr Zamit) The diagram of Hyde Park site 001. buses going south to north. There are only two lanes open during construction and that is the main arterial route from the free route of congestion charging. You 11350. Number 1, please. come oV the A40, the Westway, and the traYc comes (Mr Zamit) Yes. Just briefly here. We are pleased oV there, turns left into Bishop’s Bridge Road, down now it is a much reduced site and also the ventilation Eastbourne Terrace, and then into Praed Street and and access for emergency services shafts are going to eventually Edgware Road and Park Lane. take a lot less time to construct now but what we are saying is obviously we would like to minimise the loss of trees and we think the Council and the Friends of 11348. LORD JAMES OF BLACKHEATH: Hyde Park should be informed of any proposals there Would either of those lanes be designated a bus lane in discussions with the Royal Parks. I do believe or taxi lane? perhaps now the Royal Parks have to seek permission (Mr Zamit) At the moment under the proposal to from Westminster Council for the felling or pruning keep the two lanes open during construction they are of any trees. On this particular site I think we have not designated at all, so all the traYc that presently had an assurance from Crossrail that all the lorries uses the free route oV the Westway under the present into this site, which is North Carriage Drive, which situation will be going down a much reduced road. Of you would have passed on the last leg of your coach course, one has to bear in mind there will not be the tour, all the vehicles in and out of that site will come taxis because the taxis would have been relocated to in via Marble Arch gyratory system not via17 where another permanent entrance and there is only one bus you stopped in Stanhope Terrace-Brooke Street and route. When statistics are looked at and figures taken I think we have agreement with them on that. The forward they may well say that it can accommodate third point I would like to make is on 04-005. This is the free route, but they may not and all we want to do a new document to us, it has our interest in. We have is have an input. If it cannot be accommodated, it has this new drawing that shows the temporary bus to be moved, going down probably Westbourne routes and stops and stands during construction as Terrace which aVects our members greatly: the part of the Environmental Statement where the buses amount of traYc, congestion and pollution. Bearing have to go down Westbourne Terrace from north to in mind that one route of the buses, the north to south. We need this dialogue and want to be involved south, is going to be directed into Westbourne in the design of it because some of the properties in Terrace all we are saying is because we know the Westbourne Terrace are large oYce blocks at the feelings of our members and we know the area well, northern end more suitable for bus stands and stops we want to be involved in those discussions rather whereas further down it is very residential and we are than being given a decision by TfL that may be going pleased to see that our suggestion for an additional to consultation which they would have to do if they stop in Westbourne Terrace now appears to be are going to move. We would like to have an input. I shown on this latest map at the northern end. We are think we are confident Westminster Council will have pleased about that because we have a lot of elderly a dialogue with us but I do not think people have people in Brewers Court which we made reference to realised during construction the eVect that possibly could be had on the free route. After Crossrail has on your site visit. We are pleased about that. The last been built and opened we have heard in my earlier point I would make is that we are very happy they evidence that it is a much reduced road. It is intended have agreed to put a canopy over Brewers Court to that because of the location of the station and protect the residents, many of whom are elderly, in Departures Road buses are going back on that route, Brewers Court from this service which is 24 hours a so after Crossrail is finished we revert back at the day, seven days a week operation and all we would moment to where we are of it being a free route and ask is we have yet to see any plans of the canopy and a bus route both ways. Of course at the moment the we assume whatever is built will have to be approved taxis going oV the new bridge does not allow for by Westminster because Crossrail has said it may be private hire, minicabs or such, friends and greeters or necessary that it has sides to it as well if it is to meet dropping people oV. We are concerned on all these the noise standard to protect the people in Brewers issues, not only on our members but people coming Court. We have made some progress there and I am to Paddington to pick up their grandmother or grateful they are recognising that they have to protect whatever and we think it has to have a dialogue with these residents in the adjacent block from any undue everyone to see the implications. That is our concern. disturbance. I will leave it at that. We do think it is a direct result 16 (WESTCC-6 04-001) of the construction of this station at Paddington for 17 Crossrail. It will have a direct eVect on the flow of TemporaryCommittee Bus Ref: Routes, A61, Stops Hyde and Park Stands shaft—worksite during construction layout traYc in the area. (as per Environmental Statement) (WESTCC-6 04-005) Committee Ref: A61, Paddington Station—Proposed Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11351. It may be, Mr Zamit, that some of these some involvement which we are hoping will come matters such as that you have just mentioned are through these regular meetings. covered in the undertakings which have been agreed between Westminster City Council and the Promoter 11356. I want to refine it down to where the issues are. but, my Lord, we are in the unfortunate situation of So far as the Schedule 7 process is concerned, you hoping that these undertakings are fully satisfactory have every confidence in Westminster. This is not the but we do not know what they are. I apologise for situation we have with some local residents groups some overlap or unnecessary repetition. where there is a concern as to whether or not the (Mr Zamit) I was going to say, unfortunately, those council will involve them. At that level you are happy last minutes in the corridors outside in agreement with the position and then we come on to the words with Westminster we trust they have addressed many in italics which to some degree cover the concern that of the issues that you have been patient enough to let I think remains outstanding. What we have said is: us put our point across. If there is anything else I can “we intend at the appropriate stage in the design assist the Committee with or answer any questions, I process to brief the Paddington Liaison Panel on our am happy to do so. plans at the detailed design stage. However, the Community Relations Framework, as the title of the 11352. MR WALTON: Would you remain where strategy makes clear, is designed primarily to apply to you are because there may be questions. construction. This will be in addition to further information-sharing on design and other 11353. CHAIRMAN: Ms Lieven, it would be very developments through mechanisms such as helpful if you could go through these points and see information centres”. So far as your being involved is to what any extent there is anything we can do. A lot concerned, the panel will be given information about of them are some way into the future. the detailed design stage, particularly relating to the construction phase and then there will be further information provided through the information- Cross-examined byMsLieven sharing mechanisms that we have set up along the route and that will cover both above ground and 11354. MS LIEVEN: Indeed, my Lord. What I was below ground works. Is that your understanding of intending to do is to ask Mr Zamit a couple of the position? questions, but then to call Mr Berryman and go (Mr Zamit) That is my understanding. I have been to through with him where we were on various points. I these liaison panels, I would not say it is chaotic but suspect that would be more eYcient than trying to so many people with so many diVerent interests, if deal with it by cross-examination. anything there could be an argument that we have made this particular panel too large. It includes the bridge and it includes all the issues and there are so 11355. Mr Zamit, on the consultation point, can I put many people. On the night people are trying to get a up—I think it will have to be on the screen—the letter 18 word in too late because they are still working on that we wrote to you on 1 May which you have things. It is not easy to achieve. It is too large a group alluded to but I do not think either of us has to get down not just detail, but to find out what is produced as an exhibit. This part of the letter is going on in each aspect. By nine o’clock people are dealing with consultation and it refers, first of all, to pretty tired and still waiting to speak. At the moment the Schedule 7 process and makes the point that we it is not the best location for these meetings and I just are confident you will be consulted via Westminster feel it is going to have to be split into much smaller on Schedule 7 applications and I think you agreed groups looking at particular issues. The people on the with that, you have every confidence in Westminster bridge, as you said was spoken about a lot in this City Council consulting you? House, there is a lot of talk about this bridge in every (Mr Zamit) Yes, I think they will consult with us, but single meeting. what we are trying to do is to have some input prior to a final scheme being sent to us for consultation. It is my experience in planning where the council have 11357. You are talking about the footbridge? a deadline of eight weeks on an ordinary scheme, 30 (Mr Zamit) It can dominate a meeting and other weeks for longer, that if we speak to the applicant or issues do not get talked about. the developer beforehand, you can save a lot of time, otherwise it gets amended at the last minute or in 11358. I understand all that and I will call Mr planning it gets withdrawn and resubmitted. Talking Berryman in a moment to set out our position, but beforehand can save a lot of time in discussion at the presumably you can understand that we are building end. On some of the issues we would like to have a railway (and I cannot, for the moment, remember 18 how long it is) which is many miles long that goes May 2008 (SCN-20080506-003) through many residential communities and there has Crossrail Ref: P77, Correspondence from CLRL to PRACT, 1 Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) to be some limit on how many meetings we have at (Mr Zamit) Yes. That is exactly what we said. The each location and with how many people in order to present scheme is a long way round. You actually make the whole thing buildable. Presumably you can can, legally, under the present scheme, do a U-turn see that. on the bridge to join the rank, if it is not that long. (Mr Zamit) I can appreciate that. I do not know how You only have to go down to the gyratory system if many miles long it is but I can tell you how many the rank is completely full up. There are two U-turn years people have been talking about it, and it keeps provisions, and the new system is better. I do not changing every time. If it is just telling us what is think any of us know what the demand on taxis or going on, then I do not feel that we have an people dropping oV is going to be in the future, involvement, and I do believe that PRACT is because Crossrail, in theory, will enable people to go attempting to bring together a very large number— all the way east. So it will not be the major hub now, thousands—of people—under one roof rather than Paddington, where it is very diYcult to get a taxi. We each individual group wanting to get involved. I do not know the eVect on numbers of passengers not think they have certainly got to make changes to the only with Terminal 5 coming on board but, perhaps, liaison panel. When I have seen other information another runway. So it is diYcult, in the future, to centres I have been to, exhibits in Porchester Hall, see—I do not know if figures have been produced— you cannot ask detailed questions and I raised a what the likely impact is on the number of taxis. All couple of points and they could not be answered on we know on the present day is that 79 spaces is the day. They are interesting for passengers going insuYcient to have a proper system working. You through Paddington and the public just popping in, have heard me talk about the problems it is causing but I do not think they are an opportunity to get into in Harrow Road. So if demand for taxis goes up we any real detail, that is all. As I said before, in one have still only got 79 spaces being allocated, and that month we were presented with two diVerent schemes, is probably all you have to provide—you are losing and it seems to me that they are listening to us when 79 and you are providing 79. We are just asking that it is explored on the measures we have indicated— we put points forward in that early design stage they that that should be tried and be improved for a new are being taken on board. Our concerns and views on station. If there was a big demand from Crossrail at Eastbourne Terrace, the reduced width with the Paddington there will be even more taxis queuing up. spine, was taken on board and we asked them to take into account the dropping of the road—the advantages to us in having a level surface with the 11360. LORD JAMES OF BLACKHEATH: Am I Departures Road. So they are listening and we have right in thinking the new taxi location is somewhat had this opportunity to talk to them now because we removed now from the original taxi position adjacent are in front of you today, but there have been frenzied to the ticket booking oYce and that there is no ticket to-ings and fro-ings in all parties—and much of it is booking oYce beside the new taxi location? coming in late—but I just feel we have got a lot to oVer. 11361. MS LIEVEN: That is right, my Lord, inasmuch as, if we just use this plan, the existing ticket oYce is approximately here. The position for 19 the new ticket oYce is not finally fixed but it will be 11359. There is just one other thing I want to touch somewhere (and Mr Berryman will tell me if I have on with you, which is the design of the taxi pick-up got this wrong) in the middle of the station. So it will and drop-oV. Can we put up 6-04-006? I think you be further away from the taxi— made this point in your evidence but I just want to be absolutely clear on it. If we focus in on the bottom right drawing, under the existing situation at 11362. LORD JAMES OF BLACKHEATH: It will Departures Road, if a taxi drops somebody oV it then be inconvenient for anybody using a taxi to bring their luggage in and then have to drag it across to the has to go all the way down to the end of Departures ticket oYce and then back to wherever they need to Road, U-turn, back up Eastbourne Terrace, back go. round to the roundabout and then back in again in order to join the queue to pick somebody up. So you have got this very complicated manoeuvre for the 11363. MS LIEVEN: My Lord, there are going to be taxi to do both things. Under the new scheme on the lifts and, I believe, an escalator down from the Red Red Star deck taxis are intended to be able to set Star deck into the body of Paddington Station. So down and then immediately pick up on the same although it will be slightly further than it is at the manoeuvre. That should be a significant advantage moment, it is not going to be a particularly diYcult— under the new scheme, should it not? 19 11364. LORD JAMES OF BLACKHEATH:I (WESTCC-6 04-006) guess about 150 yards. Committee Ref: A61, Paddington Station—Taxi Provision Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11365. MS LIEVEN: I would not have thought, my cars and “meeters and greeters”. At the moment, you Lord—I cannot give you the precise measurement— go down the little steps on Eastbourne Terrace. If so far as that, given that there will be lifts and there are lifts as well it is going to be better but it is escalators. It will not be as close as it is at the not as good as getting oV at a lower-level crossing. moment, but compared to other central London stations it will not be, in the least bit, a diYcult 11369. LORD YOUNG OF NORWOOD GREEN: manoeuvre. It is diYcult to predict and I understand the point you make, Mr Zamit, but on the face of it, regardless of 11366. LORD BROOKE OF ALVERTHORPE: those other habits—Spring Street (and you cannot The new ticket hall will be easier for people getting rule those out)—this looks a better system than what down on to the Underground, will it not? currently exists, apart from the fact that you have, as Lord James said, to negotiate a bit further and go in 11367. MS LIEVEN: It will be slightly closer, my a lift. In terms of getting the taxis in and out again, Lord, yes. There will be swings and roundabouts. A this, to me, looks more eYcient than currently. I have critical point is one that Mr Zamit has touched on, used Paddington a lot. which is because Crossrail is a fast, through route (Mr Zamit) We welcome this and the best news we that goes all the way to the City, if you are coming have had in all these proceedings is that the Red Star from Heathrow, say, and you want to go to the City, deck, the new provision, is going to be a permanent or indeed to the West End, at the moment there is situation for the taxis and not a temporary position. quite a strong incentive to get oV the Heathrow We have wanted this for too many years than I can Express and get into a taxi—it is a manoeuvre you see remember, and we do welcome it, but it still does hundreds of people doing every day—but because of throw up these other problems that we want to be Crossrail the quicker thing to do, rather than battling involved in. We just think they should be looking to with central London traYc, will just be to stay on improve the capacity of the taxi ranking stands and Crossrail and go straight through to the City. So it is looking at ways to get rid of problems that we know by no means the case that Crossrail will increase the exist already. number of people needing a taxi; in fact, there is quite strong evidence that it is likely to decrease taxi use. 11370. LORD YOUNG OF NORWOOD GREEN: Although, of course, as Mr Zamit says, nobody I wanted to comment, my Lord Chairman, on a more knows what is going to happen in ten years’ time, and general point, on this question of consultation. Here there may be other factors that come into play. we have a group of residents who want to participate in a constructive manner. As I listened to Mr Zamit 11368. Mr Zamit, I think I will leave it there and I will describe one of those liaison panel meetings I had a ask Mr Berryman to deal with other— great deal of sympathy with him. I am not sure who (Mr Zamit) Just on that last point, I think there is an is chairing these meetings but it needs to be done very incentive for people to stay on Crossrail, but all the eVectively; you have a long agenda and the danger is people who live south of Hyde Park (maybe not you will miss them. Obviously, there is a limit to how Mayfair but to the south) may still decide that much involvement, but given that here is an Paddington is a better venue to go to and a more organisation that is oVering constructive comments, convenient venue. I am not sure they are going to my question to Ms Lieven is: how can we get round want to get out at Tottenham Court Road or Bond this problem? Is there the ability for PRACT to Street and try looking for a taxi to take them to submit written submissions, etc, or whatever? What wherever they are going. So I think Paddington will do you suggest? still be a popular destination for taxis. Whatever the investment is and whatever the improvements are, we 11371. MS LIEVEN: My Lord, given that it is the are not going to stop now the numerous taxis that last week I will swap into evidence-giving mode. I come to Paddington (I do not know how familiar you have a great deal of sympathy as well, and anybody are with the area) and drop the passenger without who has been involved in local organisations, heavy luggage (just light luggage or no luggage) oV in particularly around major infrastructure projects, Spring Street and they walk over to Paddington knows that these meetings can go on forever, and Station, or they drop them oV in Eastbourne Terrace, they are very diYcult. Some of it is just practical, and so that a lot of them do not use even what is there. we are doing our best, in terms of giving these Those people will say “Drop me oV in Spring Street” meetings the right information and giving it to them because it will be cheaper as well, so it is nearer to the in the right form. There is absolutely no reason why, station. So we are still going to have that age-old if PRACT want to make written comments on problem of people coming by taxi to the station but something, that cannot be handled in that way so that who will not actually use the facilities provided. I am it does not have to involve half-an-hour in a meeting nervous of the future, as I have said, for chauVeur where PRACT put their detailed points. If they are Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) given information in advance, whether on the web, or in a moment, who I think will indicate that so far as whatever, and they make written comments, then the below-ground works are concerned, then that is that is wholly appropriate and, often, a much better often more a question for engineers and for use of time. consultation with London Underground and there may be less information given at an earlier stage. 11372. Insofar as how the meetings themselves go on, One, the parameters are just that much more fixed— I suspect all Members of the Committee will know we have to build in accordance with London that that depends so much on the chair of the Underground standards, and obviously that is highly particular meeting, but, also, the spirit of co- influenced by safety—but, also, there is no amenity operation within the meeting. That is one of the issues about the visual impact of those kind of works, diYculties that projects like this have. PRACT are, so there may be slightly diVerent issues there. clearly, an expert body doing their absolute best in a very constructive spirit. That may not necessarily be Examined byTheCommittee true for every group we work with up and down the route. On the other hand, we cannot have one set of 11376. LORD BROOKE OF ALVERTHORPE:I rules for one group and one set of rules for another would like to ask Mr Zamit if he has any experience group, because that would immediately lead us into of coming in and giving guidance at the design stage? enormous trouble. To some degree the Committee Could he be a little more precise at which point he or has to rely on the good faith of the Promoters, which, his organisation were coming in to make its input? in my submission, has been clearly borne out, for (Mr Zamit) My experience for many years for example, by what Mr Zamit has said, but also our SEBRA is on the planning side, where we get expertise. We have a large community liaison group applicants putting in applications who do not talk to within Crossrail, a number of whom gained us, and often they do not even read the Council’s experience on the Channel Tunnel Rail Link, which policies. If we talk to them in the early stages, when was generally a very successful project in terms of they have developed some idea of what they want to community liaison, and we have tried to take the best build, it can be of great benefit to them and us and the practice from that and bring it forward to this City Council, so they do not go in with stupid things project. and they do not realise this or they do not realise that. Our experience with TfL on bus routes is that they 11373. LORD YOUNG OF NORWOOD GREEN: just go in and put bus routes in and, more important, There is a last point I want to make on it. I cannot see bus stops. We had a bus route put in Queensway, the words in front of me now, but the phrase you used Route 70, years ago with about six bus stops and in relation to the liaison panel was “at an appropriate there was very little consultation and they decided to stage in the design . . . ” The point I am trying to put the bus stops up and every single bus stop they address, which I think is the point Mr Zamit was put in had to be moved, because we knew who lived making, is that at a point where they could possibly above it or the consequences of sheltering in a block influence options or say to you: “Have you of flats next door. At the end of the day they said, considered this possible solution to it?” (it is that “We wished we’d talked to you before because we’d phrase you used—“appropriate”), are they involved put them in a better location, not just for you but a at a point where they could influence your decisions? better location for us as well—a more sensible location”. We find it is better to talk earlier on. I agree 11374. MS LIEVEN: They certainly are at the you cannot talk at the very early stages. In this moment, my Lord, yes, undoubtedly. There is a particular instance, I would feel that earlier diYculty in some areas, which is that if you put ideas consultation is better. If you do not consult with forward then you can set a lot of hares running and people who address it sensibly—and we will certainly you can make discussion with the local community do our best to do it by letter—you can often send out very diYcult. One can quite see with PRACT that is a consultation document which in itself is flawed and not a problem but, as I said a moment ago, you have people are complaining about what you are to use the same rules for everybody or we get into proposing, whereas if you had got some of the basic terrible trouble. Certainly in terms of the information issues sorted out you could have had a much more that we refer to in this undertaking, in terms of meaningful consultation on a better document. Lots information sharing, we would hope to put out of people say, “We haven’t got the time to talk to information in a form and at a stage where people you”, and I say, “If you make the time it’ll be quicker could comment on it in a meaningful way. and a much better result for everybody”. I think we have got the experience to bring to the table. 11375. Certainly on the above-ground works that are Certainly John Walton, our Secretary, has got covered by Schedule 7, that is covered within the enormous experience on this and other issues. Our Schedule 7 process. I am going to call Mr Berryman experience of the meetings—they are very well Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) chaired at the moment but there is too much to go distribution. We have AGMs, we have other through in one meeting. I think there has been a meetings, and we can get feedback from people with suggestion that has to be put to the next meeting that disabilities and other people who use the station. We there should be, one, more frequent meetings, but just want one point of contact as far as Crossrail is maybe split into groups. We have got to look at the concerned. From our members’ point of view it is whole of this matter at this consultation. I do think with PRACT. The general public can still go to these we can work with Crossrail and the relevant people exhibitions. and bring a lot to the table. Let us face it, we live in the area and we know people’s walking habits. People 11379. Do I understand then that you will be aiming do not do enough site visits and they go at the wrong to have more specialist people dealing with the time of day. They go and look at Queensway at ten Promoters and Westminster City Council on certain o’clock in the morning when it is as dead as a aspects who, as it were, take the lead? doornail. They should go there on a Sunday night (Mr Zamit) I think we have got members on our and see what Queensway is like. We can bring that committees where they will feed in through John input of the way people walk to a station, the way Walton—we have got people in the Marylebone they leave a station, how their friends pick them up Society, myself and others—but we will not be and how they get dropped oV. It is just good, useful, splitting into individual people; it will all be through commonsense information that we have. It is not one main heading through the Secretary of PRACT. unfair to them; they just do not know because they do We will not allocate diVerent people because we think not live there. People who use the station may be able that will make it more complicated for Crossrail to to comment on it. I think we have just got a lot to deal with. bring to the table. 11380. I am just seeing how you can make the thing 11377. LORD BROOKE OF ALVERTHORPE: work more eVectively, and I am sure you will go on What did you think of Ms Lieven’s suggestion as a reﬁning this, will you not? way forward? (Mr Zamit) I think if you spoke to other people we (Mr Zamit) I think if we could be brought in—and I have dealt with, and the City Council and others, that am sure these days with the master of emails we can we are good people to work with, and we end up with have a good input and we can do a lot of talking to a better result and a better design. our people—I certainly think we welcome that oVer to consult us. We are not asking for long, long 11381. MS LIEVEN: My Lord, I am conscious that meetings and for the other side to do long, long we have had some quite helpful correspondence with minutes. We just want to have an input. We care the City Council about this issue. What I suggest is I about the area we live in—we are passionate about will get that correspondence copied over the lunch where it is—and we want a good railway station for adjournment and ask Mr Berryman about it after London, England and for the area. lunch. Obviously it is not really for us today to get into precisely how this liaison panel works, but they 11378. CHAIRMAN: Mr Zamit, are there members are issues that we have been concerned about, our of the group who are particularly interested in certain community relations oYcers are involved in, and Mr aspects of this? We have dealt a great deal with the Graham King, from the City Council, is the chair of taxis. One of the ways of avoiding having immensely this liaison group, so we are all working quite well long meetings is if you have somebody who is together, I would suggest, on this particular location. charged with a particular issue, and who is trusted by I will get that correspondence copied and we can look all of the colleagues and can actually take that at it brieﬂy after lunch. forward and be the main protagonist? (Mr Zamit) Yes, we have several representatives of 11382. CHAIRMAN: I think that would be helpful. over a thousand people. We do an extensive report on The more eYcient this is the better. Mr Zamit, in your what we are doing and most of the subjects we have petition you raised the question of the Heathrow talked about today are all covered in our newsletter, Express. Nothing has been said about that this and we have an input from them. We are not asking morning—is there any point left that you want to for meetings with lots of our members going to the make on this? meetings. We are prepared to organise our members (Mr Zamit) There is nothing to raise on the and our concerns and channel it through John Heathrow Express. Walton on behalf of those four groups. We are not asking Crossrail to get into a dialogue with our 11383. MS LIEVEN: It is one of the aspects we members; it is only the associations, and only that agreed this morning with the City Council, as to how through one main group, PRACT. We just want the we would handle the undertakings that we given information sent to one point. We will do all the under the Heathrow Express Act. Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11384. CHAIRMAN: For reasons of course I MrKeithBerryman, recalled understand, we do not know what you have agreed Examined byMsLieven and we never will! It is in the petition, I just wanted to make sure it was not being missed out. Do you 11395. MS LIEVEN: Mr Berryman, I think the only want to ask any follow-up questions? thing we need really to cover is our approach to consultation with groups such as PRACT. First of 11385. MR WALTON: No, my Lord. I am most all, can you just explain what consultation will take grateful for the interest which your Lordships have place with PRACT in relation to surface-level works been taking in the matter, but I do not wish to re- under the Bill? examine. (Mr Berryman) Yes, the ﬁrst thing to say is that we have a very eVective liaison group working already in 11386. CHAIRMAN: In that case, I think it is a very the Paddington area. It is chaired by Westminster good time to adjourn. Shall we do so until half past City Council and appears to be meeting the needs of two. Will that give you enough time to do the all the people who attend it at the moment, although photocopying? I think, as PRACT have said this morning, that there is perhaps a need for some more detailed discussion on some aspects with a smaller number of people, and 11387. MS LIEVEN: Absolutely, my Lord. that is something we will come back to when we have got the copied letter. The basic means by which this The witness withdrew residents’ group and any other residents’ group will be consulted is during the planning process under The Committee adjourned from 1.03pm until 2.30pm Schedule 7 of the Bill when they will be consulted by the local authority prior to the local authority granting consent. What we will be doing in this case, 11388. CHAIRMAN: As a result of listening to the and in all the other cases, is getting from each local rail freight Petitions, we thought that it was worth authority a list of those persons to whom we should putting to the Promoter the possibility of an circulate the planning applications at the same time undertaking in the following terms: as we send them in to the local authority, and we would conﬁdently expect in the case of this area that 11389. We recognise the importance of rail freight to PRACT would be one of those groups, so they will the economy and require the Promoter to give an get the documents from us at the same time as the undertaking that any subsequent decisions taken by local authority gets those documents. Prior to that— the Promoter on the proposed infrastructure will not impact negatively on the ability of the rail network to 11396. CHAIRMAN: So it is really a matter for Mr sustain, and expand, the carriage of rail freight to the Walton to provide you with it or Westminster City forecast levels for 2015, accepted by the OYce of Rail Council? Regulation. (Mr Berryman) To provide us with a list of who should get the documents? 11390. There is no need to answer now on the part of the Promoter. You may just conceivably have seen it 11397. Of who should be circulated. before, but, if you could give us at some time an (Mr Berryman) Yes, it is for Westminster City answer to that, whether you will be able to do that, it Council to provide that list. In this case, knowing, as might go a little way towards resolving the dispute. I do, the relationship between Westminster City Council, PRACT and myself, I would have no doubt 11391. MS LIEVEN: We will take instructions, that PRACT will be one of those groups to whom we my Lord. would be required to circulate the applications. Prior to that, we will expect the consultation to take place at the liaison group or at an oVshoot of the liaison 11392. CHAIRMAN: Indeed so. group, if you like, so that we can pick up the residents’ concerns and suggestions. 11393. CHAIRMAN: Now, Mr Berryman? 11398. MS LIEVEN: Can you then explain what the 11394. MS LIEVEN: My Lord, I alluded before diVerences are between the process for surface-level lunch to a letter that I was going to put before the works and for sub-surface works? Committee just to show where we were on (Mr Berryman) I think the point to make about the consultation, and I think it is just being copied at the sub-surface works is that the design of the sub- moment, so, I will go straight to Mr Berryman surface works is very, very heavily constrained by the instead. standards which we adopt which are to some extent Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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LUL standards, but, because of the scale of these want to split the Panel, depending on the nature of works, we have some standards of our own, which the issues being raised; and that, in general, we should are agreed with all the relevant safety authorities, and adopt a ﬂexible and responsive approach to the the passenger circulation which we have to achieve, timing of Panel meetings—this includes the and the need for the trains to be properly accessed by assumption that the Panel is likely to need to meet the passengers. It sounds a silly thing to say, but you more regularly at certain critical stages in the project. clearly have to be able to get on and oV the trains. The We would welcome your views on this. For your constraints, the freedom of action in the information, we will be bringing a formal request to underground works is very, very seriously limited the May Planning Forum for local authorities to and we would expect that it is probably less likely that identify the non-statutory bodies they would like a group, such as PRACT, or a residents’ group would copies of requests for approval to be copied to.” I be able to make much of a contribution to that think that is the list you were referring to. design. (Mr Berryman) Indeed.

11399. While we are on the consultation issue, can we 11401. “I can also report that, in response to issues just look at this document which we have just had about acoustics, Network Rail have some booster handed round. The second part of this page is an equipment which we are going to trial with a view to email from Gareth Epps who is one of our using it at the next Panel meeting in June”. Then there community relations managers to Graham King who is a response from Mr King: “Gareth, John had is the lead oYcer at Westminster on Crossrail issues raised some of these issues with me earlier. My view and who, I think, chairs the liaison group. Is that remains that I would welcome a debate at the meeting right? on how we take these issues forward. Such a debate (Mr Berryman) That is correct, yes. is needed alongside your programme of activity and how the various members want to be involved. So please add to the agenda. I look forward to the 11400. A number of members of the Committee will 20 booster equipment! Graham.” So are these the kinds have met Mr King on the site visit. It is in relation to of issues which are being discussed with Westminster the kinds of issues raised by PRACT this morning in terms of how the liaison panel works as the project and perhaps I will just read it out. “Dear Graham, at goes forward? a meeting to attempt to resolve outstanding (Mr Berryman) They are. I think we are only on petitioning issues from PRACT, John Walton and about the possibly, I think it is, third meeting of the John Zamit raised a number of points relating to the liaison panel, so these are the kinds of issues which Paddington liaison panel as it will operate in the are bound to become clear as the committee meets future. In order to try and resolve these concerns, and the process develops. As I said earlier on, which relate largely to the need for the timing of Graham King appears to be doing a very eYcient job meetings to be flexible, we agreed to write to you as in chairing these meetings and taking care of our Chair of the Panel. This also has reference to the needs and also the needs of the Petitioners in this briefing we have agreed to provide to the Panel at the case. appropriate time in the detailed design stage. Clearly, the local authority is the consent-granting body with regard to any applications under Schedule 7, and it is 11402. If Mr King thinks that there should be more the decision of that authority as to whom it treats as meetings or smaller meetings or meetings of a slightly a consultee on that basis. These are of course matters diVerent format, is that something we will seek to for you. As seen from there, there may be some accommodate? advantage in providing some clarity to groups such (Mr Berryman) We will certainly seek to as PRACT about how they see this process as accommodate that as best we can. Obviously operating. Conversely, we do not wish in any way to Westminster is a very important authority as far as appear to fetter the Council’s exercising of its powers this project is concerned because we have very under Schedule 7. In particular, PRACT suggested significant works in the City area, so we maintain a that: meetings should be held (if felt desirable) more very close working relationship with them. frequently than on the current timescale, should the nature of agenda items so dictate; again, if desirable 11403. MS LIEVEN: Can we then move to a couple to hold a more detailed discussion (for instance, on of quite discrete topics. Departures Road—Mr issues aVecting a specific geographical area) outside Zamit raised concerns about the final design of the main Panel meetings that should go ahead, or Departures— that we may (as was referred to at the first meeting)

20 Westminster City Council Paddington Liaison Panel (SCN- 11404. LORD BROOKE OF ALVERTHORPE: 20080506-004 to -007) Excuse me, but have you ﬁnished with consultation? Crossrail Ref: P77, Correspondence from Crossrail to Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11405. MS LIEVEN: Yes. (Mr Berryman) My Lord, it is our fervent hope that it will be us of course. The nomination order will have 11406. LORD BROOKE OF ALVERTHORPE: If to be made after the Bill has passed into law, but the I may, I have a question. I am grateful for the copy of current intention is that it will be Cross London Rail exchange of letters there and the one that went from Links who is the nominated undertaker, and that is Mr Epps to Mr King sets out a range of proposals the company for which I work and also Mr Epps and that have come from PRACT and we now have the all the other technical witnesses that you have seen response to open up a debate on it, but, adding to are employed by. that, as I understood it, Mr Berryman, you said that there will be consultation with the liaison group or an 11412. MS LIEVEN: My Lord, I think it is “oVshoot of the liaison group”. I am correct, I think, probably best to be frank about this because I am just in hearing that. concerned that we might be getting on to slightly (Mr Berryman) You are correct, my Lord, in that. tricky territory. Confirm this if it is right, Mr What I was envisaging as a possibility there is that Berryman: that we are not giving an undertaking or occasionally with this kind of group you get sub- assurance that, where there is a liaison panel, we will groups created or special interest groups or necessarily hold sub-groups and sub-panels, and the something of that sort and, when I used the word point of this letter is that, in respect of this area, we “oVshoot”, I was thinking of that sort of thing which have a very good working relationship with a very may or may not happen in the future, but there is eVective chairman in Mr King and the letter shows obviously a strong possibility that something like that it is all proceeding in a thoroughly helpful and that will happen. collaborative manner. Is that a fair summary? (Mr Berryman) That is a fair summary, but, as I said 11407. So my reading then is that, subject to earlier on, there are horses for courses and this may agreement with Westminster City Council, a fair be appropriate in some other areas and not amount of what the organisation was seeking this appropriate in some other areas. It is just a question morning has been conceded? of the attitude of the local authority. (Mr Berryman) Yes, my Lord, that is the intention of the letter, to make that clear. 11413. CHAIRMAN: I think we understand what you are saying. 11408. MS LIEVEN: Is it right to put it this way, Mr Berryman: that how the panel takes forward its work 11414. BARONESS FOOKES: Is it also not true is a matter for discussion between the members of the that this is a particularly complex area and, therefore, panel, including critically Mr King? it is more likely that, for practical reasons, you might (Mr Berryman) Indeed it is. want to break it down? (Mr Berryman) My Lady, that is absolutely true, yes. 11409. I just want to make that clear because we are It is one of the most diYcult areas on the whole not setting out some formal assurance or project not in terms of geology or anything like that undertaking as to how all liaison panels up and down but in terms of fitting it all together. the route will work and that they will necessarily split into sub-groups and sub-panels. Is that right? It will 11415. BARONESS FOOKES: Thank you. have to be discussed area by area? (Mr Berryman) Yes, there are horses for courses. In some areas, that may be an appropriate approach 11416. MS LIEVEN: Moving on from consultation, and in other areas it might not be. Mr Berryman, a concern raised by PRACT was the treatment of Departures Road at the end of the scheme. Could you just confirm, because the 11410. LORD BROOKE OF ALVERTHORPE: It Committee have not seen the agreement we entered is Crossrail’s usual flexible approach? into with Westminster, in that agreement we have (Mr Berryman) We are always flexible, my Lord. agreed the whole of Departures Road will be treated as a work site for the purposes of the Bill and, 11411. CHAIRMAN: Yes, but it goes further than therefore, the way it is laid out at the end will be that, does it not, because, as it will be the nominated subject to the approval of Westminster? undertaker who has to give eVect to undertakings (Mr Berryman) Yes, that is correct and it is not just and assurances, it will not be Crossrail anymore and, the layout of it, of course, it is the uses it is put to if we are going to have assurances and undertakings, because clearly there is a potential to have things like they have got to be capable of being managed by the dropoV points and other facilities on this space if that nominated undertaker which may not be the same is what the local authority and other interested as you. parties agree to. Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11417. If I can explain to the Committee, there is a (Mr Berryman) That is correct, my Lady. slight complication with Departures Road because it is not highways. The reason it is coloured yellow 11425. CHAIRMAN: Are we, because surely we is it is technically not part of the highway and, are also dealing with the highway movements during therefore, on Eastbourne Terrace Westminster construction? would under the powers in the Act be fully involved (Mr Berryman) Yes, my Lord. As far as the traYc in the ﬁnal scheme. In theory only the parts of the movements and the highway arrangements are Departures Road which fall within work the site concerned, we are talking about during and after would have fallen within their agreement provisions construction. The ﬁnal layout is the time when the in the Act. What we have done in order to overcome buses move back and all that sort of thing happens, that is to agree that we will deem the whole of that is the time when we have to get not just Departures Road to be the work site. That is why Westminster City Council but Transport for we had to go through that slightly complicated London involved in that part and, indeed, mechanism. Network Rail.

11418. CHAIRMAN: Mr Berryman, that is ﬁne so 11426. BARONESS FOOKES: I have a personal far as concerns construction, but Westminster City interest in this working well because I use the station Council is also the highway authority? a lot! (Mr Berryman) They are, my Lord. (Mr Berryman) So I understand, my Lady, yes.

21 11419. Therefore they will be dealing with traYc 11427. MS LIEVEN: The final topic I want to flows? cover with you, Mr Berryman, is trees in Hyde Park. (Mr Berryman) That is correct, my Lord but, as Ms Can we put up 001, please. I did not cover this in Lieven pointed out, that Departures Road is not a opening at all, my Lords and my Lady, because I public highway, it belongs to Network Rail. It is for did not understand PRACT were going to raise it, that reason we made a specific agreement with them although we have discussed it with them in the past. that we will treat it as part of the work site and, Mr Berryman, can you explain what we are doing therefore, the reinstatement of it will be governed in Hyde Park and how it has changed since the Bill by the provisions of our reinstatement policy, which was introduced into Parliament? means in eVect we get to the same conclusion that (Mr Berryman) Yes, when the Bill was originally Westminster City Council will be the main introduced into Parliament this shaft in Hyde Park determinant of what happens to that. would be for the purposes of intervention by emergency services and also for ventilation. This shaft is unique in the set-up in that it is closer to 11420. The Eastbourne Terrace traYc will be a other shafts than is normal. Normally, we have one matter for the City Council, will it not? kilometre between shafts. If we had done one (Mr Berryman) Yes, my Lord, it will. kilometre between shafts in this area, we would have finished up with a shaft in the middle of a grassed 11421. So will parking? area of Hyde Park and we were quite unable to (Mr Berryman) Yes, all of those things, parking, come to an agreement with the Royal Parks and dropoV points, motorcycle parking, disabled other interested parties about how that could be parking. treated to make it look unobtrusive; indeed it could not be treated to make it look unobtrusive. We settled on a site for a shaft just here underneath the 11422. Bus stops? North Carriage Drive and at that time it was going (Mr Berryman) Bus stops, bus stands, of course to be a ventilation shaft and there was going to be they also have to be agreed with Transport for an underground passageway that went around to London. the back of the pet cemetery. I do not know if members are familiar with that on the Bayswater Road. Subsequently, because these shafts are close 11423. Naturally, yes. together, we established that we do not need any (Mr Berryman) As I am sure you will appreciate, ventilation capacity here at all under any scenario there are all kinds of people who need to accede to that we can envisage. The shaft becomes purely for what we do. intervention and the intervention will be from a sort of hatch in the floor next to Bayswater Road 11424. BARONESS FOOKES: We are talking through an underground passageway and then about the permanent arrangements after the work 21 has been completed? (WESTCC-6 04-001) Committee Ref: A61, Hyde Park shaft—worksite layout Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) down the shaft just here (Indicating). The reason for 11434. BARONESS FOOKES: You also have this that is this is the point to which the fire brigade can problem of the fire appliances getting through at all get with a fire appliance all the time. Other times times, have you not? That is a constraining factor, this road is closed and they cannot get down it so I presume? that is why the entrance is arranged there. Because (Mr Berryman) That is another constraining factor, we no longer have this adit which runs underneath my Lady, yes, and it is finding the best balance the North Carriage Drive, we have been able to between appearance, accessibility and so on, and reduce the number of trees we would need to knock obviously by any stretch Hyde Park is going to be down. We think by refining the design further, we a diYcult site. can reduce the number of trees further. The trees which we do knock down—there are bound to be 11435. LORD JAMES OF BLACKHEATH: some, we cannot get to none—we will be reducing Given the big appliances have to go through, could the numbers as sensibly as we can. When we do have you not have taken a tunnel extension through from to fell a tree, we will replace it with a semi-mature the Park Lane underground car park and gone tree which I understand is better than replacing it straight through into the park from there? After all, with a mature tree because they grow more quickly. you would have plenty of room for the vehicles there. 11428. BARONESS FOOKES: That is right. (Mr Berryman) That is very well to the south, my (Mr Berryman) That is the position at Hyde Park. Lord. That is quite a long way from the site.

11429. MS LIEVEN: I am going to ask call Mr 11436. LORD BROOKE OF ALVERTHORPE: Thornely-Taylor after Mr Berryman to deal briefly Are you saying that the fire authorities do not have with the groundbourne noise issue. access to the park? (Mr Berryman) Apparently they cannot always get 11430. LORD JAMES OF BLACKHEATH: into North Carriage Drive. There are gates across Could I put a question to Mr Berryman, please. Mr it which are shut at night. There are no buildings in Berryman, did you look at the possibility that within Hyde Park, but in the normal run of things the fire Hyde Park there are still some of the subterranean brigade would not ever need to go in there. workings from World War II that could have been reactivated and extended so you would not need to 11437. It would a save an awful lot of money if they sink an access tunnel at all? had a set of keys and they could open the gate rather (Mr Berryman) Indeed, we did look at that, my than having to go along the tunnel there. Lord, but not in the context of using them for ventilation. We looked at them in the context of 11438. LORD JAMES OF BLACKHEATH: You making sure we did not collide with anything. could leave the keys with Her Majesty and call to her to get the keys out! 11431. You said that you are not using it for (Mr Berryman) We have a case, my Lord. ventilation access, and I am saying would it not have provided a ready-made access route if you had 11439. LORD YOUNG OF NORWOOD sunk it deeper? The trees could have lived in peace. GREEN: We have a ton of these helpful suggestions! (Mr Berryman) We come back to the same problem, (Mr Berryman) I am sorry, my Lord, I did not my Lord, that any ventilation or, indeed, fire catch that. brigade access at some point has to come to the surface and it is finding a location at the surface 11440. We have many more of these helpful which is the fundamental problem. Once we get suggestions! underground we are out of sight, out of mind, so (Mr Berryman) I think the problem with keys to speak. generally is unless it is a standard key which every fireman is equipped with, they get to the gate and 11432. There are some very deep access points in it is, “Oh, we brought the wrong key”. I fear that and around that park. would be a risk. (Mr Berryman) I understand there are, my Lord, but I believe they are further south in the Hyde 11441. MS LIEVEN: Would it be fair, Mr Park area. Berryman, to suggest there have been quite extensive discussions with the Royal Parks about 11433. LORD JAMES OF BLACKHEATH:I this site and where it is needed? cannot comment on that. I know there are some (Mr Berryman) That would be a very mild very deep ones. understatement. Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11442. LORD YOUNG OF NORWOOD (Mr Berryman) It was 14 previously, Ms Lieven. GREEN: This is the least worst option. (Mr Berryman) This is the least worst option. 11452. LORD BROOKE OF ALVERTHORPE: It Discussions on this matter have gone on for is only six now instead of fourteen? literally years. 11453. LORD YOUNG OF NORWOOD 11443. LORD YOUNG OF NORWOOD GREEN: Whatever it is, you are going to replace GREEN: I can believe that. them? (Mr Berryman) Whatever it is, we will replace them 11444. BARONESS FOOKES: What will it look and strive to make the number the minimum we like, Mr Berryman, when it is ﬁnished? possibly can. (Mr Berryman) You will not know it is there, my Lady. The only thing you will see is there is an iron 11454. MS LIEVEN: Thank you very much, Mr railing along Bayswater Road and what will happen Berryman, if you stay there. is there will be a return around that space that you can see there and a liftable grille over that staircase, 11455. CHAIRMAN: Mr Walton, do you want to which you ﬁnd you do have a standard key for ask any questions? liftable grilles, and they will be able to lift it up and go down there. 11456. MR WALTON: Yes, I do.

11445. LORD BROOKE OF ALVERTHORPE: 11457. CHAIRMAN: Please, this is your And then build a tunnel through to the shaft. opportunity. I want to get as much of this cleared (Mr Berryman) This will be a cut and cover as we possibly can. You see the way in which it is structure. going and there is plenty of room for agreement. Would you like to put any concerns you have left 11446. MS LIEVEN: Just to be clear, the idea is to Mr Berryman. that the tunnel will be used by firemen coming in, it is not intended to be an evacuation tunnel? Cross-examined byMrWalton (Mr Berryman) No, it is not intended for evacuation other than for persons with restricted mobility. In 11458. MR WALTON: I think I have just one the normal run of things this would just be for question. May I say in response to your question firemen to run down the shaft and get to the site of that we are very happy with the way things are the incident. going. We had seen the email from Crossrail to Graham King and we accept that the possible 11447. BARONESS FOOKES: And above ground restructuring, as necessary, of the liaison group will where the shaft is? be decided at the next meeting and let us work with (Mr Berryman) Nothing, my Lady. It will be what we have got. I think I have only one question restored back to its present state. to Mr Berryman which is on the matter which has already been raised in the Committee. It is a 11448. CHAIRMAN: It is under the road, is it not? question of bringing design issues to the liaison (Mr Berryman) It is partly under the road, my Lord, committee at the appropriate time. Presumably, Mr but there is also a sand track called North Ride Berryman, it is Crossrail who will judge what the down here which, depending on the exact location, appropriate time is. it might be slightly under there (Indicating). We can (Mr Berryman) I think it would be, yes. I think that fiddle about with this location to minimise the is really the only way we can do it. number of trees that we take. 11459. Would you have any discussions, since you 11449. BARONESS FOOKES: What number of have a favourable relationship with Westminster trees are you contemplating taking? City Council, about what the appropriate time (Mr Berryman) I think it is about six at the moment, should be? but only one of them is a big one. (Mr Berryman) I think you should be aware, and you probably are already aware, that we have 11450. Are you going to put six back? extensive pre-application discussions with (Mr Berryman) Yes, my Lady, we are going to put Westminster. Those discussions are very much an back the number we fell. ongoing process which will go on right from now until the actual application is submitted. It is the 11451. MS LIEVEN: I think, Mr Berryman, in normal way that planning applications are made, your enthusiasm, my understanding was it was 14. and we will be following that approach as far as Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) possible. We will be in regular dialogue with (Mr Berryman) That is right. Westminster. I personally have a meeting with Mr King every month to discuss matters of issue, and 11465. MR WALTON: Thank you very much. important issues; they are simply working very well. That is all, at the moment.

11460. May I make it very clear that we are quite 11466. CHAIRMAN: Mr Walton, the paper you content that the channel of communication should have produced—Outstanding Issues: Synoptic be through Westminster, except if it comes to the Table—you are sure there is nothing else in there Schedule 7 procedure under the Bill, namely there you want to explore? is a person to whom application drawings should be sent directly. Thank you. Just one other point which 11467. MR WALTON: With the witness? I am a is we are also very pleased to hear just now about little bit confused because Ms Lieven said she was the undertaking that Departures Road should be, as going to call somebody else. a whole, managed as a single worksite. You implied that that means that the way that Departures Road 11468. MS LIEVEN: I am going to call Mr Taylor is laid out at the end of construction is a matter as well, the noise witness, just to deal with where you and Westminster can take the decisions. groundborne noise. Could I just ask you: how does Network Rail come into this, because it is a private road.? 11469. CHAIRMAN: Noise, yes, certainly, but (Mr Berryman) It is a private road, and, as I think nothing else? I pointed out, it belongs to Network Rail, and so obviously they would be involved in that decision- 11470. MR WALTON: Nothing else, no, my Lord. making process as well. The actual mechanism for managing reinstatement of these kinds of areas is 11471. BARONESS FOOKES: My Lord covered in an information paper—I cannot Chairman, can I ask Mr Berryman: obviously one remember the number oVhand, I am afraid. Both hopes that there will be co-operation and general the owner of the land and the local authority are mutual consent in relation to the road we have been required to agree with the proposals brought talking about. If it came to the crunch, who has got forward. the ﬁnal power? 22 11472. MS LIEVEN: Before Mr Berryman answers 11461. Both the owner of the land and the local that, can I have the information paper put up, my authority? Lady, because that explains it—D5. Then Mr (Mr Berryman) Yes. Berryman might answer by reference to the information paper. 11462. So it is subject to Network Rail’s agreement, (Mr Berryman) This is the policy that sets out the what can be done. way in which it is dealt with. I think 2.3 is the (Mr Berryman) It will be subject to Network Rail’s relevant clause: “The nominated undertaker will be agreement, yes. required to restore the land in accordance with a scheme agreed with the relevant planning authority . . . to be agreed within six months of the completion 11463. For instance, if there was a proposal (just to of the . . . work(s), and if not to be determined by take an example) that the existing motorcycle the appropriate Ministers”. It also says, up here: “ parking bay on Eastbourne Terrace, which is . . . the nominated undertaker will restore the site in obviously much-used by people who are travelling accordance with a scheme agreed with the owners to and from the station—there was not room for it of the land and the relevant planning authority”. So in Eastbourne Terrace but there would be room for it requires both of them to consent. it in Departures Road, that would be subject to the agreement of Network Rail, I suppose? 11473. BARONESS FOOKES: What happens if (Mr Berryman) That would be subject to the they do not agree? agreement of the Council and Network Rail. Of (Mr Berryman) My Lady, actually, usually they do. course, those bodies are used to working together to solve this kind of issue. 11474. That is the ﬁnal resort. (Mr Berryman) Yes. In this particular location there 11464. I have to leave it at that because it remains is a very long-standing, good working relationship the case, does it not, that the formal ownership of between the parties. the land at Departures Road will revert to Network 22 Rail once construction of Crossrail is complete. (LINEWD-IPD5-002) Crossrail Information Paper D5—Site Reinstatement Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11475. So, in practice, you think it will not be a required to select a standard track form that will problem? meet the groundborne noise target for as much of (Mr Berryman) In practice. At this particular site, the alignment as possible, so that special track form I do not think it will be a problem. is restricted to those cases where the standard track form cannot meet the objective set out in 11476. BARONESS FOOKES: Thank you. Information Paper D10. That, of course, means that the track is selected for the diYcult locations. At the 11477. MS LIEVEN: My Lady, I think, as is clear other locations where the tunnel is deeper or the from the end of 2.2 and 2.3, if there is no agreement trains are slower or for some reason the (and there is no reason to believe that there will not groundborne noise is less, they will be even better oV be agreement but if there is not) then the matter is than the targets in the Information Paper. Indeed, as determined by the appropriate Minister. So if there a consequence of that, in the area between was a terminal falling-out between Network Rail, Paddington Station and Hyde Park the contours for Westminster City Council and us, then ultimately standard buildings with a normal basement do not, the Secretary of State will determine. in any location, go above 29dBA L and, in fact, fall away to lower levels than thatmax as, you move 11478. CHAIRMAN: Is there machinery for that towards the boundary of Hyde Park. in the Bill? 11484. If we just put up the plan of the tunnels 11479. MS LIEVEN: Yes, my Lord. It is in coming out of Paddington23 Station, 003, first of all, Schedule 5 of the Bill. this is the station and the tracks coming out this way across the Hyde Park Estate, and then going in 11480. CHAIRMAN: I will take your word for it! Hyde Park around here. How confident can we be that the design we are proposing will suYce in 11481. MS LIEVEN: Which deals with possession respect of the groundborne noise environment in of the land. You will have to take Mr Mould’s word those residential areas? for it as he has pointed me to it. What I am not (Mr Thornely-Taylor) The first thing I will just absolutely sure about is whether or not Departures point to is the location, which is just here, where, as Road would fall within paragraph 2.2 or 2.3 of the a consequence of the request by the House of policy, but I do not think it matters because they Commons Select Committee on the Bill that floating both reach the same end result. That was the only slab should be provided wherever there was less issue I was going to deal with in re-examination. than 15 metres of cover between the tunnel and the Unless the Committee has anything else for Mr residential building, there is a short section there Berryman, I will call Mr Thornely-Taylor. which, although its predicted noise level is actually only 25 without floating slab, as a consequence of 11482. CHAIRMAN: Thank you, Mr Berryman, that Committee’s request, there will be a short yet again. section of floating slab. To answer the question in more detail, the process which has been agreed with The witness withdrew the London Borough of Camden, and is in the revised Information Paper D10, is one where the MrRupertThornely-Taylor, recalled design of the track form to be installed in the tunnel Examined byMsLieven takes account of uncertainty, makes predictions for all the buildings taking specific account of their 11483. MS LIEVEN: Mr Thornely-Taylor, you are foundations (we have heard that there is a building well-known to the Committee and, indeed, to in Sussex Square with pile foundations—that will be PRACT, so I will not reintroduce you. I just want taken into account) and the form of track support to go back, briefly, over the issues around selected, so that including the uncertainty allowance the predicted LA , the prime objective, is below groundborne noise, particularly at this location. I max,S should say to the Committee I apologise; I misled 35, as agreed with Camden, but certainly will not exceed 40 LA . you in opening when I said that there were no max,S properties that qualified for floating track slab here. First of all, Mr Taylor, can you just recap on the 11485. One of the points specifically raised by Mr design approach to providing an acceptable level of Zamit was that PRACT has made a request for out- groundborne noise? turn reports on the Jubilee Line Extension and the (Mr Thornely-Taylor) My Lords, as I explained on Channel Tunnel, and as we saw in the Day 1, the approach is set out in Information Paper correspondence that was shown this morning we D10, and the important feature of that is that the 23 nominated undertaker and his contractor will be Stops and Stands (WESTCC-6 04-033) Crossrail Ref: P76, Paddington Station—Existing Bus Routes, Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) said there were no reports because, as far as we were Cross-examined byMrWalton aware, there have been no complaints about groundborne noise. Mr Zamit wanted to know 11489. MR WALTON: Mr Taylor, can I just be whether or not there were any comparable locations clear that I think you said that standard track form in terms of either of those schemes going under would be used even if the predictions are residential properties at the kind of depths that we substantially less than 35 decibels? are talking about in the Paddington area. (Mr Thornely-Taylor) That is correct. The (Mr Thornely-Taylor) Yes, indeed, there are, my important feature of the way Information Paper Lord. The Jubilee Line Extension, as it passes D10 is structured is that we will not have the case through Bermondsey—into and out of Bermondsey where the contractor, to save money, will put in Station—and, also, at Canada Water, is quite some cheaper, more rigid, less well-performing track comparable. I do not know whether your Lordships just because in some location he is well improving remember, but when we were coming back from the upon the requirement. The standard track form will visit to the vent shaft we made a little detour be put in everywhere except where special track is actually to look at a vent shaft at the back of needed, as a result of which, where it is much better Bermondsey Station. You will have seen the than the targets in IPD10 it will be much better than residential locations there—quiet, back streets with the targets in IPD10. a relatively shallow depth to the tunnel of the Jubilee Line Extension. After the completion of the 11490. It is the case, is it not—I believe the Jubilee Line Extension project the previous Committee know this but I just wanted to be clear— Crossrail project, which I was also involved with, that there are measures in force that whoever did commission some work to do some validation operates the railway will be obliged to maintain the exercises on the Crossrail prediction model, and I track in such as way that the noise transmission is did in fact attempt to get some groundborne noise kept to whatever it starts with? measurements from the Bermondsey area. It was (Mr Thornely-Taylor) They will, and of course that not actually possible to measure anything useful in is a most important part of the whole process the residential areas either side of that station. because, should the track deteriorate and should there for any reason be want of maintenance, groundborne noise levels would go up; and that is 11486. CHAIRMAN: What sort of depth is the therefore one of the important parts of the process Jubilee Line there? of achieving the required low noise levels. (Mr Thornely-Taylor) It is approximately 20 metres, from memory, my Lord. 11491. In the areas where floating slab track is specified, either because of special needs or because 11487. MS LIEVEN: Finally, Mr Taylor, of the tunnels being less than 15 metres, there is a construction phase groundborne noise. Can you reference I think to the use of floating slab track or explain what arrangements we have agreed with the similar technology with the same eVect. I have local authorities in respect of that type of noise? probably got the words wrong, but there is certainly (Mr Thornely-Taylor) Yes. There are two aspects of a caveat there? that: one is the passage of the tunnel-boring (Mr Thornely-Taylor) There is indeed. This is in the machine, and I think it is generally accepted that it report of the House of Commons Select Committee will be clearly audible as it passes through at quite in asking for floating slab track where there is less a rapid rate of progress, and there will be short-term than 15 metres. However, they do provide, quite disturbance which will quickly pass. Then there is reasonably of course, for the possibility that an the installation of the temporary construction alternative better technology might be available that railway, and that is also subject to the provisions of is not called floating slab track and that would meet IPD10, although it will not be possible to have as their requirements just as well. sophisticated a method of track support for a temporary railway of that kind, and it is more likely 11492. MR WALTON: Is it not the case that in that in that case the predicted levels of groundborne the report of the Select Committee of the House of noise will come closer to the figures in the table in Commons at the end of paragraph 6 the last IPD10 for the alternative test of whether they are sentence is: “We therefore ask the Promoter only to greater than the existing groundborne noise from consider implementing floating slab track across the pre-existing underground railways. route if the track became cost-eVective”? In other words, they had said that they were minded to recommend floating slab track across the entire 11488. MS LIEVEN: Thank you. Those are all my route. Could I just ask you what the additional cost questions. of that would be? Processed: 14-08-2008 20:01:23 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11493. MS LIEVEN: My Lords, I think I am the residential properties only the cost would be less person to answer that because it is a project figure. than that? I do not know if it would be helpful if I read out (Mr Thornely-Taylor) Yes. The length would be the cost, because it is not entirely straightforward. shorter, but the maintenance consequences would be The last estimated marginal cost, that is the greater because there would be a greater additional cost to the project if floating slab track requirement for maintenance contractors to take was to be installed throughout the tunnels—given down diVerent components for installing in diVerent that a standard resilient track form would have to parts of the track, because clearly floating slab track be installed in any case, and taking account of the has its own design of bearings underneath the floating slab track already assumed to be provided concrete slab, has many more components, and the for the purposes of the Environmental Statement, rail support may or may not be the same as the rail which is 4.7 kilometres, as well as a further 2.8 support in the standard sections. The thing which kilometres of floating slab track required under the actually is undesirable is a highly complex system House of Commons Select Committee 15-metre with much more complex maintenance procedures. rule, that is what Mr Taylor has just been referring to, and the decisions around the Soho area—is £220 11501. If the objective were to have floating slab million outturn cost. I read it because it has all been track or an enhanced track form underneath very carefully set out so we give your Lordships an predominantly residential areas there would be accurate figure. substantial sections, such a where the tunnels run under Hyde Park or where they run under the River 11494. LORD YOUNG OF NORWOOD Thames where there would be no requirement for it? GREEN: That is additional? (Mr Thornely-Taylor) I am not sure they are substantial. The River Thames is certainly not a 11495. MS LIEVEN: That is additional. very long length of tunnel. Hyde Park is not a particularly long length of tunnel. I do not think 11496. CHAIRMAN: Is there an additional cost there would be a very great reduction in the total for maintenance as well? length of floating slab track.

11497. MS LIEVEN: Yes, there is, my Lord, but 11502. It is true, is it not, in the area under the we have not quantified that. Commons decision, which Crossrail have accepted, where floating slab track would be put in, the end 11498. MR WALTON: I do not know who to put of Spring Street nearest to Paddington Station just the question to; it will have to be to Mr Thornely- three houses, there would be an overlap of 50 Taylor. I have the Government’s response to the metres, or something of that order? Crossrail Committee, page 25, paragraph 21, which (Mr Thornely-Taylor) Yes. says, “Consequently the true marginal cost of providing floating slab track in all of the Crossrail 11503. It is also true, is it not, that those houses running tunnels would be between £53m and £62m”. happen to be right on top of the Circle Line? (Mr Thornely-Taylor) They do, that is quite correct. 11499. MS LIEVEN: My Lord, again I rise because this is an issue that is really engineering 11504. So that it is not particularly useful to spend rather than Mr Taylor’s area. The costs have gone money on floating slab track there. It would be up through a combination of increased engineering better, would it not, to spend the money on costs, so real additional costs, but also the fact that enhancing the track further down the line? the costs we were using in the House of Commons (Mr Thornely-Taylor) It is certainly better to devote were all based on the first quarter 2002 costs, and design eVort to achieving the most eYcient standard we are now using outturn costs. The real figure has track form so that for all except the diYcult cases gone up as we have done more work on the subject, acceptable groundborne noise levels will be achieved but there is also an increase simply because the cost throughout without going to the complexity of a base has changed. floating slab system.

11500. MR WALTON: I must rest on that. In 11505. MR WALTON: Thank you, Mr other words, the true marginal cost is now Thornely-Taylor. substantially higher than that which was contained in the Government’s response of October 2007 to Examined byTheCommittee the House of Commons Select Committee. Mr Thornely-Taylor, it would be true I suppose that if 11506. LORD YOUNG OF NORWOOD the ﬂoating slab track was put under predominantly GREEN: I just wanted to ensure I have got the right Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) perspective on this. Given our demonstration visit MrDavidAnderson, recalled to the Chancery Court Hotel, given we know about Examined byMrLieven the groundborne noise with the standard form of track, the fact that it is below residential housing 11512. MS LIEVEN: Mr Anderson, I know you does not mean that they are going to get some have given evidence to this Committee before on inferior result, as far as I understand it. What you traYc and transport issues, so I will not introduce were telling us was that if you take into account the you again. I just want to ask you about that one depth of the tunnel, the quality of the standard form issue of taxis at Paddington. First of all, obviously of track, and provided your rail maintenance is no prediction is perfect and we are talking about ten undertaken, put it this way, given my experience of years in the future but, on the basis of the the Chancery Court Hotel a deaf man would wish assessments that we have carried out so far, what to hear it? do we predict will be the eVect on total taxi numbers (Mr Thornely-Taylor) You are absolutely right, my of the Crossrail project? Lord, As I explained in the teach-in on day one, by (Mr Anderson) The Crossrail project itself will result the standards applied to infrastructure projects in in a slight reduction in taxi use for reasons already general, airports and highways, the noise impact alluded to in proceedings earlier today. Crossrail without ﬂoating track slab for residential areas is will take passengers closer to their destinations in well below generally accepted standards for the central London so, therefore, our expectation is that environmental impact of major infrastructure that will reduce the number of people alighting at schemes. Paddington and jumping into a cab.

11513. Have the taxi numbers and the provision on 11507. MS LIEVEN: My Lord, that is all the the Red Star deck been agreed with BAA? evidence from Mr Taylor. (Mr Anderson) Yes, they have.

The witness withdrew 11514. Just for those members of the Committee who do not know, do BAA have a particular interest in taxis at Paddington? 11508. MS LIEVEN: My Lord, I do have Mr (Mr Anderson) They do, because clearly one of the Anderson available to answer questions about taxis major users of taxi services at Paddington are if the Committee want to hear them, or if Mr passengers alighting from the Heathrow Express Walton has any questions. Equally I do not want to service. prolong a warm afternoon merely for the excitement of hearing about taxis at Paddington if the 11515. When you reached your predicted levels of Committee— taxis at Paddington did you take into account Terminal 5? (Mr Anderson) Yes, we did. 11509. CHAIRMAN: It would be a pity if he came for nothing. Is there anything you would like to ask 24 11516. The only other issue about taxis is looking him, Mr Walton? at how they will be laid out on the new deck. I am looking for the plan of the deck—006. Could you 11510. MR WALTON: No, my Lord. Our point is explain to us how it is intended that the new deck simply, we hoped, as the detailed design progresses, will work? that the possibility of improving the situation about (Mr Anderson) We can see the station here and the the taxi rank should be examined; and, as Mr Zamit existing Departures Road on this side where the said, an important ingredient there is a good taxis currently are situated. In future taxis would forecast. I was in the forecast business and there approach the taxi ramp from the east, from the were not very good ones a lot of the time. A forecast Edgware Road/Westway area, coming down the should be made about the impact of Crossrail and new ramp onto the deck. They could queue here for of other developments upon the demand for taxis at a while; if they have passengers they will drop oV the time. At the moment we just say, “It’s the same here; and they will pick up on this side. Then the as at present”. That is, frankly, not quite good intention is they would return by the same route and enough. We hope that something a little more at the top here it would be right-turn only. Taxis sophisticated can be given. would exit back in the direction they have approached. That is how we expect the deck to work.

11511. CHAIRMAN: Do you want to ask him 24 about it? (WESTCC-6 04-006) Committee Ref: A61, Paddington Station—Taxi Provision Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11517. In terms of getting taxis away from the information-sharing. It is true to say that the residential area of Bayswater and the Hyde Park consultation and the working with local groups and Estate is the Crossrail proposal an improvement on the Council has so far worked extremely well in the the existing situation? Paddington area with the Paddington liaison group. (Mr Anderson) Clearly it is because, at the moment, We have every reason to believe that that will taxis will use the Departures Road and exit down continue. It is very eVectively chaired by Mr King. here—so they are much more likely to use the area The precise details of how it works, what sub-groups to the south and the west; whereas here they would it has and so on are really not matters for this directed back towards the city centre. Committee, but the reason I put up the letter after lunch was just to show that those are things which 11518. MS LIEVEN: Thank you, that is all, Mr are being actively discussed which Mr King very Anderson. If you could just stay there. much has a handle on and where he, as the Chairman, and the participants of the group feel Cross-examined byMrWalton that there is a need to have sub-groups, smaller groups, groups at diVerent times, that is all 11519. MR WALTON: Mr Anderson, you do something which can clearly be dealt with through appreciate, I suppose, that the concern we are the existing process. raising is not about the operation of pick-up and set-down at the new facility, but the problem of the 11527. As far as formal consultation on applications ranking capacity and the overflow from that is concerned, Schedule 7 ensures that that takes capacity. The predictions which you have made, the place with the Council on surface-level parts of the only ones which I am familiar with, are those made Bill and the Council will undoubtedly consult with for the Terminal 5 inquiry which were forecasts for PRACT on such Schedule 7 applications. So far as 2016 at a time when the Terminal was expected to sub-surface works are concerned, as Mr Berryman open in 2008. Have there been further predictions, has explained, they are really not appropriate for or more predictions for later years of what is going consultation with local residents’ groups because to happen? they are almost entirely driven by a combination of (Mr Anderson) I believe the predictions are for a engineering, safety and passenger forecast numbers, later year than 2008. Clearly the forecast year we use so they are really matters which are much more is 2016, as set out in the Environmental Statement. appropriately dealt with by the Promoter and in discussion with LUL and, where appropriate, the 11520. You are sticking with 2016? councils. (Mr Anderson) That is the principal forecast year we use, yes. 11528. So far as information before applications are made, which is perhaps really PRACT’s concern, 11521. The same as for the Terminal 5 inquiry, in that they know things at a formative stage so that other words? they can influence design, it is clear from Mr (Mr Anderson) Correct. Berryman’s evidence that that will be done to an appropriate degree and at an appropriate time 11522. MR WALTON: Thank you. I have no through the forum of the liaison group, so, in my further questions. submission, to an appropriate degree, those concerns are taken on board and can be dealt with. 11523. MS LIEVEN: I have no further questions, my Lord. 11529. I would just reiterate the point I made before lunch which is that what we do for Paddington we 11524. CHAIRMAN: Thank you very much, Mr have to be prepared to do for other areas as well, Anderson. so it is very important to bear in mind that this is a huge project with large numbers of residents’ The witness withdrew groups of very diVerent natures up and down the project, and we have to bear all their needs in mind 11525. CHAIRMAN: Ms Lieven, is there rather than having a one-size-fits-all kind of anything left? approach laid down.

11526. MS LIEVEN: Very little, my Lord, and 11530. Turning then to the substance incredibly perhaps I can do just a very short closing to pull quickly, taxis, in my submission, what has come out together the points from our point of view. I think today very, very clearly is that, thanks to Crossrail, it is fair to say that the main point of the PRACT there is going to be an enormous improvement in Petition has been around consultation and taxi provision at Paddington. We are taking taxis Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Paddington Residents Active Concern on Transport (PRACT) out of Departures Road, we are thereby helping the 11535. CHAIRMAN: Thank you, Ms Lieven. residential areas to the south and the west to an Now, Mr Walton, is there anything that you want enormous extent, we are providing a much better us to do and, if so, what? circulation system and we are likely, through Crossrail, to diminish the overall number of taxis, although of course we cannot control what happens 11536. MR WALTON: My Lord, I will be brief. on the London transport scene more generally. In my submission, what came out very clearly from Mr 11537. CHAIRMAN: We may or may not be able Zamit’s evidence was that really he wants Crossrail to do it, but you ask. to solve a whole series of problems that have got nothing to do with Crossrail. We cannot stop people dropping oV in Spring Street, it has got nothing to 11538. MR WALTON: Yes, I understand. On the do with us. Westminster might be able to stop it, consultation and involvement, we take a great deal although they probably cannot. Equally, we cannot of comfort from what has emerged today and I do stop large numbers of taxis coming on a Sunday not think we are asking you to do anything, my afternoon to Paddington and stacking up on the Lord, because we feel that, in the light of what has bridge, but what we can do is provide a quality emerged in evidence today, we can build on the circulation system with enough taxi space for BAA, liaison committee which already exists with the who are the principal commercial body concerned, possibility of flexibly modifying its structure. As Mr to believe it is appropriate and Westminster City Berryman said, it is a question of horses for courses Council to believe it is appropriate. and the question of what is an appropriate time for consultation is one where we hope that Crossrail, despite the pressures they may be under, will bring 11531. The other issues raised by PRACT, Brewers the consultation forward so that it is sooner rather Court and the canopy, we have agreed to construct than later. Nor on taxis obviously is there anything a canopy to noise standards agreed with which you can do, and I entirely accept that. We Westminster that will protect the residents of take no points on the Congestion Charge Zone Brewers Court to an acceptable degree during the boundary or Brewers Court. Brewers Court is, so phase of use of that area for a service deck, so that far as we know, satisfactory, but we rest on the has been agreed with Westminster who have been design of the canopy being such that, to the very concerned about the issue and, in my satisfaction of Westminster City Council, it will submission, the Committee can entirely rely on that. achieve the eVect of protecting the residents from the 24-hour noise. My having not seen, as you, my 11532. Similarly, Eastbourne Terrace and Lords, have not seen, the actual wording of the Departures Road, we have got to a stage where undertaking, I can only rest on my confidence that Westminster are content with where the scheme has Westminster City Council will have done a good job got to and the important agreement that Departures on this matter. On the Congestion Charge Zone Road will be treated as a worksite and, therefore, boundary, I take no point either because we await Westminster will have a significant level of control what happens to the Congestion Charge generally and influence over what goes back there. with the new Mayor and the question of TfL being prepared to consult with the City Council and with 11533. Finally, so far as groundborne noise is stakeholders, which I hope includes ourselves, at an concerned, you have heard Mr Thornely-Taylor. early stage is one which has caused problems in the The main point that came out of the evidence, to past, but it may not cause so many problems in my understanding, is that this may be a location the future. where the 15 metre rule recommended by the House of Commons does not make an enormous amount 11539. We are left, therefore, with our two main of sense, but that is no reason to extend it for a concerns which is the impact of the narrowing of further period where there is very little, if any, Eastbourne Terrace at the end of construction. We benefit and where the overall cost of putting FST accept that it will include, or have as its corollary, on the whole tunnel is really very large. a widening of Departures Road, the likelihood being that the demand for space on Eastbourne 11534. Then the only other issue is the CCZ Terrace will be considerable and that demand for boundary, but we touched on that this morning and, space on Departures Road will be less. We are very if the Committee are minded to put something in happy that it is being treated as a worksite and that their report, then that is a matter for the Committee, Crossrail expect that they and Westminster City but there is nothing more we can do. So, my Lords, Council will be able to influence the way that it is that is our case on this Petition. used. Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11540. CHAIRMAN: Well, they will be in charge 11548. MR WALTON: Thank you, my Lord. of it, will they not, because it is going to be treated as being an overground work? 11549. CHAIRMAN: It may not be that we are going to be able to do very much to help you, but I think possibly the result of today’s hearing will in 11541. MR WALTON: Yes, my Lord. itself be beneﬁcial.

11550. MR WALTON: Indeed, my Lord. 11542. CHAIRMAN: Therefore, it comes under Schedule 7. They are not only the planning 11551. CHAIRMAN: I think all of us would like authority, but planning authorities take into to thank you very much indeed and Mr Zamit as account highway matters. well. Mr Mould, do you have something?

11552. MR MOULD: Yes, my Lord. 11543. MR WALTON: Westminster is responsible for highway matters overall, but this will remain a— 11553. CHAIRMAN: Yes, I have heard about this. You tell everybody else. 11544. CHAIRMAN: But, as a planning authority, they have to take account of highway matters at the 11554. MR MOULD: I shall not trouble you for same time. very long, but perhaps I can25 just put up on the screen something which, I fear, will in itself be almost completely incomprehensible, but I ought to 11545. MR WALTON: Indeed ,my Lord, yes. have it up just for the record. There was evidence given on there being good working relations with Network Rail. Given that 11555. CHAIRMAN: It is completely Network Rail own Departures Road, I think we incomprehensible, yes. have to rest on that as I do not think that you can do anything about it. 11556. MR MOULD: I was under-selling it by saying “almost”! My Lord, as we have approached what, I think, we all believe to be the final week of 11546. Then we are left with groundborne noise on your Lordships’ Committee’s sittings, we need to trains and tunnels, and you will be hearing about mention one or two amendments to the Bill which this tomorrow, so I do not really want to take up we regard as necessary in order to make some minor more of your time on it, but there was reference in corrections and also to provide, under clause 16, a the House of Commons Report to possible slightly extended power to the Secretary of State in improvements in technology and we just hope that relation to the heritage controls which are the improvements in technology, as they come disapplied and modified for the purposes of the along, will be embodied in the standard track form, construction of Crossrail. Just to remind members given that the depth of the tunnels under this quiet of the Committee, if you will cast your minds back residential area is relatively low. We have to accept to the Spitalfields sittings all those many weeks ago, that it is the outcome of the predictions, assuming I think early in the afternoon one day I sought to that they are correct and I think we are broadly explain to you how the usual controls over works reassured about the fact that the predictions turned aVecting listed buildings and buildings in out to be correct, so we have to accept that it is the conservation areas, which would be subject to outcome of the predictions which matters, not the regulation by the local planning authority, have particular way in which they are arrived at, so there been disapplied and modified in the case of the I think I would say, looking at the interests of the Crossrail scheme and an extra statutory scheme people who are concerned, that, if there are embracing English Heritage, the local planning improvements in the technology which can be authority and the owners of such buildings has been brought into use without any great increase in cost, set in place based on the model which has worked they should be made use of. On that, I rest my case, successfully for the purposes of the Channel Tunnel my Lord. Rail Link Bill. It is set out, as your Lordships will recall, in Information Paper B1, I think section 4 of that paper which explains the regime that is in place, 11547. CHAIRMAN: Mr Walton, thank you for a and indeed one of the things we have been talking model presentation on behalf of a residents’ group. to Mr King about in recent months is the settling I think it has been very helpful to have these things 25 discussed. 008 to -009) Proposed Bill amendments in lieu of filled Bill (SCN-20080506- Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 of the terms of a number of heritage deeds which 11561. MR MOULD: That is the usual process. are the mechanism where by those extra statutory processes are established, and one of the things we 11562. CHAIRMAN: We are? have achieved with the City Council, an important stakeholder in that respect, is the agreements of the 11563. MR MOULD: Yes. Perhaps, whilst you are terms of a number of those deeds as regards reading that, could I explain there is already a Paddington and other important Listed buildings. process, essentially a similar process, under Clauses 10 and 13 of the Bill in relation to ordinary planning controls because, as your Lordships will appreciate, 11557. What this amendment that you have before the eVects of Clause 10 is to grant planning you is designed to achieve is to enable the Secretary permission for the Crossrail scheme. Clause 13 of State by order to restore ordinary listed building provides a similar power to the Secretary of State control and conservation area consent controls to by order to provide for the switching back on of the local planning authorities under the ordinary ordinary planning consent following completion of provisions of the listed building legislation following the Crossrail works so that any works of the completion of the Crossrail construction works. maintenance or alteration which thereafter require a To use the jargon, for the period of construction grant of planning permission, that permission would those ordinary controls would be switched oV and need to be sought from the local planning authority replaced by the bespoke regime I have just reminded in the usual way. EVectively we have spotted an your Lordships of. These provisions would enable omission. The same approach should apply in the ordinary controls to be switched back on again relation to the listed building and other following the completion of the works. It would be conservation area consents. The purpose of this for the Secretary of State to judge the appropriate Clause is to make good that omission and ensure moment at which to restore ordinary regulatory the same process applies the across the board. controls for local planning authorities. I would expect that would take place broadly at the time 11564. CHAIRMAN: I have not been through all when the major project works have been the scheduled works in Schedule 6 where there are substantially completed. I suppose, to give a changes. practical flavour, thereafter there will no doubt be works of maintenance and alteration once the 11565. MR MOULD: Shall I explain. That is the project is up and running which may require listed second category of minor amendments that are building consent or conservation area consent to be before you. I have just explained the first. The one obtained and if these powers which we propose to I have just explained is eVectively the changes to include within Clause 16 were to be enacted and Clause 16. If I can turn to the other matters which then subsequently to be deployed by the Secretary are those that arise under Schedule 1, Schedule 3 of State in the way I have just explained, then clearly and Schedule 5. What you have there is eVectively works of that kind would need to be submitted for a limited number of amendments to correct minor the necessary consents to the local planning errors in those schedules. At the conclusion of the authorities concerned. That in a nutshell is what this Select Committee proceedings in the other place the addition to Clause 16 is about. Perhaps the final Bill was re-printed to incorporate the several point, just to set it in context— hundred detailed amendments comprised in four additional provisions and two papers of amendments which have been agreed to join the 11558. CHAIRMAN: That would be explained, no course of the Bill passage through that Select doubt, by Lord Bassam or whoever is the minister Committee process. Since then the Promoter picked when these amendments come to be moved? up a few further corrections and those are the corrections which are listed in the paper of amendments which are before you, but I can assure the Committee that none of the amendments alters 11559. MR MOULD: I would have thought that any of the scheduled works or gives the Promoter would be right. Is that correct? No. (Mr Mould took power to acquire or use any additional land. To give instructions) The purpose of this is to move them an example, the first two amendments to Schedule now so they may be incorporated into the Bill in 1 set out on the sheets in front of you are conjunction with your Committee’s report. consequential on the deletion of a work, work 1/2 which was made in the first House, that is to say the deletion of that work was carried out in the first 11560. CHAIRMAN: We are not meant to make House. As the description of the termination point these amendments, are we? We are? of works 1/3a and b made reference to work number Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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1.2, a deleted work, clearly the description needed 11577. MR MOULD: You are be absolutely right to be adjusted to make good that error. The other and, I suspect, there is a typographical error there amendments include the deletion of lines 25 to 30 and what I will do is ask— on page 93 of the Bill and that is to remove three streets in Newham from the list of streets which may 11578. CHAIRMAN: Would you like to go back be temporarily stocked up as work 2/8 in the over this list again and just check everything once original Bill. The reason why that is important is more? because that work was deleted in AP3 and several land parcels are deleted as they no longer exist on 11579. MR MOULD: By all means. the revised plans following amendments made as part of the additional provisions. 11580. CHAIRMAN: All this is highly complex. 11566. CHAIRMAN: This is the Schedule 3 one? 11581. MR MOULD: Yes, we will do that. 11567. MR MOULD: These are Schedule 1, Schedule 3 and Schedule 5 changes, yes. They are 11582. CHAIRMAN: We are going to look awfully very much minor consequential amendments to silly if we take out 258 and cross it out. reﬂect a change. 11583. MR MOULD: I could see that would not 11568. CHAIRMAN: I am sure they are, but in look well. We will have another look at it and try Schedule 3 page 79, 20 and 9(30) why are you and come back tomorrow. leaving out the London Borough of Tower Hamlets when it is not there in the ﬁrst place and is in the 11584. CHAIRMAN: You have explained what it second place? is all about, you need not do it again but I do not think I am happy with this list. 11569. MR MOULD: I think in relation to that, line 20, column 1. 11585. MR MOULD: No. My principal concern in explaining that was clearly to explain the function 11570. CHAIRMAN: You are putting it in there? of the new provisions of Clause 16 which are the most substantial aspect of this. 11571. MR MOULD: Yes, and in the other reference we are leaving it out. 11586. CHAIRMAN: I am sure my colleagues and I are perfectly happy with that, but if we are going 11572. CHAIRMAN: So as from line 20 onwards to make the amendments we need to make sure the down to when you come to Greenwich it is all in parliamentary counsel has got it absolutely right. Tower Hamlets and you do not need to say Tower Hamlets again in 30. 11587. MR MOULD: We will check that. I do apologise for the fact that was wrong. Can I say, 11573. MR MOULD: That is right, that is the while I am on my feet, returning to the convention. You will see in the line in question, line announcements you made at the beginning of this 20, you will remember Fulbourne Street is in the afternoon’s session, I am told we are hoping to be immediate vicinity of Whitechapel Station. It is the able to provide a response to that tomorrow location for the new station. morning.

11574. CHAIRMAN: Let me ask you one more 11588. CHAIRMAN: Good. I think that is thing about the Schedule 5 amendment which is on probably the only piece of progress we are going to page 98, line 4. I am afraid I do not see 258. be able to make in the case of the rail freight petition without treading on the toes of the ORR. 11575. MR MOULD: Column 2. Bear with me a moment. No, I think I will have to own up to that 11589. MR MOULD: We will respond back on and say we are not quite sure. I think there must an that. incorrect reference there so what I will do— 11590. CHAIRMAN: The studios are not coming? 11576. CHAIRMAN: There must be, so it is no use asking us to make a whole lot of amendments if 11591. MR MOULD: The studios are not coming there is some doubt about their correctness. so today’s business, I think, is now complete. Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11592. CHAIRMAN: No, it is not. It is very far 11595. MR MOULD: Yes. We resume again I from it. We have Spitalfields back again at half think in that respect at half past five. past five. 11596. CHAIRMAN: At 5.30 and it is going to have to be time limited because we have it booked 11593. MR MOULD: I think I must have had 5.30 to 7.30 and I do not think we better go on something for lunch today. I do apologise, yes, of beyond on that. course, we have by no means completed. We have Mr Carpenter and Woodseer and Hanbury Street. 11597. MR MOULD: I do not think there would be much appetite for going on beyond that. 11594. LORD YOUNG OF NORWOOD GREEN: It was a good attempt on your part to 11598. CHAIRMAN: Very well. We will adjourn leave early. until 5.30pm.

The Committee adjourned at 4.00pm until 5.30pm

Ordered that Counsel and Parties be called in.

The following Petition against the Bill was read:

The Petition of Woodseer and Hanbury Residents Association.

MsBalKhela appeared on behalf of the Petitioner.

MrGuyCarpenter appeared as Agent.

11599. CHAIRMAN: Mr Elvin, I do not know 11605. CHAIRMAN: That is just ﬁne. whether you know which aspect of the Spitalﬁelds Petitions this is dealing with. I know they very 11606. MR CARPENTER: So I will pass over to her sensibly divided it up. to take over.

11600. MR ELVIN: Indeed. I am not sure what Mr 11607. CHAIRMAN: Ms Khela, we have heard Carpenter now is proposing to deal with. I opened about the various problems of Spitalﬁelds, so which generally for the Spitalﬁelds Petitions before Easter one is it you want to address us on today? and certainly I have got nothing I want to add at this stage. 11608. MS KHELA: I would like to address two points. One is consultation and the other is another legal point which is relevant to our Association which 11601. CHAIRMAN: Are you dealing with this? is diVerent from that of Matthew Horton.

11602. MR ELVIN: I am dealing with it. We have 11609. CHAIRMAN: I did not get the second one. had several files of documentation including, I think by accident, Mr Carpenter’s Spanish homework was 11610. MS KHELA: The second one is a legal point included in the middle of it, which caused us a little which is diVerent from that of Matthew Horton. bit of puzzlement this morning, but “Guy’s homework” in the top right-hand corner gave the 11611. CHAIRMAN: I am afraid you will have to game away. Other than that, I am not sure precisely explain that. What do you want to do? Do you want what Mr Carpenter is dealing with. If I need to add to explain it to start with and then call witnesses, or anything to what I have said in previous weeks, I will what? do so at the end if that is convenient. 11612. MS KHELA: I think I would just like to 11603. CHAIRMAN: Well, Mr Carpenter, you start, to be honest. must tell me what it is that you wish to raise today, or are you not going to do it yourself, is Ms Khela going 11613. CHAIRMAN: Okay. to do it? 11614. MS KHELA: Okay. I am going to start with 11604. MR CARPENTER: Ms Khela is going to do consultation. On October 2003 began the first round our presentation today. of consultation. It was the first time anybody in the Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association area had heard of Crossrail, but only one of two 11628. MS KHELA: I do appreciate that. On that groups in Spitalfields were aware of the public point, I will answer you directly. There was a awareness consultation that took place. The two statutory duty to consult with the public on the recipients were invited to the public information routes. That did not occur. centre, there was no mention of Hanbury Street shaft or any other impact in the area, no information 11629. CHAIRMAN: This is the EIA point, is it? centres in the area. The nearest one was at Guildhall by St Paul’s and Wodeham Gardens further east. 11630. MS KHELA: This is an EIA point, if you Wodeham Gardens is not in the A-Z, most locals did like, yes, the adequacy of the consultation that has not know where it was. The leaflet circulated was taken place in Spitalfields over alternative route only in English and not available in any local alignments. language. 11631. CHAIRMAN: Supposing we agreed with 11615. On 29 January, Crossrail reported— you, what happens? 11616. CHAIRMAN: 29 January of what year? 11632. MS KHELA: Well, I think that would be for you to determine, not myself. 11617. MS KHELA: Sorry? 11633. CHAIRMAN: It would be what? 11618. CHAIRMAN: What year? 11634. MS KHELA: I said that surely would be for 11619. MS KHELA: 2004. yourself to determine, not myself.

11620. CHAIRMAN: The sooner you can get us up- 11635. CHAIRMAN: We are always open to to-date the better. suggestions.

11621. MS KHELA: Yes, I am trying. 11636. MS KHELA: What I would suggest is that there is an examination of the alternatives and the 11622. CHAIRMAN: Good. veracity of the information that has been presented by the Promoter to date is actually tested for the 11623. MS KHELA: Crossrail reported to the first time. Department for Transport on the outcome of the consultation, published reports in August 2004 11637. CHAIRMAN: You go on for the moment, indicating only 148 visitors to Wodeham Gardens. but, remember, in the end what we want to know is On 30 March the Spitalfields Society were invited to what do you want us to do. meet with Crossrail. Gordon Torp Petersen and Tom Mantey attended a private meeting where they said: “We are currently working on an Environmental 11638. MS KHELA: I think I have kind of said Impact Assessment. Translation of information is that really. not available yet. Translations in other languages will only be available on request”. 11639. LORD BROOKE OF ALVERTHORPE:I am struggling to see where consultation arises in the 11624. I am going to now just basically start giving Petition. you examples. The Promoter has given the impression that the people of Spitalfields are alone 11640. MS KHELA: If you let me carry on, I think and that they are the problem— I am about to explain.

11625. CHAIRMAN: Ms Khela, can I just interrupt 11641. LORD BROOKE OF ALVERTHORPE: you for a moment. At this stage of the proceedings, My second question was, was it raised in the what we want to know is what do you want us to do. Commons, in the Other Place?

11626. MS KHELA: Well, what I would like— 11642. MS KHELA: Not by ourselves, no, but we are raising it today. 11627. CHAIRMAN: You can go back into history for a bit, but there is a limit to the amount of time we 11643. MR ELVIN: It was raised, my Lord, at can spend on that, I am sure you appreciate. length. Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11644. MS KHELA: No, it was not, not by the commented that the detail for Whitechapel was WHRA. We submitted a consultation report, considerable and asked could he be given some detail whether it was taken into consideration is another of the Hanbury Street shaft. Mr Carpenter spoke to matter because we did not discuss it. We had a a consultant by the name of Dick Dunmore. Mr barrister representing us by the name of Justine Dunmore said he could not provide details about the Thornton. I would like to continue, if I may. Hanbury Street shaft other than what was on the board. Could we see what was actually on the board? 11645. CHAIRMAN: Yes, please go on. 11649. Just as a short example, the leaflet at the 11646. MS KHELA: The Promoter has given the exhibition failed to show any of the following: there impression that the people of Spitalfields are alone was consultation on the route options in Spitalfields; and that they are the problem, but we hope this Select the leaflet implied that the Hanbury Street site was a Committee will keep an open mind and consider the shaft, not a tunnel boring machine site, which is in evidence we are about to present. Some of this is even miniature right after the information on the supported by statements from MPs, Assembly ventilation shaft; two tiny paragraphs referred to a Members and ministers who said the consultation in TBM and spoil site at Pedley Street; any information Spitalfields was flawed and excluded the community or indication of the opportunity to be consulted on from being consulted on the route. We will provide the works, the alignment, what was later to become evidence of this. the fixed position of Whitechapel Station, was not there. The poster, in short, did not do any of these 11647. The Spitalfields community was excluded things. from round one consultation and no information was exhibited on alternative route options at the 11650. Mr Carpenter was told that there were no exhibition. The Spitalfields community were leaflets to take away. This was odd as there was a prevented from being consulted as a community, shortage of Hanbury Street leaflets even though it information was scant and public meetings by the was later discovered that he was only one of two Promoter left the community to have separate people who received a leaflet. Mr Carpenter helpfully meetings and share information ad hoc. No informed the Crossrail representatives that many consultation was ever suggested for Whitechapel groups in Spitalfields knew nothing about the Station. The community asked to see evidence why Hanbury Street shaft. Mr Carpenter oVered to give viable alternative routes were not being considered, the names of local groups, but was told to fill in a as is required by law, so the Promoter could consider feedback form. He did, but received nothing26 from options which avoided the densely populated and Crossrail and so the WHRA complained. historic part of Spitalfields. The Spitalfields community were told such options did not exist. We 11651. Could we have Exhibit 12, please? I would later found that, yes, they did. The information that like the Committee to contrast the information that was provided was piecemeal, involving a paper chase was given for the Hanbury Street shaft with what is and did not seek to make it easy to build a picture of on the next leaflet which is entitled “Crossrail Line 1: the proposals in Spitalfields or, indeed, Whitechapel. Update Spring 2003”. It says: “Following an The Promoter has had ample opportunity to rectify announcement by the Government of the preferred these errors but has chosen not to do so. Crossrail Line 1 route, an extensive public consultation will take place with people and 11648. I will give you an example of the consultation organisations aVected by the scheme . . . Crossrail carried out by the Promoter. The WHRA Secretary, staV will be able to explain proposals and answer Guy Carpenter, who is sat beside me, received a questions. The public information centre will be leaflet on 31 October 2003, the final day of the advertised locally and we will send invitations to exhibition on the route options in Whitechapel. Mr everyone on our mailing list”. Carpenter has lived in Spitalfields for many years but did not know of the location described in 11652. The WHRA then complained to the Crossrail Whitechapel. The address on the leaflet said, Referee. The WHRA received a letter on 16 “Whitechapel Community Room, Wodeham December from Crossrail following that complaint. Gardens” and could not even be found on the London The letter confirmed the round one leaflets had been A-Z, and did not mention anything about supplied after 16 December. The initial consultation Spitalfields. Crossrail members of staV said they had on the routes proposed ran between 8 September run out of leaflets on the Hanbury Street shaft even 2003 until 19 January. As part of this a series of though the consultation was running between seven information centres had been held between 27 and nine and Mr Carpenter arrived at 7.15, less than 26 15 minutes after the opening. Mr Carpenter (SCN-20080506-010) Committee Ref: A62, Crossrail Consultation Document 2003 Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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October and 3 December. The Crossrail letter also become unaVordable and we were told to wait for the said: “We are also consulting with local authorities details of the impacts. and stakeholder groups such as the transport user groups and local residents’ associations. These 11656. A further letter was sent to the Referee by the responses . . . will be included in our report on the WHRA on 16 January. On 29 January an initial round of consultation to the Department at the acknowledgement was received from the Referee. end of January 2004. A second round of information This was the same day as Crossrail reported to the centres will go ahead once Crossrail is given the go- DfT on the outcome of the round one consultation. ahead to apply for powers. This round of consultation will provide further details of proposals, explain any modifications made and seek views on 11657. On 10 February, the Referee writes to us with the proposed scheme”. a heading misleadingly entitled “Crossrail Consultation Hanbury Street Ventilation Shaft”. It was, in fact, an intermediate tunnelling site. The 11653. The WHRA sent a letter dated 16 January Referee says: “The project will, by that time, have 2003 outlining their extensive concerns about the first complied with the requirements not only of the Code stage of consultations. A letter from the Crossrail of Construction Practice but also Transport for Referee on 22 December says: “The Crossrail London’s Consultation Toolkit and the Cabinet proposals have so far been the subject of a public OYce’s Revised Code of Practice on Consultation”. awareness campaign (8-29 September 2003). The The Referee says that the WHRA’s written response purpose of round one consultations was to introduce has been included, but the letter makes no mention of the route proposals, display preliminary project the following: the WHRA response was to the designs, explain the works and seek initial unequal treatment when comparing the detail of comments.” I would like you to recall that there were information provided to Whitechapel, so it was no route proposals in Spitalfields shown on the hardly a response to details it did not actually have; leaflets. “Key to this process was the programme for the Spitalfields community had been excluded from public information centres. These were intended to round one consultations; the WHRA was reluctant display route-wide and site-specific design to have a meeting with Crossrail without other information about the project with qualified staV groups as it did not believe that this was the best way available to explain the proposals and answer to understand the full impacts and various other questions”. The Referee makes no reference to the groups had specialties, which could have allowed for following: people and groups in Spitalfields had been more informative discussions. This request was excluded from consultation on the route, which denied without any reasonable explanation. would later be presented by Mr Montague in 2004; reveals the principal issue raised at Whitechapel was in fact Vallance Gardens, as it was in fact in 11658. Kay Jordan was the only person in the Whitechapel, for which proposals were later community who understood the proposals changed; blames the hand-delivery of the leaflets on technically from the double-sided one-page leaflet a postal strike, which had been going on for some she received from Guy Carpenter. In a letter dated 17 considerable time and, therefore, it would be January, she says: “The use of a major part of . . . .” reasonable to assume that those leaflets should have arrived earlier. Instead, Mr Kennerley refers to the 11659. CHAIRMAN: Which year is it now? fact that details will be provided in the second round suggesting that the community can be informed 11660. MS KHELA: 2004, I am afraid, but we are about the works rather than consulted. moving on very shortly.

11654. At this stage the WHRA and the community 11661. CHAIRMAN: Good. did not know the precise details of the alignment or the extent of the works. This emerged later. We have 11662. MS KHELA: “The use of a major part of extensive documentation showing attempts to engage Hanbury Street as the tunnel cutting head worksite with the Promoter so as to involve and inform the for the largest civil engineering project in Europe and wider community. This would be too much for this the permanent location of a giant tunnel mechanical Select Committee but we think it would be suitable ventilation extract fan as well as a secondary spoil for an inquiry. tunnel, emerging in Allen Gardens on to a ramp connected with main rail lines out of Liverpool 11655. From then on, the communities were told two Street, will be catastrophic to the livelihoods of local things by Crossrail: that the proposals could not be people both during and after your construction changed, including the alignment, otherwise it would process”. Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11663. The local MP, Oona King, said on 27 May: “I 11669. The WHRA wrote to Crossrail, the Crossrail understand that prior to the Crossrail public Referee, the Department for Transport, MEP Jean consultation the Council secured changes to the route Lambert, MPs and the Council advising them that no to minimise disturbance to parts of the Borough . . . consultation had occurred on the route, the Tower Hamlets Council have told me that they are intermediate tunnel boring site, the spoil site, the collating information on the project and their plan is ventilation shaft, the emergency shaft or, indeed, to consult local people when the Hybrid Bill is Whitechapel Station, and pointed out the inadequacy submitted to Parliament”. On 28 October she writes of the consultation and the reasons why they felt the again: “At this point Crossrail representatives were Referee’s adjudication showed bias and was refusing to speak at community meetings. The Local unacceptable. It was made clear that the Referee had Authority has made clear that Crossrail is provided no remedy for the failure to consult. No responsible for its own consultation”. solution was oVered into reopening the flawed consultation on the route and works in Spitalfields. 11664. On 25 May 2004, a letter was received from the Mayor which implies that Crossrail are more 11670. On 16 June, the Department for Transport concerned about the consultation than even the wrote: “Ministers have not yet issued a new Referee. The Mayor says: “I understand that you safeguarding direction, as the Department have referred your complaint to the Crossrail Referee understands that Crossrail is reviewing a possible concerning serious flaws in round one consultation change to its preferred route alignment in the and that he has not shared your view that there has Spitalfields area. Ministers have decided not to issue been inappropriate consultation on this matter. a safeguarding direction in respect of this area before However, it is true that a number of organisations of Crossrail has reached firm conclusions about its which Crossrail was unaware when round one preferred route alignment. I understand that consultations began were not contacted at the time. I Crossrail are in close contact with the Spitalfields know that the Crossrail team are grateful . . . ” Society about such a possible change to its proposed alignment. As regards the Crossrail Referee, I am sorry you are not satisfied with his adjudication. ‘If 11665. A letter to the Referee from Patricia Jones members of the public believe that they have not dated 4 June outlines the continuing concerns about received the information provided by this Code, they the inadequacy of the consultation. She says: “I should be able to apply to an independent person understand that in support of safeguarding who has the authority to investigate complaints. The requirements Crossrail must submit an aYdavit that Promoter would be expected to allow the appointed the consultation procedure has been adequately person (or referee) access to all relevant documents. followed”. He would assess the validity of the complaint and send a report of his findings to the parties’. Ministers would be concerned if the Crossrail Referee reported 11666. A further letter was sent by the WHRA to that Crossrail had failed to consult properly. Jean Lambert on 21 June. The Promoter’s response Parliament might be expected to take such a report that she received had given a false impression about into account, should a Hybrid Bill be presented to the consultation, the intervention site and the kind of Parliament.” works that would be taking place in Spitalfields.

11671. On 16 June, Donald Stark of the DfT says: “ 11667. Various exchanges took place with the . . . ministers have not yet issued a new safeguarding Referee in the interim period, but the WHRA now direction . . . ” The route was safeguarded on 20 July believe the Referee was biased. Indeed, his responses 2004, at which point Donald Stark says on 27 August show that no action was taken to ensure that 2004: “You may be interested to know that round consultation on the route took place. The WHRA one and round two consultations are not formal complained that it believed the Referee was not stages under the Code of Practice”. providing any remedy for the flawed consultation. The Society continued to correspond and I attach a letter sent by Pat Jones of the Spitalfields Society to 11672. The London Assembly Transport Committee the Referee which outlines some of the community’s Scrutiny Manager, Paul Watling, became aware of concerns. these consultation problems and invited groups who had complained of inadequate consultation to submit questions and comment on the consultation 11668. Crossrail held an internal inquiry into failures at a panel meeting on 22 July 2004. We will attach a according to Crossrail’s Gordon Torp Petersen. The summary of the concerns raised by various groups findings have never been made available in public. across the capital, one of which was the WHRA. Processed: 14-08-2008 20:01:24 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11673. The Transport Committee heard how the when you place the Bill before Parliament, you will communities, particularly those in the densely place alongside that information about the populated area of Spitalfields, had been excluded. additional costs of alternative alignments so that The Crossrail Referee, Professor Tony Kennerley, there can be a proper debate about these issues? If the appeared as one of the uninvited members of the cost of the peace of mind of the Spitalfields’residents audience. Here is an extract from that transcript: “I is an extra £5 million or £100 million or £2 million am Tony Kennerley, the Crossrail Referee, which is a then perhaps Parliament should be aware of that so sort of Ombudsman that has appeals referred to him. it could make an informed decision.” Bernard Strictly my concern is the dissemination of Gambrill replied: “You have that assurance. From information, as Bernard Gambrill has outlined in the my experience of the Channel Tunnel Rail Link Code of Practice . . . As Bernard Gambrill has Hybrid Bill I can tell you that is exactly the material pointed out, much of the detail that has been which has to be put forward, although I have to say requested is not yet available . . . The other comment that cost is only one of the issues we have to take into we have made on the basis of the representations to account in deciding the alternatives or the option that us has been that possibly they might have tried to is eventually chosen.” communicate directly by writing to the people whose houses would be tunnelled under, whereas they only 11675. The WHRA was encouraged by the Promoter wrote to those whose houses were going to be aVected and various authorities to wait to hear about the on the surface. However, I do not think these things consultation on these route options that they were negate the whole principle of the consultation process promised would occur. The Transport Select . . . What is now going to take place is the absorption Committee, unfortunately, did not report on the of those concerns and all the conditions aVecting the consultation flaws. Instead, the Scrutiny Manager, railway will be looked at again in much more detail. Paul Watling, wrote: “The purpose of the meeting I know personally that in the last few months many was intended to give the Committee an update on the of the engineers have been working on alternatives to current position of the Crossrail project in terms of things like the Hanbury Street site. In terms of the progress on the assessment of its value and details of the preliminary stage of why a particular aVordability. The recent round of public route was chosen, or why the Hanbury site was consultation on route options, issues arising from the chosen as a worksite and so on, there were technical objections received and next steps for the project . . . reasons given for those cases”. Mr Kennerley makes I believe Members of the Committee gained no reference to the fact that the complaint was the assurances from Crossrail when the Crossrail Bill is failure to reopen consultation on alternative routes placed before Parliament there will be additional or the failure to provide details about the information on costs of alternative alignments so assumptions lying behind what was then to become there can be a proper debate about such issues and the Bill alignment route. Parliament is aware of these when it makes a decision on the Bill. This is confirmed by the transcript . . . The 11674. John Biggs, the local Assembly Member for Committee I believe were then content to see the the area said: “I broadly agree with Peter Hulme second round of the consultation process progress Cross’s deposition. I think the consultation has been and then an opportunity for further scrutiny would flawed, and certainly in the distant past as a local be given to Parliament when the Bill was submitted councillor I played a role in helping to shoot down and when all interests will have the opportunity to the previous Crossrail proposal because its lobby Parliament.” consultation in Spitalfields was so deeply flawed and it caused enormous damage to the area. My question 11676. A letter dated 16 July 2004 provides an is a very simple one. Elsewhere in my constituency, in example of how the consultation was also flawed in Poplar, there were concerns and following those Richmond which mentions that they received the concerns the alignment was changed. As I help of Jenny Tonge and Susan Kramer, a TfL board understand it, it was changed because there were member. The Crossrail questions complain about the good engineering reasons for doing so; that is to say, consultation even though they had been aware of the it suited Crossrail’s interest to change the route, and, initial consultation and they say the public coincidentally, it met some of the concerns on consultation process is “incomplete and inadequate”. housing estates in Poplar. In Spitalfields, there are alternative alignments, which could be followed 11677. On 15 September 2004 Darren Johnson asks which would meet some of the residents’ concerns, about the tunnel portal and he received the following but as I understand it, they would carry a cost and responses orally. The Mayor begins with a reference they would not align with the priorities and objectives to fire safety regulations for underground railways of Crossrail. Do you undertake . . . ” this was to and goes on to say: “ . . . without the use of an Crossrail, “ . . . that during the consultation and intermediate site, the programme would extend by Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association two years. Extending the programme this way would thing to do if you have been engaged in consultation make the project very diYcult to fund and most since 2003 to produce it just before the Commons’ probably not viable.” Darren Johnson asks, “Will petition hearing, but what they say is very interesting: you intervene as Chair of TfL, a stakeholder in “Consultation was conducted in accordance with the Crossrail, to look at alternative solutions and OYce of the Deputy Prime Minister’s Code of properly consider the full impact on residential Practice on the Dissemination of Information during neighbourhoods and also the impact on ethnic Major Infrastructure Projects and the Transport for minorities in the area?” The Mayor said: “I can say London Consultation Toolkit”. This is removed now yes to that and people can respond by wondering if from the Petition responses we have received. there is going to be another solution. The people Apparently they now only comply with the Code. building Crossrail have done their best to come up The reason for that may be because the TfL toolkit with the best solution. There is not another option . . . says: “If you are seeking to inform any decisions if we do not have this alignment as I said we would which have not yet been taken and if you are inviting be talking about another two years to build Crossrail. comments, views and responses”, it goes on to say: The debt servicing of that would probably push it “never ask for comments, views or responses if all over the cost benefit analysis.” you want to do is explain what is going to happen anyway and if you have no intention of changing 11678. But the reality was, and subsequently anything . . . use a reliable distribution company to confirmed to be, that the Mayor’s statements were get leaflets to local residents . . . ” and under “Top incorrect as they were statements without any Tips”, it says: “Visit the area to28 find popular and evidential basis. The Mayor did not intervene and accessible venues and draft question and answer rejected consideration of alternative routes even sheets to help staV answer key questions . . . Allocate though the WHRA attended a meeting with the time and staV to handle questions”. The reasons that Mayor on 22 June despite having sight of a report most people give for not consulting is, “lack of produced by engineers Ove Arup which questioned money, political consensus and legal powers” which the Promoter’s assumptions, the assumptions behind they say impose more delays on projects than the choices for the route alignments, removing the listening to the public. On its legal obligations, it tunnel site would push the project over the edge, the states, “Consultation must be undertaken at a time need for the Hanbury Street shaft. They did not when proposals are still at a formative stage”. believe the tunnel alignment would add another two Finally, it says: “It is important that TfL has not years to the time to build Crossrail, and they did not closed its mind to alternatives”. Crossrail never believe the information on the impacts and geological consulted properly on alternative routes. They never assessments, they required proof. Indeed, as we can consulted on the need or location of Whitechapel see, a revised tunnel strategy removed the time for the Station and never had any intention of changing the 27 works and the impacts. route tunnel alignment through Spitalfields. Instead, we have a Bill being presented to Parliament where the Promoter is seeking to disapply the consultation 11679. Could we have 32, please? These are some of policy of TfL despite the fact that it is joint Promoter the savings from removing the tunnelling site which of the Bill and it is to be handed over to them after the would have made the project unviable and would Bill gains Royal Assent. have pushed the project over the edge. This is the sort of consultation that we had to deal with. 11681. CHAIRMAN: Ms Khela, you have now spent a quarter of the time which is allotted for this 11680. Here we are, MPs, ministers and the Mayor Petition talking about consultation in the past, long, are saying the consultation is flawed, but Professor long before it ever got to this House. What is it you Tony Kennerley does not and never once want us to do? recommends reopening round one consultation on the route. Neither in his dissemination capacity does the Referee inform the community that Crossrail 11682. MS KHELA: Okay. I am about to tell you have submitted an outcome of the consultation to the why it is relevant. DfT. So the question is, how can we determine if the consultation was adequate. For this, we again will 11683. CHAIRMAN: No. It may be relevant, but I turn to the Promoter’s own documents. The still want to know what you want us to do. Promoter produced a report entitled “Consultation Activities in the Spitalfields Area” prior to the Spitalfields Commons’ petition hearing. An odd 11684. MS KHELA: If you will give me one second

27 I might be able to tell you. Shaft Layout Options, Mott MacDonald, June 2006 (SCN- 28 20080506-011) Toolkit (SCN-20080506-013) Committee Ref: A62, Cost Estimate, Crossrail—Hanbury Street Committee Ref: A62, Transport for London Consultation Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11685. CHAIRMAN: Good. indication of the main reasons for this choice, taking into account the environmental eVects’. The 11686. MS KHELA: I am going to read to you what Environmental Statement and the Supplementary our counsel suggested when he gave us legal advice on ES3 fail to address the original alignment B which this issue. At paragraph six of the legal advice from appears to have been a ‘main alternative’. The Richard Harwood of 39 Essex Street chambers, he assessment of the SES3 alternative does not lead to a says: “The Environmental Statement does not, as far consulting on deep foundations and does not provide as I have been able to tell, consider alternative the data or analysis to show why the shaft site at alignments in the Spitalfields area. The Hanbury Street was considered preferable to the Supplementary Environmental Statement 3 options considered on the southern alignment”. The considers such alignments briefly at paragraphs 3.5.9 WHRA sought to— to 3.5.12 on page 43 as amended in the SES3 Erratum. The statement identifies an alignment 11690. CHAIRMAN: Just a minute. We have which would comply with the minimum radius of already ruled on the adequacy of compliance with the curvature required for the project. It says that such European Community and, indeed, the transposition an alignment would be beneath relatively modern into British law of the Environmental Impact buildings with deep foundations and that alternative Assessment Directive and we have said that it is shaft sites compared less favourably than the adequate. We have ruled on that, so you cannot Hanbury Street site. The alternative considered reopen it. (shown at RTS C8(iv)) has a diVerent alignment to that in the 2001/2002 reports, and seems to be under 11691. MS KHELA: You have ruled on a point that more piled buildings and nearer sensitive sites than Matthew Horton raised, but I am not agreeing with the earlier southern alignment.” that point, my point is very diVerent.

11687. Paragraph seven: “I have also seen a letter 11692. CHAIRMAN: Well, I do not know what it is from Crossrail to the Residents’ Association dated 14 in that case. June 2006 which says that a southern alignment was rejected because alignment standards would be 11693. MS KHELA: Well, my point is not an compromised and the tunnels would need to be objective test that I am talking about. My question is deeper and longer to avoid foundations. Concern was that there was an alternative and the reasons given by expressed at settlement to ‘significant and valuable the Promoter that it conflicts with the Heron Tower oYce or residential buildings’. The letter also referred is completely wrong. to dewatering during works and disruption during the construction period which appear to assume that 11694. CHAIRMAN: In that case, are you talking construction will take place from a shaft on that about alignments? alignment, as was then proposed at Hanbury Street. The letter’s explanation does not sit comfortably with 11695. MS KHELA: We are talking about the Mott MacDonald report, which gave a single and alignments, but you cannot have evidence being diVerent reason for not pursuing a southern presented in this committee room saying that an alignment, or the latter Third Supplementary option was dismissed and rejected as not being viable Environmental Statement. The letter is not in any for the single reason that it conflicted with a building event part of the Environmental Statement and when it does not actually conflict with that building. cannot discharge the obligations on the Promoter under the Environmental Impact Assessment 11696. CHAIRMAN: We have also ruled on Directive.” alignments. There is nothing we can do about it you know. 11688. Paragraph eight: “I am asked a variety of questions on the southern alignment: (a) is the 11697. MS KHELA: I think there is something you information provided by the Promoter on can do about it. If you will let me finish I think I might alternatives in the Crossrail Environmental be able to explain what you can do about it. Statement and Supplementary Environmental Statement suYcient to fulfil the requirements of EC 11698. CHAIRMAN: You get up to 2008. Directive 85/337/EC (the EIA Directive as amended)?” 11699. MS KHELA: I am going to summarise. I have the evidence here. As no-one seems to be 11689. Paragraph nine: “The EIA Directive requires interested in me presenting it all, I am a bit stuck with the developer to provide ‘an outline of the main presenting my summary. If anybody wants any alternatives studied by the developer and an points clarified, I can come back to those. Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11700. There has been an injustice as the people of If it is not on the alignment within the Bill we are not Spitalfields have been prejudiced. The people of empowered to make any recommendation about it. Spitalfields have a right to be consulted but have been denied information and consultation on a viable 11702. MS KHELA: Well, I have one issue that may route alternative as per paragraph 6050. The change your mind. A letter dated 7 June 2005 by existence of a viable route option which avoids the Bindmans solicitors— Spitalfields conservation and densely populated area was withheld from the community during the 11703. CHAIRMAN: By who? consultation period. The dismissal of Options B and C was led by seeking to avoid conflict with potential 11704. MS KHELA: Bindmans solicitors. development and we can see from the 2002 report, a Council report, that the main concerns of the 11705. CHAIRMAN: I do not think anything will Promoter, TfL and the Council are to maximise the make us change our mind because it is Standing development potential using Crossrail and not Orders of this House. alignment purposes. The existence of Option B was not even made known to Parliament prior to the Second Reading, so how it was able to form a 11706. MS KHELA: The Second Reading summary decision on the Second Reading I do not know. produced by the DfT read— Evidence from Arup, a letter from Whitby Bird, said that a viable southern route option existed and the 11707. CHAIRMAN: But this is in the House of Committee has heard evidence from Michael Commons. Schabas saying that it would avoid the densely populated conservation area of Spitalfields and that 11708. MS KHELA: This is at the Second Reading. alignment is feasible, which is very diVerent from Prior to the Second Reading a summary was what the Promoter had been saying. The argument produced which— presented by counsel for the Promoter said there is no duty to consider alternatives. This, Mr Schabas 11709. CHAIRMAN: In the House of Commons. pointed out to this Committee, is not good practice and was not followed on the Jubilee Line Extension 11710. MS KHELA: Yes. Which reads as follows— and the Channel Tunnel Rail Link to which they compare Crossrail. Indeed, this would have 11711. CHAIRMAN: The House of Commons had profound implications for airport expansion. Option powers to depart from the line in the Bill and they did B was abandoned when the Heron Tower did not to a certain extent by additional provisions. even have planning permission. This was granted in 2002 after the event, so to speak. The single reason, 11712. MS KHELA: You quite rightly said that they therefore, identified by the Promoter and his counsel had erred. The counsel for the Promoter had advised can be proven wholly unreliable, who says in a letter the Committee to do that and they took that advice that Mr Berryman confirms Option B conflicts with and did not seek any independent advice, which we the Heron Tower. It does not. The reasons for believe was necessary on Option B as that option was dismissing Option B are not valid now and were not presented to Parliament and neither was it certainly not valid in 2001. Information about presented to the Spitalfields community who had not Option B was not made available. The DfT and the been consulted and informed. Promoter have been made aware of this for some considerable time and have taken no action to 11713. CHAIRMAN: Even if it is presented to us remedy this matter. Option B, we contend, was a now, again, at least for the second time, we cannot do main alternative. anything about it.

11701. CHAIRMAN: Now look, Ms Khela, we 11714. MS KHELA: It can be reported to the have had a tremendous discussion about Option B. House. Do you realise that we have ruled that we cannot recommend anything about an alignment for 11715. CHAIRMAN: I think it is already reported Crossrail which does not fall within the limits of to the House in terms of the ruling that we have given. deviation in the Bill. It is Standing Orders. It is not a matter of consultation and it is not a matter of 11716. MS KHELA: I think it is important to be argument; it is Standing Orders. We cannot do it. I reported to the House for the fact that it has an error have already ruled on this. Whether it goes through that we would like to be tested for its veracity. We do this, that or the other does not make any diVerence. not believe it conﬂicts with the Heron Tower. Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11717. CHAIRMAN: I do not know, but we cannot thing that we can do is to make a recommendation do anything about it. about something which is within the powers of the Select Committee. The things that you have been 11718. MS KHELA: I think we are in a position talking about so far are not within the powers of the where we are faced with a Bill and a Tower Hamlets Select Committee. So I ask you again, what is it you Council report dated 2002 will give us some want us to do? indication of what led to the decisions for that route alignment. “The improvement of transport 11720. MS KHELA: I would like some infrastructure in East London is seen as key to the consideration to the fact of what Alistair Darling said delivery of the Mayor’s vision for growth as set out on 19 July 2005. He said: “Our instruction goes in his London Plan and Tower Hamlets Council has further, in that it suggests the route. I repeat, previously echoed this urgent need in its formal however, that if someone came along and said that response to the draft London Plan. Canary Wharf the stations or the termini should be diVerent, the Group have made an important contribution to Select Committee may well want to consider that. It securing a commitment to Crossrail stations in would be up to the Committee.” Tower Hamlets by researching the engineering and fundability of route options and vigorously 11721. CHAIRMAN: But that is exactly what we campaigning for stations in Tower Hamlets. The core cannot do. route has also earned the support of Thames Gateway Partnership. The contribution to 11722. MS KHELA: But if there has been an error regeneration that the scheme now oVers contrasts and information presented to the previous House— remarkably with the lack of beneﬁt to this area oVered by the original scheme, which was defeated in 11723. CHAIRMAN: This was the Commons 1994. In its response to the draft London Plan, the Committee. The Commons Committee could do it. Council has stressed the critical importance of Crossrail to supporting the scale of growth envisaged 11724. MS KHELA: They chose not to on the basis for East London. The Council stressed the need for of the advice from counsel over there. We did suggest major infrastructure projects to be brought forward that they sought independent legal advice and they urgently in order that public transport networks can did not. provide eVective access to core development areas. In order to deliver this vision, a joint venture company, 11725. CHAIRMAN: Who is “they”? Cross London Rail Links, has been established by the SRA to the Mayor’s executive arm, Transport for 11726. MS KHELA: The Commons Committee. London, to take forward Crossrail Lines 1 and 2. The use of subways is not encouraged due to personal 11727. CHAIRMAN: I do not think the Commons safety issues . . . The Council will need to consider the Select Committee could get independent legal--- provision of resources for the development of a Never mind. The point is that there are diVerent master plan for the Whitechapel area . . . this powers for the Commons Select Committee from suggestion has received a positive response from those which we possess. The Commons Select Crossrail who would need to provide detailed input Committee were able, as they did, to introduce to the master planning process. The station additional provisions which then reopens the development itself could oVer new direct access to petitioning process and they could consider those. areas north of Whitechapel Road, a new bus This House, as the second House, cannot do that. interchange . . . .” That is the end of it, we cannot do it. So whatever Mr Darling may have said, or what anybody else may 11719. CHAIRMAN: Ms Khela, I am going to stop have said, we cannot change the principle of the Bill. you. Will you please tell us what you want us to do at this stage? We have now got to the end of the hearing 11728. MS KHELA: An important reason why of the Select Committee petitions, or at least we will Whitechapel Station is located where it is is that the have by the end of this week. We will then produce a Council’s own property interests in the area include report which goes back to the House. There are going Swanlea School, Whitechapel Sports Centre, to be some amendments, but not anything that will be Whitechapel Ideas Store and Vallance Road of any interest to you, and it will then go back to the Gardens. Signiﬁcant investment has been made in all Public Bill proceedings and there will be some of these in recent years. amendments by the Department for Transport in relation to railway clauses. It will then have a Third 11729. CHAIRMAN: Look, it is no use trying to tell Reading and will go back to the Commons for the us about some ulterior motive. The Whitechapel amendments to be considered. At this stage the only Station is in the Bill and that is it. Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11730. MS KHELA: But we are happy for it to be in issue. If there is proof of such accusations we expect the Bill as long as it is not in the position that it is in it to be presented very quickly to this Committee. at the moment. We believe an amendment on the Whatever evidence, we expect at least a response basis of incorrect information provided to the from Mr Carpenter when he goes away in respect of previous House is a legitimate expectation from the accusations being made and the evidence he has. Petitioners. We expect that very, very quickly. We will then deal with it as a Committee in private and then we will 11731. CHAIRMAN: It is not going to enable us to decide what to do on that. These are most serious change the Standing Orders of this House. matters and, as I say, we do not expect it to hold up the work of this Committee at all and we do not 11732. MS KHELA: Well, in that case that puts us expect it to reopen the whole of this inquiry either. in a very diYcult position because we have done all in This is a bill which Parliament wants and we intend our power. That information was not presented to us to deliver this bill for Parliament, and as quickly as and the maps were not presented to us until 24 possible, however we have to be aware that what has January and our hearing took place on 31 January. been presented to the Committee is of a serious nature and we want that dealt with before we proceed 11733. CHAIRMAN: Which year are we in now? with this witness”.

11734. MS KHELA: That was in 2007. I would have 11737. We did not want to give evidence in private told you that had I gone through my whole but with our main witness who was rightfully advised presentation. We were not given those. That is that there was no reason to give evidence on a matter despite the fact that Bindmans had put in freedom of of public interest in private. So lawyers advised information request on 7 June asking for all Michael Schabas that he had no need to give evidence information on alternative alignments. That bundle in private where decisions would also be made in of 15 documents provided by the Promoter had not private and, therefore, we were not allowed to come included the LUL report that showed the maps of back on this issue. We now do have the evidence on Options A, B and C. At that time we did not have the Heron Tower. time to make up the maps to see where the route was going. The maps were later transposed by Kay 11738. CHAIRMAN: I am sorry, we can do nothing Jordan and we discovered that it did not aVect the about what you were allowed to do in the House of Heron Tower. So we presented those arguments to Commons, you are now in a diVerent House. You the Committee in a letter because they had initially must address yourself to what we can do in this Select prevented us from presenting our arguments on this Committee. basis. As you know, our hearing was suspended because basically Mr Schabas had made a statement, 11739. MS KHELA: Well, we have been advised but the LUL report that we had subsequently that you could suggest an amendment be made on the conﬁrmed Mr Schabas’ statement. The brief issued basis of our presentation because it is serious. by Keith Berryman in that report says: “The safeguarded designed alignment should be utilised as 11740. CHAIRMAN: What sort of amendment? far as and including Liverpool Street Station but should be optimised further east.” At that hearing, 11741. MS KHELA: Well, it could be a Transport where Michael— and Works Act changing the alignment. After all, it was permitted for the Woolwich Station. 11735. CHAIRMAN: Is this in the House of Commons? 11742. CHAIRMAN: It is a change of the alignment, is it? 11736. MS KHELA: Yes, I am afraid in the House of Commons. Michael Schabas made this statement, 11743. MS KHELA: It will be a minor change to the which he had previously made and no-one had alignment so that— objected to it even though the Promoter, counsel, Keith Berryman had been in the room and the same Committee had also been present. He said: “In 2001 11744. CHAIRMAN: Is it a change of the I met Mr Berryman and said, ‘You need to look at alignment? alternatives’ and he said, ‘No, we are going to build the safeguarded scheme’.” The hearing was 11745. MS KHELA: Yes, a modiﬁcation. suspended. The Chairman did say: “The accusations which are levelled are serious, we take them very 11746. CHAIRMAN: Is it within the limits of seriously. We do not intend to be very long on this deviation in the Bill? Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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11747. MS KHELA: No. 11757. MS KHELA: I recall your ruling where you referred to the fact that the option had been 11748. CHAIRMAN: In that case we have no presented. The option that had been presented, and powers to make any such recommendation. you were correct an option had been presented, was Option D, that was not Option B. So could we have a ruling on Option B? 11749. MS KHELA: Even though the consultation on the present route alignment can be shown to be flawed? 11758. CHAIRMAN: No, I corrected the ruling so as to remove any doubt about that. 11750. CHAIRMAN: It does not make any diVerence whether there is or is not consultation, it is 11759. MS KHELA: Yes, but the point I am trying the powers of this House under the Standing Orders to make is that Option B was a main alternative. of Parliament. 11760. CHAIRMAN: Well, it may or may not have been but we have already ruled on this. 11751. MS KHELA: We believe that the democratic process should allow us to present our evidence and have some form of remedy, which we have been 11761. MR ELVIN: My Lords, can I remind the denied because the Department for Transport, which Committee at paragraph 5562 on Day 14 you is responsible for promoting this Bill, asked us to wait actually ruled that Option B was not a main to receive this information until we appeared before alternative as well as the general point. both Select Committees. We have done that and we are now being told that is wrong, we cannot make any 11762. CHAIRMAN: I had forgotten that, but I am changes. We are not responsible for the provision of glad to be reminded. Well, there you are, Ms Khela. late information, the Promoter is. We need a remedy. What do you want us to do? The Spitalfieds area is a sensitive area as admitted in the Promoter’s own documents. 11763. MS KHELA: Well, I want this Committee to protect the environs of the Spitalfields community 11752. CHAIRMAN: There are very strict with a change to the alignment on the basis that we constraints within which this Select Committee can believe that it would be the right and proper thing to work and they are laid down by Standing Orders of do, and there must be a mechanism by which your the House. We did not invent them, they are there in Lordship, who has a legal background, will be able to the Standing Orders. I have been telling you what do that. they are and we have to stick to them. 11764. CHAIRMAN: There is no mechanism 11753. MS KHELA: On the basis that you did hear whereby this Committee can do any such thing. representations from Matthew Horton on a point that I am not raising, I am saying Option B is a main 11765. MS KHELA: Well, then I believe that it alternative. That is what I am saying. I am not asking should go back to Government who then should for an objective test. I was told by Sarah Price that respond to this matter because they have encouraged your ruling was on Matthew Horton’s rather obscure us to wait until these proceedings. point. My point is not obscure at all. I am very clear on the fact that Option B was studied, albeit briefly, 11766. CHAIRMAN: That is another matter. It is and the information that was supplied about it not for us to send things back to Government. It is for cannot be relied upon, but it was studied. us to report to the whole House on what we think about the petitions that have been placed before us. 11754. CHAIRMAN: It may or may not have been Anybody can take things to Government: this, studied, but it is an EIA point and we have already happily, is a country where you can do that, but it is ruled on— not for us to take things to Government, it is for us to report back to the House on the hearings before 11755. MS KHELA: But it is not in the the Select Committee. Environmental Statement. 11767. MS KHELA: One thing I would like on the 11756. CHAIRMAN: We have already ruled on record. compliance with the statutory instrument which transposes into English law the requirements of the 11768. CHAIRMAN: Yes, please go on. I do not EIA Directives. We have ruled on it. want to harass you at all. Please find your papers. Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11769. MS KHELA: The following letter was sent 11788. BARONESS FOOKES: That is what they on behalf of Angela Broome of 14 Deal Street who are called. lives in Spitalﬁelds. It was basically referring to the Strategic Environment Assessment Directive. “The 11789. MR ELVIN: That is what they are called, Environmental Assessment is an important . . . ” yes.

11770. CHAIRMAN: Sorry, who wrote this? 11790. MS KHELA: They wrote to the Secretary of State to ask why Crossrail was not being 11771. MS KHELA: This letter was written by implemented according to the requirements of the Public Interest Lawyers. Strategic Environmental Assessment. A letter dated 17 November from DfT says: “The Strategic 11772. CHAIRMAN: Who are they? Environmental Assessment does not apply because Crossrail is a project, not a plan or programme”. 11773. MS KHELA: They are a ﬁrm of lawyers. Reference to the policy aspect of it is omitted. On 1 December 2004, Public Interest Lawyers asked for a 11774. CHAIRMAN: Are we going to be shown full assessment of alternative routes between the letter? Liverpool Street and Whitechapel.” In the letter of 7 January the DfT fails to deal with the full assessment

11775. MS KHELA: Oh yes, here it is. It29 will be of alternative routes. On 29 February 2008 the DfT, given to you. as you know, refused to supply information to the WHRA under the Freedom of Information Act on 11776. CHAIRMAN: Put it up on the screen. What the basis that the tunnel route alignment is date is this? Government policy as the Bill gives consent.

11777. MS KHELA: That will be 10 November, 11791. CHAIRMAN: Are you referring to the 2004. correspondence that appears in Command Paper 7250? 11778. LORD JAMES OF BLACKHEATH: Can we see the letterhead, please? 11792. MS KHELA: I have no idea what that is, I am afraid. 11779. CHAIRMAN: I am very sorry, we are none the wiser. Who wrote this? 11793. CHAIRMAN: It is a long series of correspondence between the Association which you 11780. MS KHELA: Public Interest Lawyers. represent, through Mr Carpenter, and the Department for Transport. It also lists all the 11781. CHAIRMAN: Yes, but I do not know who documents that you have been given. they are. 11794. MS KHELA: Yes. 11782. MS KHELA: A ﬁrm of lawyers. Unfortunately, I am not able to— 11795. CHAIRMAN: You are not aware of this?

11783. MR ELVIN: My Lord, I am familiar with 11796. MS KHELA: I am not, I am afraid, no. I them. They are a firm of solicitors who deal with a lot would just like to point out one letter was omitted of environmental, judicial review and similar from the Second Reading and that letter was the challenges. They are quite well-known. letter sent from Bindmans solicitors on 7 June. In response to that letter the Department for Transport 11784. CHAIRMAN: They are a firm of solicitors? wrote, and in paragraph three they say: “The Department has collated responses to the 11785. MR ELVIN: They are a firm of solicitors, Environmental Statement in a report, which has been yes. published as a command paper and presented to the House of Commons so as to be available to Members 11786. BARONESS FOOKES: Name? in time for them to consider it in advance of the Second Reading of the Bill. You are correct that 11787. MR ELVIN: Public Interest Lawyers, that is Third Reading is an additional opportunity to revisit their name. the principle of the Bill and the Department will seek

29 to facilitate debate at the time . . . The Secretary of Lawyers to the Secretary of State for Transport, 10 November State has tabled a motion to report to the House for 2004 (SCN-20080506-015) its consideration any issue relating to the Committee Ref: A62, Correspondence from Public Interest Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association environmental impact of the railway transport 11809. CHAIRMAN: Sorry, go on. system for which this Bill provides that is raised in a petition against the Bill, but which the Select 11810. MS KHELA: Changing the alignment from Committee is prevented from considering by the what is presently a harmful alignment to what practice of the House.” Victorian railwaymen did, which was to go under the main roads, which is exactly what the Channel 11797. CHAIRMAN: By what? Tunnel Rail Link did, I think would be a reasonable modiﬁcation to the present scheme. 11798. MS KHELA: “. . . by the practice of the House.” Point eight notes: “The objectives of the Directive, including that of supplying information, 11811. CHAIRMAN: I am terribly sorry, Ms Khela, must be achieved through the legislative process.” As we have no powers to do anything of the kind. we are going through the Houses and as the public, and we believe this is part of our consultation 11812. MS KHELA: Mr Elvin says any defect in this process, as in a previous letter that we have outlined Bill, which will be a defect, caused by omitting we were informed that round one and round two Option B from the Environmental Statement and were not formal consultation. This is quite serious Supplementary Environmental Statements— because George Galloway on the Second Reading says: “We have noted a serious omission . . . At 12 o’clock today, there was still not tabled in the papers 11813. CHAIRMAN: Did he say that in this House for these proceedings the very serious matter . . . ” or in the Commons.

11799. CHAIRMAN: Is this in the House of 11814. MS KHELA: He said that in this House. Any Commons? defect in the Bill caused by omitting Option B from the Environmental Statement and Supplementary 11800. MS KHELA: Yes. Environmental Statements can simply be remedied by producing another supplementary paper. At paragraph 447 he says: “All Mr Horton is arguing 11801. CHAIRMAN: We are now in the Second about, if he succeeds, would lead to another House. Supplementary ES of a few pages. It would not give any basis for traversing the principle of the Bill which 11802. MS KHELA: Yes, but I am still going back your Lordship has put very clear this morning. My to the reference which does open the Select Lords, I therefore urge the Committee, at least before Committee to changing what would ordinarily be the proceeding any further, to hear me . . . ” No, he practice of the House. cannot, because there has been an injustice. There is a duty to consult with the public and that duty has 11803. CHAIRMAN: That may be the House of not been fulﬁlled so, therefore, this Bill will be going Commons Select Committee but we cannot do it. through Parliament as an unlawful Bill.

11804. MS KHELA: Is it possible that this question 11815. CHAIRMAN: And what are we to do could be asked? about it?

11805. CHAIRMAN: No. Standing Orders are the ones under which we have to operate. 11816. MS KHELA: I think it must be reported to the House in one form or another. This information that has been presented to dismiss Option B, its 11806. MS KHELA: Even if there has been an veracity must be tested and the reasons why the injustice that has prejudiced your Petitioners? Council has supported the location of Whitechapel Station must also be examined in a public inquiry. 11807. CHAIRMAN: I do not know what it would prejudice, but I can just tell you that changing the Standing Orders of the House is a fairly 11817. CHAIRMAN: But if we go for that exercise complicated exercise. we will be querying the principle of the Bill which has been given a Second Reading, will we not? 11808. MS KHELA: Moving it from a very harmful alignment to an alignment that Victorian railwaymen 11818. MS KHELA: Not if we put in a Transport would be rather proud of under main roads, I think and Works Act on a modiﬁcation on this part of the would be a reasonable modiﬁcation. alignment and, therefore,— Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11819. CHAIRMAN: No, we cannot do that. I have 11832. MS KHELA: Yes, I know. told you this several times. We have no powers to do it. Unless it is within the limits of deviation we cannot 11833. CHAIRMAN: So we are not going to be make a recommendation. any wiser.

11820. MS KHELA: Even though the safeguarding 11834. MS KHELA: No. Could I possibly read a itself where an aYdavit is sworn, there is information very short passage about our additional available where people who were on the safeguarded undertakings. We previously supplied information part of the route had not received information or about undertakings but we have added to this very notification. We have evidence in the scrutiny papers short list. “The Promoter has given an assurance to that they had not received this information. So not build on Channel Tunnel Rail Link in the Commons, only is Option B not in there, the information that so Petitioners have sought to examine what the informed the safeguarding cannot be relied upon Promoter, Crossrail, has done to build on the either. experiences of the Channel Tunnel Rail Link to minimise harm and disturbance and comply with the 11821. CHAIRMAN: It does not make any law. These undertakings are presented in addition to diVerence to the powers of this Committee governed the undertakings sent to the Select Committee and by Standing Orders. the Promoter. The Channel Tunnel Rail Link team considered hundreds of alternative routes; Crossrail did not. The Channel Tunnel Rail Link Committee 11822. MS KHELA: I am going to turn to the ensured the selection of an alignment away from undertakings that we will be seeking. I would just like residential areas to minimise harm and disturbance; it on record that these issues remain for the WHRA Crossrail did not allow this. According to the Arup and the reason that we delayed our hearing was to Report, Dr Keith Bowers said the Channel Tunnel obtain the full information, and now we have been Rail Link gave two undertakings. Similarly, the denied the information on why the tunnel route Crossrail project’s position with respect to settlement policy goes through the Spitalfields area. We will be and its e ects should be established. This applies pursuing that separately, and perhaps not here but in V both to tunnelling and other works, such as shaft another forum. construction. As an illustration, the Channel Tunnel Rail project provided commitments amounting to 11823. CHAIRMAN: Which information have you the use of best practice in construction and an explicit been denied? commitment to the House of Lords to make good any settlement damage to third party assets at no cost 11824. MS KHELA: We have been denied to the owner. The Channel Tunnel Rail Link project information on the policy that informed the tunnel also committed to the principle that any change to route alignment through Spitalfields. the scheme after the parliamentary stage should not be environmentally worse than the base case in the 11825. CHAIRMAN: Is that not in the list of original Environmental Assessment of the scheme. documents that I have just shown you? This is known as the NEWT principle.”

11826. MS KHELA: No. 11835. CHAIRMAN: What document is this that you are reading from? 11827. CHAIRMAN: Well, where is it? 11836. MS KHELA: I am referring to the Arup report. 11828. MS KHELA: Those earlier revisions are still possibly in the Department for Transport with the 11837. CHAIRMAN: I see. Promoter. I could not say. 11838. MS KHELA: “In the case of Crossrail, most 11829. CHAIRMAN: This is the material that you of the information about the environmental impacts are trying to persuade the Information has been left to what is called the detailed design, Commissioner to provide you with on appeal? therefore the impacts will not really be known until the Bill gains Royal Assent, so who will be keeping an 11830. MS KHELA: Yes. eye on the Promoter to protect the interests of Petitioners? Is the timing of the petitioning period not 11831. CHAIRMAN: The diYculty about this is he prejudicial to being able to protect their interests?” is not going to do it in time for the end of our The Arup report also says on Best Practice in Committee hearing. Construction, “The documentation that has been Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association reviewed to date lacks any comprehensive guidance 11845. LORD BROOKE OF ALVERTHORPE: or commitments on the procedures to be adopted to We cannot see the heading though where it comes manage and mitigate risks related to settlement and from. tunnelling control. Such commitments should be sought at the parliamentary stage such that the 11846. MS KHELA: I am now referring to the nominated undertaker has binding obligations to Channel Tunnel Rail Link Planning Inspector’s best practice in the delivery of the works.” No such report— concerns have been raised by Tower Hamlets Council in their petition. 11847. MR ELVIN: I am sorry, Ms Khela. My Lord, I have just been over to ask the same question 11839. At paragraph 3.1.2, “In this area the limited and it appears this is a list of undertakings which have geological information presented by CLRL indicates been prepared by the Association to put to your that the drives may pass out of the bottom of the Lordships, so this is a document we have not yet London Clay. There is much precedent experience of received. these diYcult-to-control water-bearing sands occurring at this horizon and such conditions could 11848. MS KHELA: I apologise, I hope you have be extremely hazardous to such a shield and by it now. extension to overlying property if control of the tunnel feasibility was lost.” 11849. MR ELVIN: I think the Committee might need it, Ms Khela. 11840. At paragraph 3.1.3, “Under questioning, CLRL have acknowledged their geological 11850. MS KHELA: (Document handed to information in this area is incomplete and that Committee) Our major concern is the settlement deed further investigations are needed. Nonetheless it is a provides for material damage whereas the Channel concern in terms of risk management that CLRL Tunnel Rail Link provided for any damage. We— propose at this stage to use a tunnelling machine type which might not be able to handle this ground rather 11851. CHAIRMAN: Is this what you are asking than making a conservative choice. This decision us for? may in turn have some bearing on their choice of tunnelling strategy. This issue will not be 11852. MS KHELA: No. I am still going— satisfactorily resolved. It is interesting that the Planning Inspector . . . ”, and we have submitted the 11853. CHAIRMAN: We cannot give the information on the Channel Tunnel Planning undertakings. Are you asking us to recommend these Inspector’s report, “ . . . deemed it necessary to note undertakings should be given? at paragraph 10 that the construction arrangements have to be suYciently well defined to enable a proper assessment of their likely impact to be made. Two 11854. MS KHELA: We have paid £20 on the basis factors are pointed out by the Planning Inspector that as counsel is not doing that we have been told the showing the NEWT principle to be defective. NEWT House of Lords Committee on the Channel Tunnel does not apply where the undertaker of the project is Rail Link did ensure that the Promoters provide obliged to adopt a variation because of a change in suitable undertakings for concerns that petitioners the external circumstances of the project beyond the raised. control of London and Continental . . . .”— 11855. CHAIRMAN: Which ones do you want us to recommend? 11841. CHAIRMAN: Ms Khela, let me try and get this clear. You are reading from a document prepared by a firm called Arup? 11856. MS KHELA: These are the main undertakings we have requested but we have amended those on the basis of further information 11842. MS KHELA: No. which has been provided which is in the Additional Undertakings, so we have added to that list on the basis of the inadequacy we believe of the information 11843. CHAIRMAN: What are you reading from which has been presented in a sensitive area such as because we do not know? Spitalfields.

11844. MS KHELA: I apologise, I assumed it was 11857. MR ELVIN: Could we have a copy of the on the board. ones— Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11858. MS KHELA: You have already had that. cannot assist. If someone tells me what it is I may You had it in 2007. recognise it.

11859. MR ELVIN: I am sorry, Ms Khela, I am not 11873. CHAIRMAN: It was presented to a Select trying to be diYcult, I am just not psychic. If you can Committee on 31 January 2007. identify it and we have it in the documents, ﬁne, but I just need to ﬁnd it. That is all. 11874. MS KHELA: Yes, that is correct.

11860. MS KHELA: It is in these documents. 11875. CHAIRMAN: It must have been in the House of Commons. 11861. MR ELVIN: Can you tell me where please? (After a short pause) 11876. MR ELVIN: That was presented to the Commons. If it is that which is being referred to, I 11862. CHAIRMAN: You want all these have a copy of it. undertakings to be recommended to the Promoters, do you? 11877. CHAIRMAN: That is what I think Ms Khela is talking about. We know what the House of 11863. MS KHELA: Yes. We would like the Commons said about that. Committee to recommend those because if this Bill is passed in its present form we believe we will suVer unnecessarily with this alignment. 11878. MR ELVIN: I am sorry. Mr Carpenter gave us an alternative version and I apologise for confusing matters. I will stick to 31 January 2007. 11864. CHAIRMAN: I do not mind about the reasoning. What I want to know is, are you asking us to recommend all these undertakings? 11879. MS KHELA: If I may be permitted to read through the reasons why we are requesting these. 11865. MS KHELA: I apologise. 11880. CHAIRMAN: You are not going to read all 11866. CHAIRMAN: You could have told us this, the undertakings, I hope? you know, over an hour ago. 11881. MS KHELA: No, but I am going to read the 11867. MS KHELA: Unfortunately as we are here undertakings which are between pages 1 and 2. presenting a matter which we thought was very important and which we believe will not go away for 11882. The Planning Inspector on the Channel the Spitalfields community we thought it prudent to Tunnel Rail Link said, “Two factors are pointed out raise it. (After a short pause) where the NEWT principle becomes defective as per paragraph 12. It does not apply that the undertaker 11868. The undertakings are listed on pages 2 to 3. I of the project is obliged to adopt a variation because was merely putting forward the reasons why we are of a change in the external circumstances of the requesting those undertakings. I am not sure if the project beyond the control of the Promoter, nor does Committee would like me to proceed? a requirement apply where London & Continental is obliged to adopt a variation because of a finding that 11869. CHAIRMAN: Mr Elvin, have you got a copy any assumption explicitly made by the of this document? Environmental Statement or information explicitly taken into account by the Environmental Statement 11870. MR ELVIN: My Lord, I have the additional was not factually correct.” ones dated May this year. What your clerk has handed me is dated 31 January 2007. Mr Carpenter 11883. Spitalfields community does not know if any has whispered to us what they are referring to are information that has been provided in this House or undertakings that were requested on behalf of the other House turns out to be incorrect and harm is Spitalfields by Ms Jones when she presented— suVered, and we believe there are no adequate compensation provisions for that. 11871. MR CARPENTER: No, I am sorry, they are not. I am sorry. 11884. On noise, the Planning Inspector placed more reliance on what he termed “practical judgment” 11872. MR ELVIN: My Lord, I am not going to than on the detailed predictions of time-adjusted confuse matters. Clearly we are looking at the wrong equivalents. The witnesses showed that figures can be document and unless the Petitioner can identify it, I quoted selectively. Figures for a time period such as Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association an hour or a whole night can be more disturbing that 11896. MS KHELA: We are here today. steady noise. 11897. LORD BROOKE OF ALVERTHORPE: 11885. Those paragraphs are paragraphs 34 to 36 of The Chairman suggested afterwards that they should the Appeal Decision. ensure they read what had transpired. This is going back over old ground. 11886. The CTRL proof of evidence by Fiona Adshead said, “Residents suVered ill eVects 11898. CHAIRMAN: A lot of this has been covered particularly from sleep deprivation. The professional by your colleagues in diVerent organisations in evidence called by counsel on public health matters Spitalfields. There is no way in which we are going to showed that residents on the estate in this area are make any progress on this. vulnerable from a health viewpoint. The unemployment rate is relatively high, many workers 11899. MS KHELA: I would like to be allowed to are on low incomes and there are significant numbers proceed to give evidence which I believe is very of elderly and young people. The vulnerability has pertinent to those in Spitalfields. It is less than a page. been made worse by the fact that the impact of construction works has been going on for years.” 11900. CHAIRMAN: I am not going to stop you giving evidence, if that is what you are doing. I 11887. Paragraph 38: “Some residents have thought you were in fact presenting a petition rather apparently spent time away with relatives to catch up than giving evidence. on sleep but only a small proportion of people . . . ”— 11901. MS KHELA: No. 11888. CHAIRMAN: You have lost me again. What are you quoting from? 11902. CHAIRMAN: You are giving evidence?

11889. LORD JAMES OF BLACKHEATH: 11903. MS KHELA: I am quoting from something Paragraph 11 on page 2. which I believe is relevant.

11904. CHAIRMAN: Are you giving evidence or 11890. CHAIRMAN: What is it? are you presenting a petition?

11891. LORD JAMES OF BLACKHEATH: The 6 11905. MS KHELA: I am presenting a petition on May document. the basis of information which I believe is pertinent.

11892. MS KHELA: The Channel Tunnel Rail Link 11906. CHAIRMAN: It is no use quoting a lot of proof of evidence by Fiona Adshead. I am now at other people, what they said, unless you call them to paragraph 38. When you are all ready I shall begin give evidence. Are you going to call them? again. 11907. MS KHELA: I think it is relevant because 11893. LORD BROOKE OF ALVERTHORPE: this report— Which recommendation to us does it refer to? What do you want us to do? 11908. CHAIRMAN: Ms Khela, I am going to tell you what is relevant and what is not. If you want to 11894. MS KHELA: I think Jil Cove has described quote from what other people have said, they have to to you the health problems in the Spitalﬁelds area. come and give evidence. The health impact study does not incorporate the ﬁndings of the Channel Tunnel Rail Link proofs of 11909. MS KHELA: Even if they have evidence produced— recommended that this report should be followed by other major projects and this Committee has heard 11895. LORD BROOKE OF ALVERTHORPE: about— We have made some comments on that. There was a good deal of sympathy for the health aspects and we 11910. CHAIRMAN: It does not make any probed the Promoters on it. Regrettably there were diVerence what they recommended. If you want to no representatives here from the community at the quote from them, as the presenter of a petition, you time we were doing it. call them to give evidence. Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11911. MS KHELA: On the basis that this 11923. MS KHELA: But I— Committee decided on the Channel Tunnel Rail Link— 11924. MR ELVIN: Please let me ﬁnish.

11925. MS KHELA: I am sorry. 11912. CHAIRMAN: I am sorry; we are not interested in what they did. 11926. MR ELVIN: As you know, we have given an undertaking to the House of Commons to act as a 11913. MS KHELA: On the basis of the Community facilitator as far as we can and as far as the Liaison Panel, information was received by this community will allow us to set up a Liaison Panel. Committee and I did not hear anybody hearing We are not going to run it. Your Lordships are evidence on the basis on which it was determined that familiar with what happened in the two weeks before that tripartite arrangement was not more than what Easter. We have already said we are content, if that is we are claiming it to be, but we do have the report what the community wants, to have the King’s Cross from December 2006 which explains exactly how that tripartite model. I think I put before the Committee, tripartite arrangement worked and we would like— and I think my Lord, Lord Snape recalls this, the material from Camden, the correspondence, so Ms Khela is pushing at an open door if she wants that 11914. CHAIRMAN: Is this the Channel Tunnel because I have already said we do not dispute that is Rail Link? an appropriate model if that is what the community wants.

11915. MS KHELA: Yes, it is, but it is the Camden 11927. CHAIRMAN: I am sure we will be perfectly Council Report. happy as a Select Committee if that happened as well.

11928. MS KHELA: On that basis, Crossrail will 11916. CHAIRMAN: Have you ever seen this, Mr undertake then to direct the nominated contractor to Elvin? submit all section 61 and Schedule 7 applications with supporting documents to the Spitalﬁelds and Whitechapel Community Liaison Panel six weeks 11917. MS KHELA: We have sent it to both parties. prior to the submission to the London— Unfortunately nobody seems to acknowledge emails any more. 11929. CHAIRMAN: Now you are quoting from something else, are you? 11918. CHAIRMAN: One of the fairly basic procedures in these sorts of events is that if you are 11930. MS KHELA: No, this is the undertaking we going to start quoting from documents you should want on the basis of the Channel Tunnel Rail Link St show them to the other side, not now but plenty of Pancras Station Camden Council Report in time before, so they can consider them. It is no use Mr December 2006 which outlines that consultees are Elvin starting now to look at this. aVected groups and not the kind of arbitrary deﬁnition of—

11919. MS KHELA: We have been quoting the 11931. CHAIRMAN: Mr Elvin, is that part of the arrangements of the King’s Cross residents since undertaking or not? 2007. 11932. MR ELVIN: No. 11920. CHAIRMAN: I am sure you have. 11933. MS KHELA: No. We would like that.

11921. MS KHELA: Mr Elvin has had ample time 11934. LORD SNAPE: Lord Chairman, I hesitate to investigate— to interrupt but there are some points I would like to raise with you. First of all, this matter was discussed in some detail and I cross-examined Mr Elvin 11922. MR ELVIN: If Ms Khela had read the personally about the King’s Cross forum and indeed transcripts of the Spitalﬁelds week she will have seen received some undertakings from him that that in relation to liaison we were content to have the procedures which would be followed as far as same structure as the King’s Cross Liaison Panel. Spitalﬁelds was concerned would be identical to Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association those which were followed at the time of the King’s letter received an acknowledgement from Miss Jones Cross forum. that it had been received. We have heard nothing further since. 11935. MS KHELA: May I read— 11947. MS KHELA: I am concerned that this Bill 11936. LORD SNAPE: I have not finished yet. The has been going through and it is compared to the second point I wish to raise is a time one. You did say Channel Tunnel Rail Link, and when we mention to this witness an hour and a half ago that this that any kind of damage was listed on the Channel Committee was time-limited to 7.30 and I do think it Tunnel Rail Link and the Promoters are not willing is important we hear from the Promoters at some to take on those issues and incorporate those into the stage before 7.30. The third point is that I do think it undertakings for an area which it itself calls sensitive is time that you actually enforced your rulings rather environmentally, I think there is a defect in the than giving advice to this particular petitioner. process where undertakings are not being given to people in Spitalfields. 11937. CHAIRMAN: You see, Ms Khela, I am trying to give you such latitude as I possibly can. The 11948. CHAIRMAN: You may think there is a fact of the matter is, it is extremely diYcult to follow defect of whatever sort you like, but the fact of the what you are saying, because we do not seem to have matter is that everybody else who wanted the documents or we did not have the documents undertakings has approached the Promoter, they before. If you want undertakings, the normal method have negotiated, sometimes at considerable length of getting undertakings is to start negotiations with and very often most successfully. You have shown us the Promoters and see if you can reach agreement, a collection of draft undertakings here and fairly and I can tell you that lots and lots of other soon I think we are going to have to hear from the petitioners have done that very successfully. Promoters what they think about it. It is not for us to say what happened to the Channel Tunnel Rail Link; 11938. MS KHELA: They do not tend to be— it is nothing to do with us at all, we are dealing with this Bill. Are you fairly nearly at an end talking about 11939. CHAIRMAN: There is a huge register of the undertakings? them. You have not done it, have you? 11949. MS KHELA: Yes. I am just going to read 11940. MS KHELA: I think the Spitalfields out— community is on record, and Patricia Jones has told me she has not had any communication from Timothy Mould on changes she sought to the second 11950. CHAIRMAN: I do not want a lot of of these— quotations from a lot of other people we do not know anything about. 11941. CHAIRMAN: Miss Jones did put forward a list of points. She had a response. 11951. MS KHELA: No. “The consultees are aVected groups. The tripartite group which 11942. MS KHELA: She has said no. comprises of CTRL, representatives of aVected groups and council oYcers have met regularly since 11943. CHAIRMAN: She may not have done. 2004 and reviewed the proposals in detail. OYcers have . . . ”— 11944. MR MOULD: Can I explain what happened, my Lord? The parliamentary agents, 11952. CHAIRMAN: This is the Camden Liaison Winckworth Sherwood—Mr Christopher Vine I Group, is it? think was responsible for this—wrote a letter in detail in response to Miss Jones’s points. My recollection is 11953. MS KHELA: That is right. that that letter was dispatched on Maundy Thursday. 11954. CHAIRMAN: We know about that. 11945. CHAIRMAN: It was certainly dispatched and it did not oVer much hope to Miss Jones in connection with what undertakings you might be 11955. MS KHELA: But we are not being oVered prepared to give I think. that. There they get to discuss the detailed section 61 applications— 11946. MR MOULD: Yes, it did not go very far towards the point Miss Jones was asking for, it gave 11956. CHAIRMAN: Ms Khela, I can tell you its reasons for that. I am told by Mr Walker that the now— Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [O] PPSysB Job: 405382 Unit: PAG1

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11957. MS KHELA: We are not being oVered this 11965. CHAIRMAN: We are getting towards the by the Promoters. end of this session. I think we know the strength of feeling in Spitalfields. We know that you wish Route 11958. CHAIRMAN: --- if there was any way of B had been adopted, but it has not been and as far as getting a Liaison Group going in Spitalfields you we are concerned it cannot be. The next best thing would have this Select Committee’s strongest seems to us to be that, as happened with the Camden support. But at the present moment— Liaison Group and is happening elsewhere in relation to this particular scheme, there is a system of 11959. MS KHELA: If you could give us consultation with people, your colleagues and undertaking number four I think you would go some neighbours, who live in the Spitalfields area so there way to achieving that. could be a proper consultation scheme with the Promoters. We would support that. 11960. MR ELVIN: If I can remind your Lordships, as my Lord, Lord Snape has already mentioned, he 11966. LORD SNAPE: And did. asked me several questions about this on Day 11, 12 March, and it is in the transcript between 3735 and 11967. CHAIRMAN: We have supported it. The 3748. What I said was that it was not a statutory diYculty about it is that there does not seem to be any consultee but that it would be available to receive the machinery which gets it on foot. information. The local authority would be a statutory consultee and there was therefore a means 11968. MS KHELA: Will this Committee then— by which all the information could be passed through for all the applications and there could then be consultation both between the local authority and 11969. CHAIRMAN: It is no use just talking about the local community and Crossrail on all of those undertakings. It requires people; people to discuss it particular matters. I hoped I had made that clear to with Crossrail. my Lord, Lord Snape, at that time. 11970. MS KHELA: I think a good way to build 11961. CHAIRMAN: Yes. trust is to provide legally enforceable undertakings so that people do feel they have some form of 11962. MS KHELA: Unfortunately we cannot rely protection. on our council because they were originally the reason why we were not consulted because they 11971. CHAIRMAN: Unless you have a lot more apparently forgot to supply the names of local groups about this you want to say, we all want to hear from until almost a year later. We need to have some Mr Elvin. protection and we do not think what we are asking for is unreasonable. “Crossrail undertake to direct 11972. MS KHELA: Yes. the nominated contractor to submit all section 61 and schedule 7 applications with supporting documents 11973. MR ELVIN: My Lords, on the issue of through the Spitalfields and Whitechapel consultation, it is correct to say there were concerns Community Liaison Panel six weeks prior to the about the earlier stages of the consultation, 2003- submission to the London Borough of Tower 2004, and the correspondence which has been drawn Hamlets. This is in order that the community to the Committee’s attention was examined over a representative members can have full knowledge of lengthy period before the Committee in the other all applications, assess the potential impact that all place. It was the subject of lengthy submissions. It applications . . . ”— led, if30 I can have this put up, to a recommendation as to how to take matters forward which was the 11963. LORD JAMES OF BLACKHEATH: My Liaison Panel and your Lordships have heard about Lord Chairman, this is now going to open up the that. So whatever the position was in the past, and reading of seven subclauses which I think we can take I acknowledge that the Commons Committee found as read, surely? It is all down on paper. there were problems, I do not seek to traverse what the Commons Committee said, but the way forward 11964. MS KHELA: That would be wonderful. The was the liaison body, and I cannot do any better than other thing is we do not want any lorries going down to repeat—and I do not mean literally repeat—what a road where two children died and there were a I said on Day 11 at paragraphs 3736 to 3737, that we number of protests which led to the road closure. We would be delighted if the panel got itself up and think the recommendation for that road by Tower 30 Hamlets Council is completely unacceptable to the Special Report of Session 2006–07, Crossrail Bill, HC 235-I, community. para 93 House of Commons Select Committee on the Crossrail Bill, First Processed: 14-08-2008 20:01:25 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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6 May 2008 The Petition of Woodseer and Hanbury Residents Association running but it is dependent on co-operation from the 11978. As for all of the other reasons which have been local bodies and the local people to make it work. raised, whether they were raised precisely in the same language or not, the document presented to the Commons at Second Reading, if you will recall, 11974. My Lords, without the willingness of local Command 6603, includes as I said in my submissions people to make it work, we can facilitate until we are to you against Mr Horton, which you have in writing, blue in the face but we need engagement in order to copious written submissions about the alternative take matters forward. We do not seek, as you know, alignment and whether the position should be to run any local body; we are simply facilitators. We changed. The points which are being made today set up an independent body, Planning Aid, which were made prior to Second Reading and were attracted suspicion as you have heard from other reported to the House in this document—if you start petitioners in the week and a half prior to Easter. We at Document 17, it runs through at least to have done what the Commons asked us to do and we Document 25 or 25 in Command 6603. continue to abide, so far as we are able within our power to do, to comply with the undertaking to the House of Commons. 11979. As for the other arguments about EIA, the Heron Tower, all the matters which have been advanced today, they were laid before the House of 11975. My Lord, other issues are simply by the way. Commons for Third Reading in the document my The important thing is how to take matters forward Lord, the Lord Chairman, has referred Ms Khela to and I have made our position, I hope, perfectly clear today: the Government’s Overview, Command 7250. in response to my Lord, Lord Snape’s questions on It includes the submissions I made on behalf of the the same day in the following paragraphs. Promoter; it includes copious correspondence with Mr Carpenter and those representing him and his 11976. With regard to the alignments issue, this is, Association; it includes the Bindman letter of 2 June however one dresses it up, no more and no less than 2005. The points which are being made now were a re-run of the point your Lordships rejected at thoroughly aired before the Commons in Third Easter. It is no use saying it was not about Reading. alignments: your Lordships will have somewhere amongst the volumes of paper the written and closing 11980. So, my Lord, the whole assumption which is submissions I put in in support of our position which being made, that the Commons made decisions at start out by setting out what the argument by the Second and Third Readings ignorant of these issues, Spitalﬁelds Small Business Association was and it simply does not hold water. These matters were fully referred to the issue of the alignment. It was all tied aired before Second Reading, they were fully aired in to looking at the alternatives to the alignment and during the Commons Select Committee hearing and your Lordships made the ruling you did. the Commons at Third Reading was reminded of the arguments because the majority of this Command 11977. However, can I put right a number of Paper which was presented at Third Reading is the misapprehensions by the Petitioner. It is not true to argument between the Promoters and Mr say that Option B was ruled out because of the Heron Carpenter’s Association. The vast bulk of those documents relate to this particular petitioner. So to Tower. Can I remind your Lordships of31 what I said to your Lordships when dealing with that matter, and suggest that these matters were determined by the I have the transcript here which we will put up. This Commons in ignorance of facts or law, just does not is Day 12, 13 March, paragraph 4520. I said that hold water, as I said. Option B was rejected in March 2001: “There were two diYculties. One was the incidence of the route 11981. So, my Lord, there are a whole series of with deep pile foundations of buildings along the misassumptions therefore in the Petitioner’s alignment and proposed new buildings (which now submissions. We therefore say we have dealt with the include the Heron Tower . . . )”—it clearly was not Option B issue and your Lordships have made a there in 2001 and Ms Khela is right that the ruling. This petition raises nothing new to those application came forward later—“ . . . and also raised by Mr Horton. The objective approach was because it gave rise to diYculties with connecting into simply his way of characterising the matter. It was no Whitechapel Station.” The fact is, the Heron Tower more and no less than EIA and alternative was not the reason for rejecting it in March 2001. The alignments, and as for consultation, we continue to Heron Tower represents one of the current reasons abide by, as far as we can within our power, the why that reasoning is still good; it is because of deep undertaking which we gave to the House of pile foundations, but that was not the reason in 2001. Commons following the airing at length of all of these 31 complaints.

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11982. Finally, as a matter of fact, it is not correct 11988. MS KHELA: I was correcting errors. that the information rounds which went out were only in English. They were available in multiple 11989. MR ELVIN: My Lord, can I make a languages. This point was made before the Commons suggestion? I am concerned that Ms Khela has a very and I corrected it then. If your Lordships want lengthy written presentation which she has been evidence of that, I can submit to your Lordships’ reading from, might I suggest, since your Lordships, clerk evidence of the other language versions of the for understandable reasons, asked her to speed up, consultation papers which were provided to the whether there is any way in which she can give your various communities. Lordships the full written presentation, then you will have everything she was going to say in writing and you can take it away and look at it. 11983. My Lord, other than that, unless your Lordships require further assistance on any of these matters, I do not propose to say any more. 11990. CHAIRMAN: We would be very happy to do that.

11984. CHAIRMAN: There you are, Ms Khela, 11991. MS KHELA: Unfortunately I do not have a what you have got is an oVer to co-operate with the copy today. It has got loads of mistakes in it as well. Liaison Group, but not I think on the basis of providing to them detailed matters covered by a 11992. CHAIRMAN: We are not going to read it collection of undertakings which you have put today. forward. I do not think the Promoters are prepared to give undertakings that they will give specific 11993. MS KHELA: I am happy to submit it. I have material to the Liaison Group. done most of it in writing but I would be very happy to do that. 11985. MR ELVIN: My Lord, that is right, but we have of course, as your Lordship knows, given 11994. MR ELVIN: If it can be done tomorrow, if several other undertakings and, if I can just instance the corrections can be made and sent out last thing one of them, with regard to complying with the tomorrow, would that be possible? Environmental Impact Assessment and the Environmental Minimum Requirements, I gave one 11995. MS KHELA: I am sure that would be undertaking the day I opened the case in the House possible. of Commons in January 2006, and I respectfully suggest to Ms Khela she reads Information Paper 11996. MR ELVIN: I am more than happy for the D2, which explains the Secretary of State’s position Committee to entertain those written submissions. I with securing compliance with the Environmental am sure we will not want to respond to them but I will Assessment and the Minimum Requirements. have to reserve my position. If we do, we will have to do so before the close of the Committee hearing. 11986. MS KHELA: I respectfully say that I did not mention that, I talked about the NEWT principle 11997. CHAIRMAN: We will have to do our best to which is something very diVerent. The alignment read it. We have other petitioners here tomorrow so it may not be very easy to do it full justice but we issue, I would like to correct you, is actually in the will try. petition, the Bill documents, which says that the location of Whitechapel Station was fixed, and we have documentary evidence to support that, so a 11998. MS KHELA: I am very grateful to both of diVerent alignment would have been possible but you you. support a westerly alignment and if I had been allowed to present my full presentation you would 11999. CHAIRMAN: I do not think we are going to have had the reason why that was, and that is because be able to get much further progress on this. These it provides development potential for Tower Hamlets detailed undertakings I think are not going to be very Council. The fixed position of that station is purely likely to proceed. The best one is the Liaison Group for the purposes of development which, for a Railway as proved elsewhere. I would suggest that we would Bill is unacceptable. endorse what the House of Commons said about that and encourage you to take this very seriously and to stop trying to re-open Route B and the EIA point on 11987. CHAIRMAN: I keep on hearing this being which we have made rulings. We can do nothing said and I am not going to hear it any more. Please about this, we have made rulings on it, and I am will you desist from that point. afraid it is no use going on rehearsing it. Processed: 14-08-2008 20:01:26 Page Layout: LOENEW [E] PPSysB Job: 405382 Unit: PAG1

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12000. On the other hand, there are a lot of details, 12007. MS KHELA: Camden Council operate quite including health, on which the Liaison Group could diVerently from Tower Hamlets Council. All section make a lot of progress I think if it were to start 61 agreements go via the community ﬁrst and they discussing it with the Promoters but, as I understand contact all aVected parties. Tower Hamlets Council it, it has not been very productive so far. have invited members to the CLP who are not even in aVected areas and we do not know how useful they can be to a Community Liaison Panel, we do not 12001. MS KHELA: If it achieved this undertaking, believe they can. you would ﬁnd they would be more than willing to consult on the basis of Camden Council’s— 12008. CHAIRMAN: I know the Liaison Group has not been working. It seems to me that the best course to take is to try and get it to work. There is a division 12002. CHAIRMAN: I think your attitude is this, and I will have to let my colleagues go—I do not until you get a collection of undertakings in detail think there is going to be time to do any more about from the Promoters you are not prepared to let the it now. If you hand in your paper so we can look at Liaison Group go ahead at all. Is that right? it. I have now lost my clerk so I do not know what time we may have tomorrow but we might be able to 12003. MS KHELA: We are not asking for a have a brief, and I emphasise “brief”, chance to discuss it again then and let Mr Elvin comment collection of undertakings, we are asking it to work upon it. on the principle as established from reports from Camden Council themselves— 12009. MS KHELA: That would be lovely.

12004. LORD SNAPE: I think, Lord Chairman, 12010. MR ELVIN: If there is a need for me to that has already been agreed. comment might I take that opportunity when I appear again on Thursday rather than tomorrow? I was not proposing to be here tomorrow if I can 12005. BARONESS FOOKES: Yes. avoid it. 12011. CHAIRMAN: All right, Thursday, that will 12006. LORD SNAPE: What Camden Council give us a bit more time to read it too. I had better does not do is give the undertakings which Ms Khela adjourn this until tomorrow because everyone will then demands subsequently. want to go and vote. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [SO] PPSysB Job: 405385 Unit: PAG1

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DAY TWENTY-EIGHT WEDNESDAY 7 MAY 2008

Before: Colville of Culross, V (Chairman) James of Blackheath, L Brooke of Alverthorpe, L Jones of Cheltenham, L Fookes, B Snape, L

Ordered that Counsel and Parties be called in.

12012. CHAIRMAN: Ms Lieven, are you going to 12018. MS LIEVEN: It will, my Lord, one moment deal with the undertaking on the railways? or possibly two. Can I just clarify that a little? In terms of issues, such as settlement and dust, there are 12013. MS LIEVEN: I think Mr Reuben Taylor is obviously massively complicated, lengthy and well- going to deal with that, my Lord. thought-out policies. Can I assume that what the Committee have in mind is that we can say, 12014. MR TAYLOR:MyLords, wehave aresponse “Protection for settlement impacts is set out in IPD to the Committee’s request for an undertaking whatever” and refer to settlement deeds? yesterday and I have been instructed on behalf of the Promoter to read out the following statement: 12019. CHAIRMAN: Yes.

12015. “I undertake on behalf of the Promoter that 12020. MS LIEVEN: I assume the Committee is not any subsequent decisions by the Promoter not to carry expecting us to set out every substantive commitment, out all of the proposed infrastructure works but just the topics that are covered and where the authorised by the Crossrail Bill will be taken on the answers are. basis that, as determined by the OYce of Rail Regulation using the Crossrail model, it should not 12021. CHAIRMAN: Yes, the topics that are have an overall negative impact on the capability of covered and, for instance, I think it might be worth the existing rail network to handle the current and explaining in the settlement case that there are stages forecast growth in rail freight traYc to 2015, as in the assessment of a building. Yes, there have been accepted by the ORR in its decision dated1 14 April some inspections, but there will be more and there are 2008 to grant an access option to Crossrail. The diVerent categories of buildings according to whether translation of such capability into the allocation of they are listed or not, nothing more detailed than that, capacity is for the ORR to determine.” but that sort of thing.

12016. I hope that meets the Committee’s request. 12022. LORD JAMES OF BLACKHEATH: It would help if they provided the reference to where the 12017. CHAIRMAN: I think that is going to be an better description is. improvement. Thank you very much. Before we start on today’s Petitions, I wonder if I could put you on 12023. CHAIRMAN: Yes, the reference and, if notice for something that we would all like you to do. possible, the date since which these things have been When the Spitalfields people come back tomorrow, I in force. cannot remember exactly how far, if anywhere at all, we have got, but I think it might be very convenient if 12024. MS LIEVEN: The dates will not be a the Promoters were to list right at the beginning all the problem; we can put the last date of each Information protective measures which have been taken, and are Paper and the date when undertakings were given. I available to them, on settlement, dust, groundborne am just a little nervous in terms of summarising, for noise, construction noise, and any specific example, if we take settlement as the policy, the stages undertakings which have been given which relate to and so on for two reasons. One is that the list that the Spitalfields and when they were given. Some of them Committee has asked for is a long list. There are a lot are in the Construction Code anyway, but I think that, of topics of environmental protection and there are a if we had a list of those right at the beginning, it might lot of mechanisms for environmental protection quite very well clarify matters, but it will take you a moment apart from the substance, so it is quite a major to collect them, I think. enterprise. We can do it in terms of a list for tomorrow 1 morning, but in terms of summarising what the Infrastructure Provision (SCN-20080507-001) policies say, I think we may be struggling to do that by Crossrail Ref: P78, Promoter’s Undertaking on Rail Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association tomorrow morning. The other problem, the more 12029. MS LIEVEN: Well, possibly; I will not substantive problem, is that I am extremely nervous comment. about summarising what are complicated documents. The IPs are written so that members of the public 12030. CHAIRMAN: Well, I cannot believe they aVected by the scheme can understand them. They are have, judging by what happened yesterday evening! not enormously technical. 12031. MS LIEVEN: I will not comment! 12025. LORD JAMES OF BLACKHEATH: My Lord Chairman, I have not heard you use the word 12032. BARONESS FOOKES:My LordChairman, “summarise”. “Listing the issues that are covered” is what we are looking for is that, if somebody were what I thought I heard you say. coming fresh to this, they would be then given a good idea of what it is all about, if you see what I mean. 12026. CHAIRMAN: Well, I did, but then I went and Somebody is coming to it, they know nothing about it elaborated on it and that is what Ms Lieven is and you are just giving a very simple listing and objecting to. references to where the fuller information can be found. 12027. MS LIEVEN: Well, I am not really objecting, my Lord. It is just that the one thing that I am very 12033. MS LIEVEN: Yes, I understand that. Could concerned about is that we do not end up by confusing your Lordships just give me one minute to set in train peoplesothattheylookatsomethingwhich,asitwere, that work being done because every moment is they perceive to be a summary, then they have the important, I suspect? main thing and they get the wrong end of the stick. We have written those documents with huge amounts of care to try to be as clear as possible, so could your 12034. CHAIRMAN: Yes, indeed. That is why I Lordships trust us to come up with the most sensible raised it this morning. solution by tomorrow morning? 12035. MS LIEVEN: (After taking instructions) The 12028. CHAIRMAN: Yes, certainly, and tell them request is being set in train, my Lord. how they can get to see these things because it is perfectly evident that they have never even looked at 12036. CHAIRMAN: Well, now we come on to them. today’s business.

The following Petition against the Bill was read:

The Petition of Westbourne Park Villas Residents’ Association.

LadyMargotBright appeared on behalf of the Petitioner.

12037. MS LIEVEN: The ﬁrst business of today is 12038. Now, I understand, and I hope I have not got the Westbourne Park Villas Residents’ Association, thiswrong,thatthereare threeprincipalissuesthatthe my Lords, and perhaps I may make a brief Residents’ Association are going to raise today: the introduction before turning to Lady Bright to present footbridge; the batching plant; and a noise barrier the Petition. Perhaps I can have put up Exhibits 027 along Westbourne Park Villas. There may be other and 028 from yesterday. This covers issues that I subsidiary issues, but I have picked those as what touched upon yesterday. Westbourne Park Villas, the appear to me to be the three principal issues. Committee will remember from the site visit and from the introduction yesterday, is the area that lies to the 12039. If I can start with the footbridge very brieﬂy, south of the railway tracks covering the area, I am not which is back to 027, I told the Committee where the sure of the precise parameters of the Residents’ 4 footbridge was yesterday, and those who went on the Association, but basically covering the residential 2,3 site visit will remember walking backwards and properties which lie to the south of the tracks from the forwards over it. I touched yesterday on the fact that Great Western Road bridge along here (indicating) it is an important pedestrian link, we perfectly accept and then on to page 28, if we can put that up. This that, which goes from the residential area to the south road, the one that runs along the south, is actually across to the area to the north of the tracks and, in Westbourne Park Villas. particular, now into the newly built Westminster 2 Academy, and it goes underneath the Westway here (WESTCC-56 04-027) 3 4 Crossrail(WESTCC-56—04 Ref: P79, 028) Westbourne Park—Crossrail proposals (WESTCC-56 04-027) Crossrail Ref: P79, Royal Oak Portal—Crossrail proposals Crossrail Ref: P79, Westbourne Park—Crossrail proposals Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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(indicating). Now, all Crossrail, and Mr Berryman 12044. MS LIEVEN: I will just say a tiny bit, but I can tell youfar more about this than I,but all Crossrail will keep it short, Lady Bright, so thank you for that. needs to do to that bridge is to heighten, to raise, the The batching plant, if we can have 027 up, the northern span to allow new tracks to go underneath Committee will remember from yesterday that I approximately here (indicating). The House of explained that there is an existing batching plant in Commons Committee, in the light of the Petition that here and it has to be rebuilt for the Crossrail works in was presented to them by the Residents’ Association, order to allow the tracks in. There is going to be an asked us to do work to the southern side of the bridge interim or temporary batching plant that will have to in order to allow disabled access up on to the bridge. be road-served and then there will be a permanent As far as the northern side is concerned, Westminster replacement batching plant. The batching plant now Academy have rebuilt, and the Committee will is, and the permanent batching plant will be, rail- remember seeing this on the site visit, part of the served which is critically important in order to northern span, so there is disabled access on the north minimise lorries on the route, and a process has been side. In the light of the House of Commons’ agreed with Westminster to attach conditions to the recommendation, we agreed, and we promoted an AP replacement batching plants. If I can just say in to allow us to do this, to provide disabled access on the opening and come back to this in more detail in south side, so the precise configuration of that has not closing, depending on what Lady Bright’s evidence is, been determined yet, but there will be step-free access the provision of the new batching plant will be a now on the south side provided by Crossrail. significant benefit to residents in terms of noise from the batching plant for a number of reasons. First of all, it will be a new construction, so it will be built to 12040. CHAIRMAN: There are steps in the middle modern standards which will provide considerable too, are there not, somewhere? mitigation in terms of noise and dust over the existing situation. Secondly, it will be subject to conditions, 12041. MS LIEVEN: There are one or two steps in whereas the existing plant is largely not subject to the middle which will be removed by the works that we conditions because it has been there for so long. are carrying out, so it will be an entirely step-free route Thirdly, and Mr Berryman is going to explain this in across. The Residents’ Association now return to this detail because I get a little lost at this point, there will Committee to ask that we rebuild the entire bridge in be abenefit becausethe trainsgetting intothe batching order to widen it, remove any sight-line diYculties and plant will not need to go so far east any longer, so the wholly reprovide it. I am afraid, my Lords, that that is noise on some of the properties on Westbourne Park the point that we stick at because really what is going Villas further to the east will diminish from the trains on here is a request to do work that has nothing to do because, it is fair to say, it is the train noise which is a with Crossrail. Actually for the operation of the major part of the current problems with the batching railway, we only have to do this relatively minor work plant because the trains often have to come in in the at the north side. It is not our responsibility to rebuild middle of the night because that is the only time they this entire bridge. The bridge belongs to Network Rail can get the train paths. and falls within the area of Westminster City Council. The fact that Crossrail need to do a little bit of work to 12045. CHAIRMAN: And they are of course diesel the north side, in our view, plainly does not justify engines. requiring us to rebuild the entire thing. It is also important to note that rebuilding this bridge would be 12046. MS LIEVEN: And they are diesel engines and a very major enterprise, as Mr Berryman will explain I think they are relatively noisy diesel engines at that. to you, because it goes all the way across the tracks, it Overall, we believe there will be a considerable benefit would involve extensive reconstruction and extensive from the scheme just in terms of the batching plant. possessions, so it is our case that it is not our responsibility,itis notjustifiedhereand wearealready 12047. The third issue is the noise barrier. The doing everything that could possibly be required of us residents have asked that a noise barrier be by providing the disabled access on the south side. constructed along Westbourne Park Villas to protect them from noise from the railway. Now, it is correct to 12042. I move then to the second principal topic which say, as anybody who came on the site visit will know, is that of the batching plant and, if we can— that there is a considerable amount of noise at this location already both from the operation of the railway, nothing to do with Crossrail, and from the 12043. LADY BRIGHT: Excuse me, but on the Westway which is up here (indicating). Now, as far as batching plant, we are not going to bring any new Crossrail’s contribution is concerned, it will be evidence along, so it is not really a primary topic. Does relatively slight. The trains will be new and will replace that help you? older and noisier trains, and they are also a Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association considerable distance from the residential properties; either have to go into thepavement or they would have they are right on the far side of the tracks, so the to go on to the railway side, in which case they will Crossrail trains come in here (indicating) on the north have a serious impact on the railway, so we are not side of the tracks obviously as far away as possible talking about something simple here. I will leave it from the residents. there and hear what Lady Bright says, but Mr Berryman is ready to give detailed evidence on the 12048. It is true to say that, since the Environmental wall. My Lords, I hope I have covered what, I think, Statement was done, the noise environment from the are the main issues, but there may be others that we railway has changed in this location, very recently in need to deal with in evidence. fact, because of the replacement of old engines on the high-speed trains to a newer engine which is 12054. LORD BROOKE OF ALVERTHORPE: If I considerably quieter. What that means is that, when could just ask a question on the last point, did you say the next stage of assessment is carried out for noise that, when you come to make an assessment in the insulation for these properties, that may turn up more light of the changes in the sound coming from the new properties being eligible for noise insulation. That locomotivesand Crossrailcoming in,it ispossible that work has not been done yet in accordance with our you might still have to do it? policies and our processes, but it may be that, because the background noise has fallen, the contribution of 12055. MS LIEVEN: Might still have to do the wall? Crossrail is proportionately higher and there may be greatereligibility. Thatissomething thatwe willassess 12056. LORD BROOKE OF ALVERTHORPE: in accordance with our policies and, in particular, in Yes. accordance with IPD26. 12057. MS LIEVEN: No, my Lord. The assessment 12049. However, what we are entirely clear about is would be for noise insulation in the houses, so double- that a noise barrier along Westbourne Park Villas glazing eVectively is what is being assessed. No, there would be wholly inappropriate. The Committee will is no possibility of us doing the wall. You might, in remember, and I am just trying to ﬁnd a photograph, another location with a diVerent set of problems, put that there is a large brick wall along Westbourne Park in a noise barrier. I think at Shenﬁeld we are assuming at the moment and, to construct a noise barrier which that some noise barriers will go in because there it is a had any eVect, it would be necessary to build above simple, straightforward operation and you can thiswall ahigher structurebecause theCommittee will mitigate the noise at source in that way, but here that is be aware that, in order for a noise barrier to work, you just not an appropriate solution, in our view. have got to be between the line of sight of the noise source and the place you are trying to protect, so we 12058. LORD SNAPE: I have one other question would be talking about a very large structure which before you sit down, Ms Lieven. The bus garage—is would be extremely diY5cult to construct, extremely that going to be moved when Crossrail comes into both expensive and also disruptive to construct and operation? which would have a very major impact on the visual amenity of this location. Obviously we have not gone 12059. MS LIEVEN: My Lords, I am sorry, I have into the detail of how you would plan it, but it is in a misledtheCommittee.Canwegobackto027?Thebus Conservation Area and it does not need much garage is here and there is hard standing parking imagination to imagine what sticking a wall, even if it underneath here where we went down on the site visit. was a nice Perspex, wavy, foreign one on top, would The bus garage stays and the bus park moves during do to this particular part of the Conservation Area. thedurationofthe works.Wehavereachedagreement with the bus operating company as to the process of 12050. CHAIRMAN: Is that Network Rail’s wall? the move.

12051. MS LIEVEN: It is Network Rail’s wall, my 12060. LORD SNAPE: So that aspect of the Lord, yes, and, I would assume, Westminster City background noiseyou would anticipatebeing reduced Council’s pavement. once the work is completed?

12052. CHAIRMAN: I am sure it is. 12061. MS LIEVEN: Yes, although my understanding is that the intention is that the bus 12053. MS LIEVEN: One of the things that Mr parking will come back albeit in not precisely the Berryman will tell you about is that any wall that high same conﬁguration. (After taking instructions) The will need very substantial foundations and they would bus parking comes back but to a slightly diVerent 5 location. The point that Mr Taylor was telling me diagonal cracks (WESTCC-40- 04-023) was that for the noise insulation calculations under Crossrail Ref: P79; Brick wall between road and tracks showing Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association the regulations apparently only the noise from the there so that half of them will go back to Paddington. railway is taken into account. The bus garage noise Immediately to the left of that is the furthest point will not make any diVerence to the decision as to east that they can take freight trains without messing whether they are eligible for insulation or not. Of up everything else they have planned, this is what we course, it will make a real diVerence although have been told. As Ms Lieven mentioned, that point probably not a very big one given the distances, but is the one at which the most disruptive night noise it is not relevant for the calculation. and vibration aVects us at the moment. At the moment the freight trains come right up towards 12062. LORD JAMES OF BLACKHEATH: You Royal Oak before the engines run around to move described the area of the buses there as “hard the wagons oV. standing”, but my recollection is there was a mixture of cracked concrete and loose gravel and that would 12068. On the point about freight trains being diesel have a noise eVect on any turning buses; it would and a bit noisy, it is not just the kit that is noisy, it is exaggerate the noise. I would argue with your “hard the way it operates, wagons bang against each other standing” phrase. and so on and it takes three to four hours to do this unloading. 12063. MS LIEVEN: I think I meant hard standing in a thoroughly non-technical sense, just that it was 12069. I am sorry if that is a bit of a detour but I did not anything particularly designed. I have been there not want you to be misled about the impact of freight a few times and that is my recollection as well, there in an area where you probably think there is not any. is quite a lot of loose gravel. I will ask Mr Rupert That is why it is so important to us that this Taylor when he gives evidence to comment. I think headshunt, which I think I am right in saying is the my gut feeling is that, given the distance and what is point furthest beyond which the engine will not run going on in between, it may not have a major impact in future, has now been moved by the Crossrail plans on residents to the south, although I would not know a little further west. whether or not there is a noise impact on residents to the north of the canal. I think there is a wall so 12070. Having seen that Westminster City Council possibly not. I will ask Mr Rupert Taylor to deal with just yesterday has ﬁnally agreed with Crossrail on the that when he gives evidence. My Lord, unless there is concrete batching plant, we cannot really raise the anything else— issue of the concrete batching plant any further than we have so far. We object to it, we think it should not 12064. CHAIRMAN: Not at this stage. Lady be there, we know there is room for it at Old Oak Bright, that is an introduction by the Promoters. Common and we are not persuaded by the arguments Now it is over to you. for retaining it there. I have been told I can take it that the record has been read on these things. I do not 12065. LADY BRIGHT: Thank you very much. I want to take up your time unduly with that one. We think we have a slightly distorted picture of the major have no further evidence to bring on it. I hope that concerns we have as residents. gives you an idea of the issues.

12066. CHAIRMAN: You tell us what they are. 12071. You have seen our worst face, you have seen our railway face, but what you have not seen about 12067. LADY BRIGHT: Thank you very much Westbourne Park Villas is the reason we all like living indeed. The ﬁrst thing to say is thank you for coming there. People have been there for an extremely long on the site visit. This is the most exposed patch of the time. There are many people who have been there for route from the point of view of residents on both the between 25 and 40 years, some bringing up north and south sides in fact, but we are actually grandchildren there as well. It is a very mixed closest to the whole thing. We are overlooking a community and it is a friendly community because of string of work sites between where the tunnels come the ‘common enemy’—I am afraid I have to put it up to the portal at Royal Oak Tube Station, at the that way—which is the cumulative eVects of the noise end of the road and just the other side of that, up a from the various railways, the Westway behind and ramp, is a cut and cover section. The trains will not the programme for the new Crossrail plants. reach grade until about half-way down the street. All that has got to be built. Further along you will have 12072. What is good about those houses and what is the Royal Oak west work sites where the reversing a very valuable amenity of which we are very proud siding has to be built because they do not want to take are the gardens at the back. In this context we are the trains out to the depot, which is something we speaking for the Conservation Area and the other have raised before and we think is silly because it is residents’ associations with whom we have been not very far. They need to put their reversing siding in working very closely on the south side whose gardens Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association are aVected by all this. There is a long strip of green Bill that takes account of it. We only discovered from line, big trees, wildlife and space for children to play talking to Crossrail at our most recent meeting on and so on behind us, which is the adjoining gardens. Thursday that in eVect those silent trains of theirs that we would not be able to hear above the din are 12073. The houses themselves are not joined up, no longer silent; they have moved to the foreground therefore the noise goes through between them. They of the noise environment. Indeed, they are are in clumps if you like, semi-detached and there are confidently expected to be noisy enough to trigger two small blocks of flats. When considering the sound insulation at the face of the houses. We do not damage that is done to our environment it must be know the form of this detailed noise study we are remembered that the houses are not a terrace. You going to have. What we are asking you for is a noise cannot insulate the windows and say you have study that takes account of all the diVerent noise protected the land behind because they are not joined sources. I shall come to that later in detail. It is very on so you cannot. There are possible remedies, you important it is recognised that we do not know the could fill in gaps, but we have not got to a detailed eVects of the new noise legislation, which is having an study stage. eVect on the Secretary of State and on Transport for London, the co-sponsors of this Bill. We have not 12074. This brings me probably to the single most heard what the national noise limits will be for the important issue here which makes all the others in UK in a European context, that is all coming through this highly complex site so diYcult to evaluate and soon, but it will aVect Crossrail trains before they are that is that we have not had a detailed noise study. I running. It has got to be planned in at this stage. am not quite sure what Ms Lieven was talking about in terms of the only outstanding noise assessment that has not been done yet being to test whether we 12076. The Mayor’s noise strategy explicitly suggests need sound insulation at the windows. I do not think that the Crossrail project is an opportunity to tackle that can be right. We have been told we will have a existing noise problems and their interaction. Again, detailed noise study. We have not had one yet. A it is the cumulative eVects and the interaction that we detailed noise study requires complex computer need to be sure about. There is no data. We are asking modeling and you feed in a whole variety of data. At for your help in ensuring that the detailed noise this site all we have got so far are baseline noise study, which comes after the Bill is passed into law measurements, which are long out of date now and then we will be beyond the protection of the Bill because the noise environment has changed and is and there is nothing to help us then, is adequate and going to change further, which, to put it crudely, does assess the cumulative eVects of the noise. I hope produced the conclusion upon which the Promoters’ you would also accept, because we do not have the latest response is based as late as 11 April, which is data, we cannot sensibly predict what the remedies that because the din from the other railways is so should be. This is the context in which we will be great we will not hear their trains. This has been the talking about sound barriers and any other possible position all the way along but it is self-evidently remedies. Sound barriers are listed in the Mayor’s absurd. You cannot run 24 trains an hour in each noise strategy, which is the Promoters’ own noise direction on the same tracks. They may be, from strategy and it is very comprehensive, but it is not where we are sitting on the south side, just behind the allowed for in what we have got to go on at the mainline tracks, but it really is very hard to believe moment, which is the Environmental Statement that you would not have any impact at all. We are relating to the noise aspects of this site. talking about the cumulative impacts that aVect people, that is what matters, not the diVerent noises along the way. 12077. I hope you will not think that we have been diYcult about this. We are not trying to stop your 12075. We have seen no detailed noise study. We railway. We are not anti-train people. We have lived have been told there will be one but it will be after the by railways for a very long time. The noise Bill has become law. We are working on the basis of environment has been getting worse over the last ten data in the Environmental Statement which is out-of- years or so. This is where it is supposed to start date and insuYcient. We are looking at a noise getting better. That may sound very paradoxical and environment which changed just the other day. On it is because the new noise legislation and the noise one of those baseline measurements you will see mapping exercise on London, which I am sure you measurements as high as 104 decibels immediately are all aware of, the Mayor’s noise strategy, are outside the houses sitting on the track. Those engines, supposed to start biting, but they must be reflected in the bane of our lives, have been taken out of service, the way that Crossrail is constructed. Obviously but the eVect of that is not considered in the evidence will be called on this. 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12078. The other really important thing I think was 12082. We will leave the concrete batch works and reckoned to be an overarching issue by PRACT say nothing more than what we have already said whom you listened to yesterday. I should say that we about it except the headshunt point. have worked very closely with them as well, the Paddington Residents Active Concern on Transport. 12083. The footbridge does have to be raised again. There are so many unresolved issues at this point It really does demonstrate the problems and where the overground railway system will intersect complexities that are aZicting us simply because of with the underground works from the tunnels that we where we are. It joins the two communities, the one cannot be sure—and we ask for your reassurance on on the north for whom probably the Westway is the this—how Network Rail is going to fit into this. This greater noise nuisance at the moment and on the is partly a request for information. What we would south, which is us, Westbourne Park Villas. I have like to be confident about is that Network Rail and asked somebody to come from the Westbourne Crossrail, who are doing all the works basically Neighbourhood Forum to talk about the footbridge, between Royal Oak and Westbourne Park, which is which is probably a bigger issue for them than for us, the area that directly concerns us, will be covered by but it is a Network Rail structure. Crossrail says it is the environmental minimum requirements, the not their pigeon and will grudgingly do what is construction codes and all the other detail that is required by Parliament. The House of Commons piled up in those information papers. initially said in their interim report “Just replace the bridge” and that would have been the most 12079. I would like at this point to pick up on straightforward and simple way of going on. What something that Baroness Fookes said when you we now have is a situation in which Westminster, called Spitalfields back. There was a suggestion—and Network Rail and Crossrail are still dancing around the problem seemed to me eminently acceptable and one another and there is still far too much scope for we recognised it from here—that you could get the everybody to say, “That is your pigeon and not my papers arranged so that anybody coming to it brand pigeon”. I will tell you when we come to the bridge in new could say straightaway, “Those are the detail about the large-scale new Lottery funding we undertakings that have been given. Those are the have achieved to make that bridge better. We have rules that everybody is going to obey.” Ms Lieven is achieved it by action between the north of the unwilling to summarise the information papers community and the south of the community—a lot of which on the whole are quite clearly written, but they campaigning. So there is third-party—it is fourth- have been changing right up to the last minute. party really—funding to be considered as well. We just ask for your help in making these things work more smoothly than they are at the moment. 12080. It is very, very diYcult for residents who have a life to live to keep up with the changing pattern of 12084. I wonder if I might call— regulation. I certainly would not claim to have in my head what the construction codes and all the other 12085. CHAIRMAN: You may call your witnesses codes that interact and overlap really mean for us. in whatever order you like.

12081. We have very diVerent concerns to those of 12086. LADY BRIGHT: I would like to call Sir Spitalﬁelds. We would come to you with no Keith Bright, who happens to be my husband, but he undertakings. As we do not have the data we cannot is Chairman of the Residents’ Association, a former have undertakings to do particular things to remedy Chairman of London Transport in the 1980s and a it. All this is going to have to happen after the Bill. I former Chairman of the Nationalised Industries presume that your business here is to see that we are Group as well as having experience in private sector protected under the Bill. There must be consultation industry at chairman level. I think he has some arrangements to cope with all these issues that have experience of making these things work, and knows a to be decided after the Bill and perhaps Crossrail and lot more about trains, and so on, than I do. your lawyers can give us some information about that. We have had a bit of information but not SirKeithBright, sworn enough. All we know is that we will have a liaison Examined byLadyBright committee, but we do not know what our role is in it and because we are so exposed to the overlap between Network Rail and Crossrail and the freight operators 12087. LADY BRIGHT: Sir Keith. it is terribly important that we do know they are all (Sir Keith Bright) Good morning, my Lord. playing by the same rules. I hope I have explained it, but it is a big area of concern and I cannot 12088. LORD SNAPE: Do you usually address him immediately think of a simple remedy. like that? Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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12089. LADY BRIGHT: Can you please explain They will show you—at least they showed us in a rather more eVectively than I have—I hope—why it meeting last week—that a barrier on top of the wall is so important to measure the cumulative noise needs to be four metres high to reduce the noise levels eVects? to acceptable levels. Therefore, having a barrier four (Sir Keith Bright) Indeed. Perhaps I should just say metres high will involve all sorts of wind resistance that I graduated in science and have a PhD in and, therefore, as a result of that, you will have to chemical sciences, but I graduated in chemistry, build piles down into the ground on the rail side of the physics and mathematics. So I have a technical/ wall. That is a nonsense. Four metres would be very scientific background of what happens in sound. nice but it would look ugly and is not necessary. A Sound waves are caused by compression of air and, metre-and-a-half will halve the amount of noise eVectively, you feel this on your eardrums. The point coming across. A 3-decibel reduction will be about noise is it is cumulative; you cannot have a produced by an addition to the wall of a metre-and- generator of air pressure of waves in one place and air a-half. Indeed, if it is sloped you could probably have pressure waves in another place and they not be less than a metre-and-a-half to halve the noise in additive—they are. Anybody that says they are not is Westbourne Park Villas. Crossrail have said if you not telling the truth. That is the first point, and that build a four-metre high wall you will have to have has already been said, actually, to the House of these structures on the other side of the wall. You Commons Committee, by a rather good man, called have seen the wall. The wall, in fact, was built, Richard Methold, in evidence 837 (for the record, it probably, at the turn of the previous century—about is page 9, paragraph 76), and it was accepted, I think, 1900. I think you have not been on the rail-side of the by the House of Commons Committee that was so. I wall, but had you been on the rail-side, you will have really want to get that one out of the way, so that any seen it is an extremely competent wall. It has deep added noise will have a cumulative eVect. With these foundations which, I have been assured, were put in particular trains, the frequency of which is very by the Victorians (or the Edwardians as it might have high—and also something that has not been pointed been at the time), but is a carrier of lot of electrical out is that the frequency is a great deal more where wires and communications, and that sort of thing. It Westbourne Park Villas is because there will be a is a very good wall indeed. You will be shown, I think, turning facility, so there will be not just the baseline one or two discontinuities to the wall as seen from the number of trains but there will also be those that turn Westbourne Park Villas side; there is one crack, round as well; so it will be more than you just might which is near Lord Hill’s Bridge, and there are one or have been given in the number per hour. That is the two other surface defects that you will be shown. The first thing. The second thing is that the amount of crack is the only serious crack in the wall; it does not noise at Westbourne Park Villas is, I think, the aVect the integrity of the wall at all and the surface highest in London—one of the two highest places in defects are mainly caused by the surface of the brick London already. There is a map of this that has eroding away, which itself has been largely caused by already been done sometime ago. You will see from the removal of graYti. It does not aVect the integrity the map, when it appears— of the strength of the wall at all. Therefore, any 6 structure that is required to be put on top of the wall, 12090. Shall I explain, before you go into the detail, just a metre or a metre-and-a-half high (a metre what this noise map represents? would do, in fact) would bolt-in perfectly well to a (Sir Keith Bright) Yes. sound wall.

12091. I mentioned that the noise environment has 12092. Sir Keith, how important is it that we do not changed. The legislative environment is changing as have the data we will require from the detailed noise well. This map, which was I believe put together by study? Can we, should we discuss in too much detail Mr Rupert Taylor and his colleagues—for the how a noise barrier would work if we have not got Promoter but nothing to do with Crossrail; the that data? Department for Transport—shows (you can see the (Sir Keith Bright) No, I do not think we can discuss arrow) Westbourne Park Villas and it shows that we how a noise barrier will work, but it is irrelevant are a real noise hot-spot. The new noise laws require because one does not know anything at all because the individual European countries to deal with those we just do not know the noise levels that are there; we hot-spots in order of priority; therefore this hot-spot do not know the legislation that will control noise at will have to be dealt with. all. I just want to deal with the integrity of the wall (Sir Keith Bright) Yes. What we are interested in is and the fact that a fairly small barrier will not be a the reduction of noise levels. You will be shown by bother to the engineers that have to bolt it on to the Crossrail something which I think is quite absurd. wall. Finally, the only point I would add to that is the 6 rails next to the wall (on the other side of the wall Park Villas (SCN-20080507-003) from Westbourne Park Villas) are not main railways Committee Ref: A64, Defra London Noise Map of Westbourne Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association at all; they are sidings. Therefore, it would not have to have them at diVerent heights. Until one has interrupt the railway to do that particular work. that data one does not know what one is talking Whether we need the particular sound barrier or not about. in that way we have yet to find out because we have to have the information. 12096. What noises would you factor in to the interactions here? 12093. Would you like to tell us something about the (Sir Keith Bright) The noise factors would be all the noise eVects of the freight trains which also vibrate? railway noise, the noise of the motorway and the (Sir Keith Bright) Yes, indeed. Of course, the local traYc noise as well. Of course, it will depend couplings between passenger trains are absolutely upon the time of the day and night, so you would tight and exact and you can walk between one have to do this over a period. There are techniques for carriage and another. You cannot do that on freight doing this and there are well-established rules for trains; you have to have disconnecting trucks, and, of making a judgment on the level of noise; although it course, you have the noisy diesel engine driving them. fluctuates you take an average through the day and It has a heavy load to drive; therefore, it will be through the night. puYng away doing its damnedest all the time. These things have to be manoeuvred and turned round, and 12097. LADY BRIGHT: Thank you. it is not just Westbourne Park Villas, it is further along the line. So residents will suVer a great deal of Cross-examined byMsLieven noise from these trucks. Perhaps there is just one other thing I would like to cover, and that is if you 12098. MS LIEVEN: My Lords, I have one look at the Royal Oak portal (if I can ask you to show question. Just to confirm, Sir Keith: you gave that) this is where the7 Crossrail would emerge from evidence about the wall, and I obviously understand the deepest tunnel into the surface air, and you will you live next-door to the wall and you know it and see that is a real photograph of an artist’s impression love it, I am sure, very well, but you are not a of the train emerging. A good deal can be done even structural engineer, are you? at that stage to prevent a lot of sound coming out by (Sir Keith Bright) No, not at all. May I just say one dampening down those walls either side. If sound- thing: I have gone across to the other side of the road absorbent material were put on them that would have with binoculars and studied the wall in some detail some mitigating eVect of the noise to the from one end to the other, and it is a very good wall surroundings. indeed.

12094. LORD JAMES OF BLACKHEATH: Sir 12099. MS LIEVEN: I knew that you knew it and Keith, does that tunnel have any ampliﬁcation eVect loved it—I did not doubt that at all. So far as the on the sound? noise study is concerned, my Lords, I think the (Sir Keith Bright) I do not think it would, no. No, I sensible thing to do is for me to ask Mr Rupert Taylor do not think so. No, I think, there would not be a to explain what noise study will be done. I suspect we rush of noise coming from the tunnel at all. There can set a lot of concerns at rest on that, but I will not would be some noise preceding the train, as in the do that through cross-examination, I will do it speed of sound the waves will build up in front of the through asking Mr Thornely-Taylor. train, but there is nothing like that; it will be quite slow. So I do not think that would be a real problem. Examined byTheCommittee The real problem is the cumulative noise that this railway line would add to the other noise we have got 12100. CHAIRMAN: Sir Keith, does the traYc on around, and I think that would be fairly considerable. Westway cause a lot of trouble? It is at a very high Again, we do not know until it is measured. That is level above the ground, and therefore I would have the whole trouble. thought it had an impact on you. (Sir Keith Bright) It does, indeed, and there is an 12095. LADY BRIGHT: Exactly. Would you like to interesting point here. If you take a line at right- list the things that really need to go into a detailed angles to the Westway, the noise impact is much less noise study (what are some of the elements under than if you are along the Westway. Perhaps I can just some of the headings) in order to get any valid explain: if you take a walk along the canal, which answers at all? runs parallel with the Westway, the cumulative eVect (Sir Keith Bright) You have to measure the noise. of the traYc coming along the Westway in a line is You have to have sound measurements at various devastating. The noise can be heard at least, I would places and various distances from the railway; you think, for probably nearly half a mile, because the 7 Westway veers oV at an angle but the cumulative 20080507-004) noise of all the traYc coming along before it veers oV Committee Ref: A64, Crossrail Royal Oak Portal (SCN- Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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is pushed down the8 canal. So the people who live near proper new surface, as it should be (and we do not the bridge near Sainsbury’s supermarket—I am not know the specification here), it could make a massive sure I know the detail of which bridge I am talking diVerence in the noise environment—another factor about on there— which needs to be taken into account when a detailed noise study is done. 12101. MS LIEVEN: Sainsbury’s is well oV to the (Sir Keith Bright) We shall be making left, my Lords. It is not on this map. representations to the Mayor of London to get that (Sir Keith Bright) Is it not? Anyway, perhaps I can eVected. just continue. It is the build up of noise linearly that is much more serious than noise at right-angles to the 12105. LORD SNAPE: You have lived at your Westway. There is no question that noise levels present address for some years, Sir Keith, have you would be improved if the Westway itself could have not? Can you tell me how many years you have some sound barriers put along it. I understand that actually lived there? cannot be done because the structure of the Westway (Sir Keith Bright) We moved there in 1982. I think would not take it. That is hearsay, that is not definite you visited us in 1983. evidence. So the Westway noise is a totally diVerent sort of noise; it is almost like white noise; it just 12106. I was not going to tell my colleagues that! I permeates the whole of London, actually. If you go hope there is no significance in the fact that you have several streets away you still hear this swishing noise, not invited me back! In 1982, when you moved there, but it obviously goes oV. There is one basic rule that the Westway was, of course, open, was it not, and I think everybody should bear in mind. There is probably nearly as busy then as it is now? something called the “inverse square law” which (Sir Keith Bright) Yes. means that the noise drops oV in a parabolic fashion from the sources of noise. So the further away you are 12107. You knew when you moved there that you from the source of the noise the more rapidly it dies were moving into a house that overlooked the busiest away. The swishing noise does go on for quite a long railway station, or the busiest terminal station, on way. It is a diVerent frequency and does aVect the what was then the western region of British Rail. ears in a diVerent way, but my main point is if you are (Sir Keith Bright) One of the busiest, yes. on a line where the motorway is travelling, the added eVect of all the traYc from the noise of the wheels on 12108. As we have heard from Lady Bright in her the road down that line is devastatingly awful. I do opening remarks, the high-speed trains that operated not know why there have not been complaints before. in and out during the 1980s, as they do now, were Perhaps one final thing to say is if you get the right then engined by Paxman Valenta engines, which are surface on the road (and I suspect this is not the right considerably noisier than the ones that they have one) you can reduce noise levels by well over 50 per been replaced with. Is that right? cent—and nearer 70 per cent if you have the right (Sir Keith Bright) That is right. road surface. You can probably tell this from your own car if you drive along on diVerent surfaces: 12109. I have just done a quick calculation of the suddenly the noise in the car changes as you go to a number of train movements in and out (I cannot say more modern surface from an old surface. it is 100 per cent accurate but I share a railway background with yourself) but it is something like 12 12102. CHAIRMAN: It is usually a combination of high-speed trains; eight local diesel multiple units, the wheels, the tyres and the surface of the road, is eight Heathrow Expresses, two Heathrow Connect it not? trains, the odd freight train that we have heard about (Sir Keith Bright) Entirely. The noise of the engines and the empty stock movements necessary in and out is quite small, unless you are driving a racing car or of a major terminal. Those are the train movements something like that. Nevertheless, that is entirely so. that take place, and yet it appears that your case, and the residents’ case, that despite all that and despite 12103. LADY BRIGHT: The Westway is due to be the Westway, life will be intolerable because of the resurfaced, we understand. addition of 24 of the most modern, electrical multiple (Sir Keith Bright) I understand that, yes. You units—which you and I both know are much quieter understand that. than any of the trains that I have just mentioned. Is that an unfair summing-up of your case? 12104. We have not got the detail but it is Transport (Sir Keith Bright) It is not an unfair summing-up at for London’s job and their schedule. Again, it is the all. The reason why people moved there, as Lady sponsor’s job to do it and if it is resurfaced with a Bright mentioned, is because there is a green lung 8 behind the houses; the gardens are marvellous. In (WESTCC-56 04-027) actual fact (you will probably remember) in my house Crossrail Ref: P79, Westbourne Park—Crossrail proposals Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association what we have done is filled barriers between the two (Sir Keith Bright) Not that I know, no. houses on either side to reduce the noise in the back garden, which has been very eVective. The noise in 12113. Have you done any estimates of what the the back garden is very good, as you well know. likely cost would be? (Sir Keith Bright) Yes, we have an estimate from a Dutch company. They think about £90,000 will cover 12110. I have actually forgotten everything but the the length of the wall, I think, if it is about a metre- excellent food and wine! I do not remember hearing and-a-half high. By the way, if the barrier is angled any background noise from the trains, I might tell the eVective height is greater, do you see, than the you. actual height. So if it is angled slightly this way you (Sir Keith Bright) Precisely. That is one way we had do not have to build quite such a high barrier. of dealing with important transport people from the House of Commons at the time. It is not the front of 12114. CHAIRMAN: That was why it was curved in the house; it is the house itself, which is very spacious the first place, no doubt. and very good for bringing up a family, and the back (Sir Keith Bright) Yes, possibly. I do not know about of the house, which is delightful, as you know. We that. On the railway side it is straight; it is only on our have taken measures ourselves to stop the noise side it is curved. coming between the houses, which has been enormous. There is, however, a fact now that I think has changed things, and that is the enlightenment of 12115. LORD BROOKE OF ALVERTHORPE: politicians throughout Europe of changing Have you made any approaches to Network Rail legislation and a change in what is acceptable as noise previously to get some installation of barriers? levels. That has changed the whole situation now, (Sir Keith Bright) Many, and they refuse to talk to us and I do believe that we will have support from at all. politicians generally that the total noise levels are too high. That noise-mapping that we showed was 12116. LADY BRIGHT: We do have another something over 75 decibels. That is enormous. The witness on that, if it helps. whole point about a noise barrier that I was mentioning is that a 3-decibel reduction halves the 12117. CHAIRMAN: Thank you very much. noise—halves the noise—from a barrier a metre-and- a-bit high. I shall leave that with you. That will aVect The witness withdrew the front of the house and, of course, the back of the house as well. 12118. LADY BRIGHT: Perhaps I could clarify the point about Network Rail that was helpfully raised. They refused to talk to us until the Bill is through 12111. Do not think for a moment, Sir Keith, that I Parliament, so we have not got any communication do not doubt that it is very noisy because of the going directly with them. We do communicate cumulative eVect of the trains I have mentioned and directly with Crossrail; we are part of the liaison the Westway behind, but the point I put to you is do group and there is a consultation process, but it is our you think that that noise will be considerably concern—and this is part of the information from worsened by the passage of these 24 modern EMUs government lawyers, perhaps, to tell us what the on the tracks that are almost as far away from your situation is—how that consultation will continue. We road as they could possibly be? do not know if Network Rail is going to be named the (Sir Keith Bright) Not as far as they could possibly nominated undertaker for the overground station, do be because the other side of the motorway would be we, but we want to make sure they are all covered by very good and you would probably hear nothing the same codes and that there is consultation directly from us under those circumstances. No, I think the with them. cumulative eVect is important. It is the compression of the air, the airwaves, that do build up and make it 12119. CHAIRMAN: You have the last word in beyond the point which is, I think, acceptable. Quite this. Let us see how things progress, shall we? frankly, sir, we do not know; until it is measured we really do not know. We are talking mainly of 12120. LADY BRIGHT: That would be very helpful theoretical possibilities and we want to make sure because there is information required. that whatever happens in the new legislation we can fight it. 12121. CHAIRMAN: Then you can sum-up at the end on the basis of what is left. 12112. LORD BROOKE OF ALVERTHORPE:A question, Sir Keith, on the wall. Is there any 12122. LADY BRIGHT: Precisely. So just hand prohibition on building on the wall—any listing? over at this point, really, you are saying. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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9 12123. CHAIRMAN: Have you got another 12129. LORD JAMES OF BLACKHEATH: As witness? this is a GPS map could we possibly pinpoint precisely Mr Hessenberg’s address please. 12124. LADY BRIGHT: We have two witnesses but they are really here and available because I thought 12130. LADY BRIGHT: Number 60. that Crossrail was probably going to raise certain questions on this and your Lordships might be 12131. LORD JAMES OF BLACKHEATH: The interested in getting the information directly from other map was GPS and it would be helpful to get them. Mr Hessenberg’s wife gave evidence in front of the address. the House of Commons on the peculiar eVects of the (Mr Hessenberg) It is more or less bang in the middle. freight trains as they pass by a certain group of houses in the street. It was to demonstrate, really, 12132. CHAIRMAN: What about one of those that there is a concern about what is going on under pointers. the ground. Mr Rupert Taylor, the noise expert for Crossrail, has pointed out that the way the noise 12133. MS LIEVEN: I am afraid I do not know works shows that there may be made-up ground or which house it is, Sir. discontinuities underneath that we have not looked (Mr Hessenberg) I am pretty bad at maps but it is at yet. I am not going to raise the issue of settlement; bang in the middle. That is the footbridge there and we know we are covered by what all the other the Brights are here; we are about here. Petitioners and the local authorities have been doing on settlement, but I just wanted to indicate to you 12134. LADY BRIGHT: Can you point out the two that both above the ground—noise in the air—and churches, the Buddhists at the left end? below we have not had the detailed studies yet. So Mr (Mr Hessenberg) Is it there, that one? Hessenberg is available to answer questions on that and, also, deal with Network Rail, but I do not want 12135. LADY BRIGHT: And down at the other end to clog your process up too far by calling him, unless the Baptists. you wish to hear him. (Mr Hessenberg) Then there is the Baptist Church there. 12125. CHAIRMAN: It is your Petition and you present it in such a way as you think ﬁt. 12136. Both of them are sites that do require a lower decibel level of noise because of specially sensitive 12126. LADY BRIGHT: I would like to leave the receptors. footbridge until last because I know that some of (Mr Hessenberg) That is Elsie Lane, is it not, so we you, Lord Jones in particular, had some information are here? you wanted dealt with and we have brought it with us and we can deal with that on an information basis. 12137. LORD JAMES OF BLACKHEATH: Might I call Ian Hessenberg. Thank you very much.

12138. LADY BRIGHT: You can see where the MrIanHessenberg, sworn footbridge is. Also we need to point out that the Examined byLadyBright Underground trains, the Hammersmith & City trains go under the main lines. Can you see where that is? 12127. LADY BRIGHT: On the question of dealing (Mr Hessenberg) About there, I think that is the with Network Rail and its predecessors, you portal. probably have had more direct noise eVects than anyone else in the street over the years of the 12139. LADY BRIGHT: Yes, that is right, so there railway; yes? is already a discontinuity in the ground. (Mr Hessenberg) Yes, we were sound-monitored by the Council on several occasions and they said that 12140. CHAIRMAN: We saw that from the the decibel levels were way too high but there was footbridge. nothing they could do about it because they had no jurisdiction over Railtrack. Is it Railtrack or— 12141. LADY BRIGHT: Yes, you can see that, so would you say that you have special circumstances— 12128. At any rate, you have got files of your noise profile is not the same as the noise profile correspondence? of a house four down? (Mr Hessenberg) Yes, it was an absolute dead end 9 there. (WESTCC-40 04-021) Committee Ref: A64, Estimated length of acoustic wall Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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(Mr Hessenberg) Standing in front of your house this (Mr Hessenberg) Yes it is, I am sorry. morning I was deeply shocked by how much worse yours is than ours. It really is appalling because you 12151. And secondly as far as these EWS trains are have got the barrier, you have got Royal Oak Tube concerned, I think you said that your house was one Station where everything is screeching to a halt there of these ones here (indicating), was that right? and it is particularly bad there. (Mr Hessenberg) That is it, yes.

12142. You were telling me that things are better at 12152. Under the Crossrail scheme, I do not know if your end in one respect suddenly. you understand, the batching plant is going to be (Mr Hessenberg) Only because they have reengined moved and the lines are going to be reconfigured. the Paxmans and put in new Deutz engines which are (Mr Hessenberg) Further west. much, much quieter and there is less pollution. I think the main thing is the EWS trains, the aggregate 12153. Were you aware of that? trains which bump in the night and screech, and the (Mr Hessenberg) Not totally, no. batching plant, that is really very severe with violent vibration. 12154. Were you aware that the batching plant was going to be rebuilt? 12143. Are you satisfied that that will be better now (Mr Hessenberg) Yes. that the headshunt is further west? (Mr Hessenberg) It is still quite a problem. 12155. Were you aware that the tracks were going to be reconfigured? 12144. CHAIRMAN: Are the EWS trains loose- (Mr Hessenberg) No. coupled? (Mr Hessenberg) Yes, it sounds like it. 12156. The fact is that under the Crossrail scheme the EWS trains, which at the moment come all the way 12145. LORD SNAPE: I am sorry, Lord Chairman, down here to go into the batching plant, are not going they are not. There are hardly any loose-coupled to go any further than approximately here, ie west of trains left by and large on the railway system. the footbridge, so they will stop coming past your house in the night. As I understand it from what you 12146. CHAIRMAN: I was surprised— have said about the EWS trains being the biggest problem for you because of the noise they make at night, that will be a significant improvement to your 12147. LORD SNAPE: They are not loose-coupled; position, will it not? they have continuous air brakes and they are tightly (Mr Hessenberg) It sounds like it. coupled together these days. (Mr Hessenberg) But they do screech and bump. 12157. MS LIEVEN: Good, thank you. 12148. LORD SNAPE: Indeed, I am not saying they 12158. LORD SNAPE: Before you leave us Mr are particularly quiet but they are not loose-coupled. Hessenberg, could you tell us how many of those Of course the engine could be doing 20 miles an hour, freight trains there are in the course of the night? Are and the guards van at the back—and I speak from they running continuously or is it just the odd one? bitter experience—actually moved, but we do not (Mr Hessenberg) It is the odd one. It is my daughter have any of those any more. who lives in the upper floors who is much aVected by this. We are in the back of the house and at a lower 12149. LADY BRIGHT: I think you have got a level, but we do get complaints from the people who sense of the geography there, thank you very much. live above.

Cross-examined byMsLieven 12159. LORD SNAPE: I am not suggesting the noise is any less because there is only a few of them, I 12150. MS LIEVEN: Mr Hessenberg, can I just ask am just trying to ascertain in my own mind how often you a couple of factual questions, please. First of all, these train movements take place. as far as the Hammersmith & City line is concerned (Mr Hessenberg) I think one of the concerns is the and the portal, you suggested that it was on the south deep rumbling and the vibration aVecting the houses side of the track somewhere round here; in fact it is considerably, and cracks appearing in the walls. on the north side of the tracks, these are the Hammersmith & City tracks over here and the portal 12160. LADY BRIGHT: It is not just these trains. is over on the north side, on the Westway side, is it We are glad that the new arrangements will be in not? place so the headshunt will not come so far west. In Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association other words it will not run round the train and aVect Network Rail and Westminster City Council for the whole of the rest of the street but there will be a many, many years and it has been a concern to temporary fleet railway inevitably moving heavy stuV residents for many years. It is regarded as muggers’ at all hours of the day and night between the two alley and everyone is terrified of it from a crime point work sites out west to the portal while the railway is of view. I think we have got the crime figures for being built. everybody here. You have got a copy of the crime figures with you, have you? Did every member of the 12161. LORD SNAPE: Your witness made the Committee get given10 a copy of those? I know there point, Lady Bright, that it was the EWS trains that was a specific question on that. That is fine and the were the main source of the complaints at night and other one is a letter. Could we put up on the board I was trying to ascertain for my own information just these two letters. These letters will bring you up-to- how many EWS trains actually operate during date on the position vis-a`-vis Network Rail and those hours. Crossrail and what they are doing. Miss Lieven gave a run-through of the history of the footbridge and 12162. LADY BRIGHT: It depends on the demand what Crossrail’s involvement is. I would like to for concrete. remind you that the House of Commons did say in (Mr Hessenberg) It is sporadic. their interim report that the Promoters should simply replace the bridge and that would be much easier to control. What we have got at the moment is a 12163. LADY BRIGHT: At the moment but what halfcocked solution, as it were, and the problem that we cannot predict—we have been told three or four recurs repeatedly in our location, that of the freight trains per day, which is far more then we have interlocking of Network Rail and Crossrail and at the moment, during the construction phase—but Westminster City Council and other agencies. I am we cannot really predict very closely what that will be not able to judge that letter from Network Rail very and we seek reassurance on what conditions there well but it seems to most of us, and Claire will give her will be on their operation, we just do not know. views on this, that it is not full of urgency, it does not give us a timescale really when things will be done and 12164. CHAIRMAN: Any more questions? Thank the bits that matter, which are the safety aspects, you very much. could be dealt with very quickly. Could I perhaps just for information ask Claire a question. Miss Millett is The witness withdrew. the Manager of the Westbourne Neighbourhood Forum. Would you like to introduce yourself and 12165. LADY BRIGHT: I think that shows, explain what it is. perhaps, that we really are not terribly clear between (Miss Millett) I am not the Manager of the us, not all of us, exactly what the implications are of Neighbourhood Forum; I am an oYcer there. the Crossrail project. People have got swept up into Westbourne Neighbourhood Forum covers the this in dribs and drabs because it is quite a long way Westbourne electoral ward within the City of ahead that those new trains will be operating and I Westminster. We are a forum that represents the think people are just beginning to click quite what the whole community and we are directed and led by a implications may be. I just must say again and again management board which consists of residents, we do not have all the data on what is going to be businesses, community organisations, and also happening there. We do not have the noise data so we statutory partners from the Council, the Police, the cannot judge the full implications and therefore we primary care trust, and so on. We were set up by cannot give sensible discussion to the proposed Westminster City Partnership initially with remedies. That is the first point and the second point Neighbourhood Renewal funding and subsequently is that we do not have direct undertakings specifically with Local Area Agreement funding and what we to this site because the information has not yet been have been tasked to do is to set out a Neighbourhood available to do so. It has been building up its generic Action Plan which is based on the community’s codes and so on but we do not know how it applies to concerns and agreed with the statutory partners, so us and that is a matter of major concern. I think we essentially what we do if you like, it is the should just move on to the footbridge and I should neighbourhood management structure that creates a call Miss Claire Millett. bridge and a partnership between residents on the one hand and service providers on the other. MissClaireMillett, sworn 12167. Thank you very much. That helps and that is Examined byLadyBright a community of approximately 10,000 people, I believe.

12166. LADY BRIGHT: You are, I believe, aware 10 of the general outline of the diYculties over the Infrastructure Limited and Westminster City Council, 4 April footbridge. It has been a running sore between 2008 (SCN-20080507-005 to -008) Committee Ref: A64, Correspondence between Network Rail Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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(Miss Millett) That is right, yes. 12171. LADY BRIGHT: Thank you, Claire. Just before we go on I just wanted to set the context here. This letter that you are looking at from Network 12168. That is 10,000 on the south side and 10,000 on Rail— the north side. (Miss Millett) Should I just add, Lady Bright, the reason why Westminster City Partnership has set up 12172. CHAIRMAN: This is a recent letter, is it? this neighbourhood management structure in Westbourne is because it is one of the most deprived areas not just of Westminster but actually of the 12173. LADY BRIGHT: This is the latest statement whole country, so the community that I represent is we have; this is in fact the only statement that has extremely deprived, which perhaps we will go on to. been made available to us.

12169. Yes, and I believe the Committee is aware that 12174. CHAIRMAN: When was it written? the latest impetus for concern about the state of the bridge is that there is a new school, a 1,200-pupil 12175. LADY BRIGHT: The date on the top of it is academy, where about a quarter of the pupils live 4 April, so this is where we are now and through south of the railway, and that has been open since Westminster City Council, because Graham King September, so there is a large new group of young there is Chairman of the Paddington Area Liaison people who need protecting in using a bridge that has Group that brings us all in, there have been eVorts to been unpopular because it has been regarded as get Network Rail to say what they would actually do, unsafe. I would also like to ask you, Claire, about the and it has been a year since this was last heard in the Lottery money, the extra factor in this bridge, the other place, and the bridge must be the only place in third party funding. Would you like to explain how London that still does not have closed circuit that came about? television, it does not have the lighting it needs, it (Miss Millett) Essentially, since the Neighbourhood does not have the mirrors it needs, it does not have Forum has been in existence we have identiﬁed that any of the things that could be done quickly let alone this footbridge is a huge problem for a lot of our the larger scale rebuilding that needs doing and this residents because it is unsafe, it is perceived to be letter from Network Rail only eventually came unsafe, and also for mobility issues if you are in a through after I think it had been requested for about wheelchair or with pushchairs, so the eight months, or something like that, so we are not Neighbourhood Forum has been working with talking about getting a quick reaction. Westminster City Council to try and petition with Network Rail and so on to improve the footbridge. One possible solution has been working with 12176. CHAIRMAN: What sort of work is it Westminster City Council to win Lottery funding proposed that the Sustrans grant will fund? through Sustrans which is an organisation which basically tries to put forward sustainable transport. 12177. LADY BRIGHT: Would you like to explain it? 12170. LADY BRIGHT: Walking and cycling, safe routes to school. (Miss Millett) Yes, so they are not quite so concerned 12178. CHAIRMAN: I do not know who the with the crime elements. What they are trying to witness is but one of you. achieve basically is sustainable routes through the area, so with huge community support, literally our 12179. LADY BRIGHT: The Neighbourhood residents on the phone to 50 other residents they Forum represents the residents on the other side and know encouraging them to vote, Sustrans was you are a paid oYcer, are you not, to deal with these successful in securing the National Lottery funding. problems. That was £50 million of which this footbridge and links has a share of about £600,000. So there is third party investment here but what we need to be clear on 12180. CHAIRMAN: You tell us then. is that that is the footbridge and links, it is not just for (Miss Millett) The Sustrans money is for an area. I the footbridge, so what we would not want is for have got some maps actually in here which show people to think there is some funding here. We do not where the Sustrans funding is for, and it is for a wider need to do anything else because actually the purpose area than just the footbridge, so it is for areas along of that funding is to improve the other rights of way the canal to improve the pavements so they are easier leading onto the footbridge and then leading oV it to cycle on and walk along, so it is not just the and then to access the rest of London. footbridge. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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12181. What is it going to do to the footbridge? DDA compliant. They also mention to be ﬁtted with (Miss Millett) Physical improvements so— appropriate lighting and a concave mirror where deemed appropriate by a local crime prevention 12182. LADY BRIGHT: Make it accessible for oYcer. We are grateful for that but we feel that only bicycles for example, which it is not at the moment. goes halfway towards resolving the problem. The (Miss Millett) At the moment that detail has not other problems that face the footbridge, as you actually been agreed and one of the reasons why it mentioned, are it has a dog leg in it so you cannot has not been agreed is because we are waiting for the actually stand and look all the way down the Crossrail decision. Depending on what is agreed here footbridge and see who is coming towards you. It in this Committee will impact on how that money is also has six-foot high panelling which you cannot see allocated. For example, if through Crossrail the through so you cannot see onto the bridge and you bridge can be signiﬁcantly improved then we can use cannot be seen on the bridge. What we would this other funding to improve the other links, for actually like is to have without going into the details, example resurfacing the pavements and other some mesh or something to make the bridge footways and making them more accessible. transparent, to widen it so you can get wheelchairs However, if the Crossrail decision does not go some and a pushchair going along it at the same time. way into making the improvements that we would like to see actually on the footbridge, then we would 12190. LADY BRIGHT: A lot of this has been dealt have to take another think about it because the with already on how much they can widen it. They money from Sustrans is not actually enough to do cannot widen it that much and the consultative what we would like on the footbridge itself and it also committee has already discussed it. There are does not take into consideration the fact that this commitments beyond which I do not think we are funding is for the footbridge and links and we also going to push people too much further but just to need to do something to improve the links onto the make the point. footbridge.

12183. LORD BROOKE OF ALVERTHORPE: 12191. LORD JAMES OF BLACKHEATH: Miss Could we see the rest of the letter again. (After a short Millett, if I was a mugger would I not be delighted to pause) I apologise but I did not go on the visit and I have a mirror because it would help me to see my am struggling a little bit and I am really trying to victims coming? identify what you are after. I understand there is an (Miss Millett) The point as well about the bridge if oVer from Crossrail to do some lifting and then— you are a mugger is you do quite like it at the moment because you can escape basically because there is a lot 12184. LADY BRIGHT: What we are after is to of fear of crime around it people do not tend to use speed it up a bit basically. the bridge after night which means, yes, if you are a mugger you can just run over the bridge and then you 12185. LORD SNAPE: To speed it up a bit? are away. What we are asking for is improvements to the bridge to increase the usage on it so it also 12186. LADY BRIGHT: In this letter we do not increases the natural surveillance to deter muggings know when it is all going to be done, do we. It is happening. A mirror is going to help people see who somehow going to be slotted into the programme and is on that bridge, so yes it is going to help a mugger the Sustrans money will have to be spent to do and it is also going to help you or I who are not something about the middle. Crossrail is doing a bit muggers. It is going to help me see there is a mugger at the north and at bit at the south. on the bridge and I will turn round and walk oV it the other way. 12187. BARNONESS FOOKES: I was on the site visit and I got the impression that one of your 12192. LORD JAMES OF BLACKHEATH: The anxieties was what I call the ‘dog leg’ which reduces logic of all this is to take the bridge down. visibility and therefore is an incitement to crime, as (Miss Millett) This is one argument which we would it were? also strongly not want to see happen because the bridge connects two communities that are divided, as 12188. LADY BRIGHT: Yes, absolutely. you have already heard, by the Westway and by the railway lines. For those of you who went on the site 12189. BARONESS FOOKES: Could you just visit you will know that on the north side of the expand on that? footbridge whilst it is a very deprived area there has (Miss Millett) In one sense we are grateful for this been so much regeneration happening there. We have letter from Network Rail where they say on the south got the new academy, a brand new youth centre, two side of the bridge they will put a ramp in to make it health centres, shops, the footbridge is really needed Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas11 Residents Association to connect those communities. We just want to see it copies. There were nine crimes on the footbridge, improved and used more. well, in and around the area of the footbridge since January 2007. Of those, eight involved crimes being committed on one side—sorry, this has changed due 12193. LADY BRIGHT: There is a very high to data I got this morning, so crimes two and three proportion of disabled people, are there not, and the should actually be under the second heading, ‘Using poverty indicators, people are not going to run and the bridge to make a getaway’. There was one crime hop on to a bus because it does not take you where actually on the bridge which was someone smoking you want to go. It is about a 650-metre detour so if drugs and then there were eight other crimes or you are school girl coming from the Villas and you incidents where the bridge was used to make a want to go to the Academy, for example, you have getaway for another crime conducted on one side of got to walk down to the new crossing at Royal Oak. the footbridge. The Council has just got rid of the underpass which was there to provide a safe crossing across that main Harrow Road. They got rid of it because everyone 12198. LORD SNAPE: But would a brand-new was afraid to use it, so they brought the crossing up, bridge make any diVerence as far as those crimes are in consideration of the schoolchildren’s needs, to concerned? If a suspect made oV over the footbridge, ground level, but it is a horrible crossing to have to do then it does not really matter whether it is a new or an and it is a 650-metre detour. Therefore, we are old footbridge; they are going to make oV anyway, looking for a bit more joined-up thinking here, I are they not? think. The initial reaction, as I have said to the (Miss Millett) What we are saying at the moment is Committee in the other place, was, “Well, this has got that at night it is very dark and, to put myself in the to be fixed. Just ask the Promoter to replace it”. The mind of a mugger or someone, you could make oV Promoter is Transport for London after all, so why and think, “Well, no one uses that footbridge, there are we having all this roundabout argument over is no CCTV on it and no one is going to see me, so whose bit is which? That has blighted it for the whole then I can be oV and I can be in the estate or I can be of its life, has it not, that whole question? Arguments on the Westbourne Park Villas side and I am away”, between Westminster City Council, Network Rail whereas, if it was a bridge that was more visible from and Crossrail, they should not be our business, the road and from the bridge and it had CCTV on it, those are— then I would think, “Well, I’m not going to run over it because people can see me going, the CCTV can pick me up”. 12194. CHAIRMAN: Lady Bright, I am looking for a gap so that we can go and have some coVee. There 12199. Forgive me, but, if you are going to get from is going to be plenty of opportunity for you to make one side of the railway track to another to disappear comments on this at the end, but at the present either at the Westbourne Park Villas side or the estate moment you have got a witness in the witness box on the other side, does it really make any diVerence and I wonder how long it is going to take before we whether we have a new bridge, an old bridge or can release her. CCTV? Those crimes there, most of them were not actually committed on the bridge, but the bridge is 12195. LADY BRIGHT: I would say five minutes. used as a getaway. Would that not still be the case even if there was a brand new bridge? I think my colleague was being facetious, but I can see his point. 12196. CHAIRMAN: Well, you ask her questions If you took the bridge away, the mugger would not be and then we will let Ms Lieven ask her questions and able to make oV anywhere, would he? then we can take a break. (Miss Millett) That is true. You are right, the facts on their own speak for themselves and, when the bridge 12197. LADY BRIGHT: I did want to ask Claire was shut, there were fewer incidents in that area. questions and to let you have the opportunity as well However, what we are saying— to interpret the crime figures. There was a specific request from Lord James on the visit to have some 12200. LORD SNAPE: You are giving the figures for crime on the bridge. Claire, I am going to Committee ideas now, you know! ask you to pretend to be a policeman here really. (Miss Millett) What we are saying is that that bridge What is the story about that? is so important and, rather than doing away with it (Miss Millett) Well, I asked our local Safer altogether, we need it to be improved and for it to be Neighbourhood team to give me the crime figures for made a less attractive option for muggers and the last year. They actually went back further than criminals to use to get away and it seems to me that that to January 2007 and I think this has been 11 circulated amongst you, but, if not, I can provide Westbourne Park Footbridge (SCN-20080507-011) Committee Ref: A64, Crime statistics on or around the Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Hammerson (Paddington) Limited and Domaine Developments Limited the sensible way of going about making it a less (Miss Millett) But that is just the crime element. Then attractive option is by improving it in the ways we you have got all the people that would feel they are have already described. unable to access all the facilities—

12201. LORD JAMES OF BLACKHEATH: But, 12206. I am only talking of at night, not during the in a way, you want them to get away to stop doing day. I have my suspicions that there are certain places what they are doing which is mostly interfering with where people do not go at night, no matter what the motorcars in Westbourne Park Villas at the you do. present moment, so you want them to go. (Miss Millett) At night the academy have all their sports provisions which run throughout the evening, 12202. LORD BROOKE OF ALVERTHORPE:I there is the Stowe Youth Centre that runs throughout can see the reason why it is used during the day, the evening. These facilities are for people on both particularly with the new academy and the rest of it, sides of the bridge and it would be such a shame if but could you tell me if you have any statistics on the they could not— use, say, from seven o’clock in the evening to seven o’clock in the morning? 12207. So it is being readily used at night then? (Miss Millett) I do not have any hard data at all. (Miss Millett) It is being used to an extent where What I have got is anecdotal evidence and that is that people go together. They have to think about it very the community, the law-abiding community, do not carefully, like, “Do I want to risk going over the use it, they do not want to, they are fearful of using it. bridge?” I am not saying nobody uses it, people do use it, but they do not use it enough and I think they 12203. And you presumably will not have any would use it more— evidence that in fact more use will be made of it in the future if in fact these enhancements were made? 12208. BARONESS FOOKES: It is not realising its (Miss Millett) Again only anecdotal evidence that full potential. people would like to use it and they say, “We would (Miss Millett) Exactly. It would be used a lot more if like to”. For example, when we have our meetings, it was a nicer bridge. our ward is bisected by the bridge, so we have to have our meetings on one side of the bridge or another. 12209. CHAIRMAN: Lady Bright, I think we will You can see the residents that live on the other side, have to have a pause, otherwise the coVee will have they do not want to come, they do not want to have probably gone away! to walk over the footbridge on their own and we have to pair them up together and make sure everyone feels comfortable going over this bridge for our own The witness withdrew evening meetings, whereas again, if it was more lit and it was transparent, they would feel comfortable After a short break doing that on their own. That is just a small proportion of the population and you can imagine 12210. CHAIRMAN: Ms Lieven? everyone else would feel the same as well. 12211. MS LIEVEN: I think, my Lord, the 12204. Really most of these crimes in a sense could be agreement is that we are going brieﬂy to interpose Mr solved by putting a lock on a gate, putting a gate on Walker from Bircham’s to make a brief statement at either end at seven o’clock at night and locking it. about Hammerson’s and where they are at. I think (Miss Millett) To answer your question, yes, in terms this was agreed with your Clerk a little earlier. of the crimes, but then that would be detrimental to the community that want to use it. That is penalising the upstanding residents as criminals. 12212. CHAIRMAN: Yes, it was.

12205. I am just trying to ﬁnd a solution to the 12213. MS LIEVEN: So I will hand over to Mr problem you have presented to us. It looks to me Walker. that, if you examine it, it could be cured by other solutions. The smoker taking his drugs will smoke 12214. MR WALKER: My Lords, I would just like somewhere else because he could not be on the to read a short statement which encapsulates the footbridge, so that reduces by 30 per cent the actual agreement we have reached with the Promoter. My crimes reported on there, and the remaining ones, name is Angus Walker from the ﬁrm Bircham Dyson four to nine, would not exist because it would be Bell. This will mean that we will not have to trouble locked. you later this afternoon. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12215. CHAIRMAN: I knew that and it is very 12226. CHAIRMAN: It will have to be a deed, will happy news for everybody, I am sure. it not, because, otherwise, it is not going to be able to be assigned? 12216. MR WALKER: I am sure you appreciate that this is the tip of a very large negotiation iceberg 12227. MR WALKER: In that case, there will be a which has been going on for the last few months, deed, yes. Thank you for your assistance! indeed years. The agreement is as follows: 12228. CHAIRMAN: Anyway, that is happy news 12217. “If the Paddington ‘Triangle’ site, which is and I am delighted that you have been able to tell us parcels 88, 89, 89a and 90 in the City of Westminster, about it. is acquired by the Promoter for Crossrail, all of it will be acquired. 12229. MR WALKER: Thank you very much.

12218. “The Promoter will consult with Hammerson 12230. LORD JAMES OF BLACKHEATH: Mr and Domaine as to the siting of the taxi ramp that she Walker, is there any formula attached to this for ﬁxed intends to build on the site. price at ﬁnal transfer?

12219. “If London Underground Limited has not 12231. MR WALKER: Any formula? elected to commence its works on the site within three years of the practical completion of the ramp, then 12232. LORD JAMES OF BLACKHEATH: Yes, the Promoter will oVer the land back to Hammerson is there any formula agreed for the ﬁnal transfer? Are and Domaine in the ﬁrst instance. there any price formulas attached?

12220. “If London Underground has elected to 12233. MR WALKER: There is no price settled as commence its works on the site within three years of yet, no. That will be decided in the absence of the practical completion of the ramp, then the agreement by the Lands Tribunal. Promoter will oVer the land back within ﬁve years of such election. 12234. MS LIEVEN: It will all be done, my Lords, under the normal provisions of the Land 12221. “The land that is oVered back will be the Compensation Scheme and normal valuation greatest interest that can reasonably be re-granted principles. There is nothing special here. and will include the air rights above and below the ramp. 12235. LORD JAMES OF BLACKHEATH: It sounds good when you say it that quickly! 12222. “This agreement is capable of assignment by Hammerson and Domaine to another company or 12236. MS LIEVEN: Mr Mould will be handling joint venture which must be a property development the details of that, not me. company with experience of undertaking property development, able to demonstrate a successful record 12237. CHAIRMAN: There was nothing else to be of delivering and undertaking commercial interposed, was there? development schemes of the size and nature envisaged on the site (including assessment of 12238. MS LIEVEN: No, my Lord, that was the experience in development in an urban area over, or only thing, I think. Just so that your Lordships know in conjunction with, railway infrastructure), and able where the day is going, I understand that Land to demonstrate that it will commit the resources, Securities have reached agreement and will not be skills and experience in developing over railway appearing, and the same for Moor House. All it says infrastructure needed to take the development is that they are not appearing, but I assume that forward.” means that we have reached agreement.

12223. That is the end of the statement. Thank you 12239. CHAIRMAN: Well, you are in the process of very much. trying anyway, are you not?

12224. CHAIRMAN: This is going to be in the form 12240. MS LIEVEN: Yes, and they are certainly not of a deed, is it? appearing. My Lords, can I just explain where we have got to? Lady Bright and I had a very rushed 12225. MR WALKER: It will certainly be either a conversation over the coVee break on the footbridge contract or a deed. and I think the position is that Lady Bright and the Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

992 committee on the crossrail bill: evidence

7 May 2008 The Petition of Westbourne Park Villas Residents Association residents accept that we are not going to go any stage, but we will work with Network Rail and with further in terms of physical works than we have Westminster to bring forward an appropriate already agreed to and, just to remind the Committee, scheme. that involves raising the span on the north side so that the middle step goes, doing a ramp on the south side, which means that the bridge is fully accessible in 12249. CHAIRMAN: And with the liaison group, terms of disabled access— I hope.

12241. CHAIRMAN: And the step in the middle. 12250. MS LIEVEN: And obviously with the liaison group as well, and what Lady Bright and I 12242. MS LIEVEN: Yes, the step in the middle, as were discussing was that we will do so with I have mentioned, and lighting. We have already reasonable expedition, but taking into account the agreed to light the bridge. I think Lady Bright’s prime Crossrail timetable. concern is that all these things come together, the Network Rail work to the bridge, the Sustrans funding, that they are all put in together. 12251. LADY BRIGHT: I think we would like a date on when they have to bring forward the joint scheme, the detailed scheme, not to do it, but to at 12243. CHAIRMAN: Certainly that is our concern least have a detailed plan. because there are so many people involved in this, so many organisations involved in this, that co- ordination is badly needed. 12252. MS LIEVEN: The slight diYculty with that is that of course I cannot give any commitment on 12244. MS LIEVEN: Absolutely, my Lord. behalf of Network Rail, I am not instructed here on behalf of Network Rail, so I simply cannot, but it 12245. CHAIRMAN: And, what is more, a certain would appear to me, given that we are talking about amount of expedition, I would have thought. works in 2012/13, obviously if we could do the work next year, we would bring the joint scheme forward 12246. MS LIEVEN: Well, I think the reason I am quicker, but there is not very much point rushing into on my feet is just to try to cut to the chase on this and the joint scheme when you know that the works are perhaps save a little time. My instructions are that the not going to be done until 2012/13, so that is the kind north span will not be raised, on current programme, of timescale we have in mind. until about 2012/13, but we are happy to say to the residents that we will work with Network Rail and 12253. CHAIRMAN: Lady Bright, I think that is that together will be brought forward with probably as far as we can get on the footbridge. It is reasonable expedition, but taking into account the not as quick as you would like, but, on the other timetable of Crossrail because there is no point hand, it may be a little progress. having a scheme which is in advance of the northern span being raised, and we will work with Network Rail to bring that forward obviously in consultation 12254. LADY BRIGHT: Is it asking too much to with the local authority and, through them, with local actually require the Promoter and Network Rail, if residents. we name the parties in this, to bring forward a joint scheme that involves Westminster and Sustrans so 12247. CHAIRMAN: What about the ramps and that we specify who is going to be involved and ask the lighting? them to do it before the Crossrail works start, to bring forward that scheme so that we at least know 12248. MS LIEVEN: My Lords, let me just take what is going to happen? I do not mean build it, but instructions, if I may, for one moment. (After taking I mean to be sure and clear. instructions) My Lords, the ramp will be done at the same time as the raising of the northern span because, 12255. BARONESS FOOKES: I would not have until the northern span is raised, it is not a DDA- thought the Promoter could give an undertaking on compliant bridge in any event because you have still behalf of an independent organisation. On the other got the steps in the middle, so the two things will be hand, it is certainly open for us, if we so wish as a done at the same time. The lighting we will discuss committee, to make our views known. with Westminster because there is going to have to be a lot of work to the south side of the bridge and it may well not make sense to put in expensive changes to the 12256. LADY BRIGHT: To ask them to do it bridge before that work is done because you might together and then they are just going to have to sit have to rip it out again, we just do not know at this down and agree it together, are they not? Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12257. BARONESS FOOKES: Yes. 12270. MS LIEVEN: Certainly, my Lord. I was going to call Mr Berryman ﬁrst to explain the 12258. MS LIEVEN: I could not have put it better, engineering and then Mr Thornely-Taylor to explain my Lady. I cannot commit Network Rail to the consequences of the engineering. anything, but I am absolutely sure that, if a parliamentary committee puts in a strong request MrKeithBerryman, recalled that the Promoter and Network Rail work together Examined byMsLieven to bring forward a joint scheme and that is then consulted upon with Westminster and the liaison 12271. MS LIEVEN: My Lords, there are two issues group, I am sure all the parties will follow that which are outstanding: one is the noise from the recommendation. I see no possible reason for them trains going into the batching plant and the other is not to do so. the noise barrier issue. Let us start with the noise source, which is the noise from the trains going into 12259. CHAIRMAN: I think that is good. We have the batching plant and the works that Crossrail are still got to deal with the boundary wall. doing in this location. Mr Berryman, can we turn to the site plan, which I think is 027, and can you just start oV by explaining on that in broad terms what is 12260. MS LIEVEN: Yes, my Lord, we have still happening in this location and then we will come to got noise and the wall issue. I do not know if that is look in detail at where the EWS trains are going to the end of the Association’s evidence. go? 12 (Mr Berryman) Could I have the next one, please? I 12261. CHAIRMAN: Is that all your evidence? have got the wrong numbers on my exhibits. That is 028. The works in this area consist of the tunnel 12262. LADY BRIGHT: Our main concern is that portal and a ventilation shaft just here (indicating). we get some more information, which we will get The tunnel portal is where the tracks emerge into from the Promoter’s team on precisely what the fresh air; in other words, there is air above them and framework is, whether Network Rail is, for example, at that point the tracks will be about seven metres or bound by the noise code and everything else, so so below ground level. The section between what we clearly fundamental information like that. call the tunnel portal, which is where the trains emerge into the air, and the tunnel eye, which is down 12263. CHAIRMAN: What are you talking about, here (indicating) --- The tunnel eye is where the actual the wall? tunnelling starts because to tunnel you have to have a certain amount of ground over the top of the tunnel 12264. LADY BRIGHT: Not on the wall. Do you otherwise the tunnel falls in; it does not work. We want me just to focus on the wall at this point? have to construct a section of that in cut and cover where we dig a big hole out and then13 we put a concrete slab over the top of it and the trains will 12265. CHAIRMAN: I just want to know what you come up through there and emerge into daylight here are talking about, what topic. (indicating). Could we have number 027? They will arise up from that portal to a point about here where 12266. LADY BRIGHT: I have done what I can on they will be at ground level. They will be in an eight going through the headings of the items that we are metre deep trench down here somewhere rising up to concerned about. I have asked for information from being at ground level at this point (indicating). the Promoter on how to deal with this overlap between Network Rail and Crossrail and I cannot 12272. Just stopping there, in respect of Lady really make a proposition as to exactly what we are Bright’s house, which is just over here, what is the asking for if I do not know what the information is. eVect of the fact that the train is dropping down in Would it be better to go straight to their evidence? towards the portal? (Mr Berryman) That will provide to some extent a 12267. CHAIRMAN: Have you got any more shielding of the noise. Most of the noise generated by witnesses? trains—Mr Thornely-Taylor is an expert on this but I know a little bit about it—is at the rear wheel rail 12268. LADY BRIGHT: No. interface or from the electrical plant which is underneath the train. The noise tends to come from a lower point on these kinds of electrical multiple units. 12269. CHAIRMAN: If you have not then the next thing to do is to invite Ms Lieven to call Mr 12 (WESTCC-56 04-028) Thornely-Taylor on the noise and Mr Berryman on 13 walls. (WESTCC-56Crossrail Ref: 04-027) P79, Royal Oak Portal—Crossrail proposals Crossrail Ref: P79, Westbourne Park—Crossrail proposals Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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14 As the trains go down into that trench a lot of the happy to do that if you want, but I think perhaps a noise will be shielded. This is in contrast to the diesel brief resume would be more sensible. Could I have trains which are used for freight and for the high number 010 up, please? Number 10 is an aerial speed train where the noise is generated near the top photograph of the site. I think it is worth mentioning of the vehicle. whilst this one is still up that this is the site of the existing batching plant. Where it says “Proposed 12273. CHAIRMAN: It is the exhaust stops, is it discharge hopper” is the existing site of the artists’ not? studios. You can see a line here where it says “End of (Mr Berryman) It is the exhaust noise, yes. headshunt in new proposals” and that is the furthest point at which diesel locomotives will be able to go in 12274. MS LIEVEN: Lady Bright made some the new arrangements and you can see down here mention of constraints for the construction of “End of headshunts in the existing situation”. The Crossrail going along these tracks past Westbourne current freight trains which are delivering to the Park. Can you just explain what is going on there? batching plant come down the mainline, turn into the (Mr Berryman) During the construction of the sidings and go right down to here and then they tunnels the excavated material from the tunnels will manoeuvre and bring the train back into short be brought out from underground by a conveyer and sections to be unloaded here. What will happen in the it will be delivered to a point here (indicating), more new arrangements is that the furthest point that the or less where the artists’ studios are at the present locos will come to is here (indicating). They will not time and from there it will be loaded onto trains and be able to go beyond there because the corridor is not the furthest those freight trains will come down is wide enough. We have devised, together with approximately here, very close to the footbridge that colleagues from the operating side, the method of we spent a little time talking about. There will not be working with this and established that this does work any of those kind of freight trains going down here. quite satisfactorily. People who live down this road What there will be will be small, narrow gauge trains here will no longer have the diesel trains going which are used for the delivery of concrete segments backwards and forwards in front of them. As has and other materials into the tunnel and there will be been mentioned earlier, some of these trains run at about three or four of those a day, they will be fairly night. They are not particularly frequent. We believe slow moving as compared with ordinary trains, so there are only about three a week. At least they will they generate correspondingly less noise in that be gone. respect. 12278. Let us move on to the issue of the noise 12275. CHAIRMAN: What are they powered by? barrier, please. Can you just explain what work we Are they diesel? have done in respect of the height of the noise barrier15 (Mr Berryman) Yes. They will be going down into that would be required and the diYculties of that trench --- Sometimes they are powered by providing that? battery. On the Jubilee Line we used entirely battery (Mr Berryman) Could I have number 024, please? power, so it can be done with batteries. We have not The wall which currently exists on this road is a brick speciﬁed what the builder must use. wall built probably in Edwardian times. We have had our structural engineers do some calculations— 12276. BARONESS FOOKES: Will that be quieter? 12279. Can I just stop you for a moment so we (Mr Berryman) Batteries would be quieter. The understand what we are looking at? On this plan the diesel trains are not like big mainline locomotives; yellow is the existing wall, is that right? they are relatively small units. The tendency is to go (Mr Berryman) That is correct, the yellow is the to more electric and battery power simply because of existing wall. This is the road here with the residences the regulations about nitrous oxide in the air and it is on the other side (indicating). The railway is cutting very diYcult to control that in tunnelling. It could go down here and the wall is partly a brick retaining wall either way. In either case I would not have thought it and then partly the wall which you can see from would be particularly noisy. Westbourne Park, which I think most members of the Committee saw when we went down on the visit. We 12277. MS LIEVEN: Let us move on to the have done an analysis of that in accordance with batching plant trains. I am going to leave it to you to BS5628, which is the appropriate British Standard, explain by reference to the exhibits what is happening which shows that it has a safety factor at present of in respect to these trains. 14 (Mr Berryman) Unless your Lordships want, I do not discharge hopper, existing and new headshunts (WESTCC- 40 04-010) think a full explanation of the train operations in this 15 Crossrail Ref: P79, Proposed positions of Tarmac Topmix area would be a very useful use of your time. I am (Provisional) (WESTCC-40 04-024) Crossrail Ref: P79, Schematic details for an Acoustic Wall Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association about 1.4; in other words, the stresses induced in the 12284. CHAIRMAN: Is it within the limits of wall are greater than the loads which one experiences deviation? I suspect it is not. You cannot do any work by a factor of about 1.4. The wall is not going to fall on this under the Bill, can you? over. We did some calculations of the impact of extending the wall just by sticking something on the 12285. MS LIEVEN: Where we got when we top which is four metres high and we came there to a investigated was that some of it was and some of it figure that the wall would be overloaded by a factor was not. I do not think the entirety of it is. To some of eight; in other words, the stresses induced in the degree we are not relying on that technicality because wall would be eight times the permissible stresses. we could ultimately promote a separate order or something. It just does not work quite apart from 12280. LORD BROOKE OF ALVERTHORPE: that. How high? (Mr Berryman) Four metres. The reason is that the 12286. LORD JAMES OF BLACKHEATH: Ms stresses in a wall like this go as to the square of the Lieven, if some of it is and some of it is not, could you height, so if you double the height you increase the define that between horizontal and perpendicular, stresses by fourfold. During the giving of evidence by please? Sir Keith Bright he suggested that a wall of 1.5 metres would be satisfactory and I did a bit of structural 12287. MS LIEVEN: Not straightaway, my Lord, engineering (I am actually a structural engineer) and but I can try and find somebody behind me who can came to the conclusion that that would, roughly work it out. speaking, overload the existing wall by a factor of (Mr Berryman) The limits of deviation are set in two. The point I am getting to is that just sticking plan. It is a question of where the lines on the plan are something on top of this existing wall does not work drawn which shows where it is. even if it is only 1.5 metres tall; the wall is simply not strong enough to take that additional load. Whatever height we did, we would have to independently find 12288. LORD BROOKE OF ALVERTHORPE: such a screen or a noise barrier and that would either Did Ms Lieven not say that there is a possibility there mean doing something on the street side, which could be some acoustic work done in the flats at a would be possible—it would need to be piled and it later stage if in fact the noise levels were found to would need substantial steel work—or something on be high? the railway side, which is what we have drawn on this (Mr Berryman) I think Mr Thornely-Taylor is better sketch. Obviously there has not been detailed qualified than I to talk to that, my Lord, but certainly designed but it has been looked at by our structural that would be an alternative approach. Mr Thornely- engineers Messrs Scott Wilson and we are reasonably Taylor will cover it in due course. The point that we confident that some structure of this sort would be would make is that the noise levels at the time when needed. We estimate that for a four metre high wall the railway opens are not known. There has been a the total cost of building this structure on the whole recent significant change in noise levels in this area length of that wall would be about £5 million. For a and there are likely to be more significant noise 1.5 metre wall it would be much less, but I do not changes before we build the railway; after all, it is ten know how much less it would be. Although the years in the future. barrier itself only costs something like £600,000, the structure which would be needed to hold it up would 12289. What is the maximum height at which a cost very much more than the barrier would. barrier could be put on top of the wall without the need for all this very substantial additional expenditure? 12281. LORD SNAPE: Are you saying you do not (Mr Berryman) The current factor of safety is approve of Sir Keith’s £90,000 somehow or other? roughly 1.4. The factor of safety with a 1.5 metre wall (Mr Berryman) No. is about 0.5. We could start drawing a graph and establish what is the maximum that we could put up 12282. I saw you wince a bit! but it will not be very much. (Mr Berryman) In civil engineering terms £90,000 does not go very far. 12290. MS LIEVEN: If you were to build the retaining part of it, the steel columns on the pavement 12283. CHAIRMAN: It is not your wall anyway. side and then stick a noise barrier up above—I know (Mr Berryman) It is not our wall anyway, it is you are not a planning witness but I will use you, if Network Rail’s wall. I have to say, we have not run I may, to answer this question—is that likely to raise this past Network Rail at all so we have no idea what issues with the council about the impact on the their reaction would be. Conservation Area? Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association

(Mr Berryman) As you will know, the wall does add 12295. LORD BROOKE OF ALVERTHORPE: signiﬁcantly to the Conservation Area; it is rather an Could I just interject with another question? attractive wall in fact. I think the local authority would have concerns about the impact of such a 12296. MS LIEVEN: I think I am not going to be barrier or wall on the Conservation Area, in able to answer the question about whether the wall is particular on this wall. within the limits of deviation straight oV, so those are all my questions, Mr Berryman. 12291. What about the impact on trees of putting the barrier up there? 12297. LORD JAMES OF BLACKHEATH: Mr (Mr Berryman) This is for a four meter barrier. If you Berryman, we are concerned about the number of put a shorter 1.5 metre barrier up you probably leaves on the line. Can you tell us: are these the right would not need to do what is shown on this cross- sorts of leaves or the wrong sorts of leaves? section to the trees. You might get away with it (Mr Berryman) As you may know, Network Rail without too much diYculty. have been making strenuous eVorts to chop down all the trees which give oV the wrong sorts of leaves. I 12292. Let us move to the possibility of putting16 the really do not know, I am sorry. steel retaining structure on the side shown in this drawing, that is the railway side. Can we just put up 12298. LORD JAMES OF BLACKHEATH: We a photograph taken from the railway side? Can you have not got a third rail there either, have we? just explain what diYculty, if any, there would be in (Mr Berryman) There is no third rail at all on the supporting an acoustic barrier on top of the wall north side of London, my Lord. from the railway side? (Mr Berryman) The diYculties would be exactly the 12299. Has anybody given any thought or any same. It is a mirror image whether you put it on one costings, or would it be feasible to simply put bricks side or the other. The stresses induced in the wall will on top? be identical. To take the load down to an adequate (Mr Berryman) That would give us exactly the same load bearing position you would need to put the problem as putting a steel structure on the top, my columns down to roughly the level of this track bed Lord. The thing which governs this kind of wall is the (indicating). There would be major issues with this. I wind-load. Whatever kind of structure you put up it think Network Rail would be unhappy about this. As will still attract the same wind-load. you can see from the photograph, the wall actually supports a number of their communications cables and they would need to be rerouted and so on. On the 12300. I know from personal experience: I have a wall railway this tends to be a very expensive and complex and I have had it raised, and there was a point beyond operation. So I think there would be diYculties with which we could not go but the foundations were that. There is also a track here which I think is the suYciently strong, actually, to put numerous layers empty carriage road which is used to bring—I had on top of the existing wall. (Mr Berryman) better not say that, my Lords, because I am not If a masonry structure is taking a absolutely sure, but I think this track is in regular use. purely vertical load, the weight of the wall, you can built it very, very high indeed, but it will soon blow over, I am afraid, my Lord. 12293. CHAIRMAN: It does look very used. (Mr Berryman) This one is certainly used, my Lord. That one may or may not be; I am not sure you can 12301. I am in Brighton with very strong winds tell from this photograph. indeed and it has not blown over so far, and I was assured it would not blow over. (Mr Berryman) How tall is it, my Lord? 12294. MS LIEVEN: Assuming that the track next to the wall is not used very much at all but the one closest to the photograph is used, if one was going to 12302. It is under the statutory height of two metres. put the retaining structure on this side—on the (Mr Berryman) My Lord, this wall is already 2.5 trackside—would that involve possessions of the metres tall. railway? (Mr Berryman) You would certainly need to take 12303. LORD BROOKE OF ALVERTHORPE: possession of the adjacent track; you probably would Point made. not need the whole width. You certainly would not need the whole width but you would need to take 12304. MS LIEVEN: I think, perhaps, we will leave possession of this track. that wall where it is. Mr Berryman, I think those are 16 all the issues I need to cover with you. Thank you 20080507-015) very much. Crossrail Ref: P79, View of retaining wall from trackside (SCN- Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12305. CHAIRMAN: Lady Bright, do you want to (Mr Berryman) I could not comment on that, Lady ask any questions? Bright. What I can tell you is that one-and-a-half metres would make the wall fall over unless it was 12306. LADY BRIGHT: I would like to ask a few given substantial foundations of some sort or questions, please. another.

Cross-examined byLadyBright 12314. The principal objection to that is cost. (Mr Berryman) There are several objections. There 12307. LADY BRIGHT: Mr Berryman, if you were are objections of cost, there are objections on the needing to build a railway wall in this location—if Conservation Area grounds—I cannot imagine that you were doing that now, in other words—and you Westminster City Council would be relaxed about suggested building it another metre-and-a-half or a such an impact on the Conservation Area. couple of metres higher, how diVerently would you specify the building of it? 12315. You cannot speak for the local authority on (Mr Berryman) In other words that would take it this. from 2.5 metres high, which is the approximate (Mr Berryman) I cannot. height of the wall now, to four metres, we would either do it in reinforced concrete, which obviously is able to take tensile stresses as well as compressive, or 12316. LORD JAMES OF BLACKHEATH:A we would put—probably more likely—concrete question please, Mr Berryman. As compared to the columns at intervals along it, and then have the brick wall going up, what are the implications both in terms panels between the concrete columns. It would be a of its stability and its sound resistance if it gets diVerent design altogether. thicker? (Mr Berryman) Making the wall thicker, obviously, 12308. So you do not think it is adaptable. would make it more able to sustain lateral loads, my (Mr Berryman) The present design, which is purely Lord, but the point there would be that you would brick, unfortunately, is not adaptable in that way. have to ﬁnd a way of bonding into the existing wall, which is not particularly easy, and you would have— 12309. Can you tell us what assumptions you have made about the weight of the four-metre barrier you 12317. Could you not have the facings? have been describing? (Mr Berryman) You would have to found the (Mr Berryman) The weight of the barrier is actually additional thickness on something; you could not just immaterial, Lady Bright, because the loading of it is stick it on the front. easily able to be sustained by the brickwork—that is absolutely no problem at all, as I have just explained 12318. You cannot just stick a facing on with to their Lordships. Superglue? (Mr Berryman) I think the answer to that question is 12310. It is purely the wind-loading we are talking almost certainly no. People have been about. experimenting— (Mr Berryman) It is the wind-loading which is the issue. 12319. I am intrigued by the qualiﬁcation “almost”. 12311. That wind-loading issue applies whatever the (Mr Berryman) Well, the reason I say “almost height of the barrier? certainly” is that I know that one or two academic (Mr Berryman) The wind-loading goes up, as I said institutions have been doing experiments with earlier, as the square of the height. So if you double sticking carbon reinforced— the height you increase the wind-loading four fold. 12320. Listening to Lady Bright’s questioning, the 12312. I think you would accept that there would be area we have not discussed is actually the quality of some argument about the acceptability of the wind- the material and the thickening of it as opposed to loading on a lower barrier. We are only talking about just scaling the sound out with height. a metre-and-a-half here. (Mr Berryman) It is really the strength of the mortar (Mr Berryman) No, there would be no doubt about which is the crucial thing. The bricks themselves have that, Lady Bright; it is a matter of simple a bearing on it but the mortar is the crucial thing. We mathematics. have taken the mid-range from BS5628, which is probably a slightly optimistic assumption because 12313. One-and-a-half metres would reduce the this is pretty old mortar; it has been there the thick sound by 3 decibels—halve it. end of a hundred years. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association

12321. The mortar would not be a factor if you faced because we still do not have the noise data to know both sides of it with bolted-on, or some other way, precisely what problem we are supposed to be fixed plates of very sound-resistant material. solving. It must go back to that. Is that not correct, (Mr Berryman) My Lord, that would not help Mr Berryman? because when the wall fails it will fail as a piece; it will (Mr Berryman) As I said, Mr Thornely-Taylor is not sort of bend in the middle, it will just fall over at better qualified than I to answer that question, but I the point of highest stress, which is at the bottom of think what their Lordships are already aware of, as a the wall. That is where the tensile stresses— result of the site visit, is that the noise in that area has recently significantly reduced because new trains 12322. A plate on both sides would not provide a have been put in. The point is background noise compensating stress. levels change over time, and if we had done this work (Mr Berryman) Not really, no. You could do it in one a few months ago the background noise level in your direction but not the other. property would have been extremely high (I think you would agree with that) and it is now somewhat 12323. I could not even manage my Meccano set so I lower. I am not saying it is low but it is lower than it should not be asking any questions, but I am was. So, the timing of when noise measurements are fascinated by the fact that we seem to have had a made is relevant to the level which will be relatively narrow discussion on what is a very experienced. important point. I am trying to broaden it into something I might be able to understand. I am 12328. Would you agree, Mr Berryman, there are surprised that Lady Bright has not been pursuing you other changes in the pipeline—you have mentioned on something similar with better knowledge. this—further down the years before the trains start (Mr Berryman) My Lord, if you were to put what we running which will aVect the noise environment again call “flats”—steel flats—down on, say, this side of the and reduce the noise, probably? wall, it would stop the wall falling over towards (Mr Berryman) They may do. It is very hard to say Westbourne Terrace, but it would not help you with for sure what impact some of these things will have in the wall falling over into the railway. the future. You are probably aware of the so-called Intercity Express project which is planning to bring 12324. I would be thinking of something more like a new Intercity Trains onto the network. They are out very large acoustic tile. to tender, I think, at the moment, but we do not know (Mr Berryman) I am not aware of anything which yet what the noise level will be from that. can strengthen a masonry wall in that way, my Lord. As I was saying earlier, there has been some 12329. Is it true they may be electric, do you think? experimental work done on strengthening concrete (Mr Berryman) It is possible. Technical opinion is walls by bonding carbon reinforced plastic to the face divided on that matter, at the moment. of the wall, but that is really at an experimental stage at the moment. 12330. You probably know as well as anyone when we might know about that. 12325. The thrust of my question is, as it is on so (Mr Berryman) I would not like to hazard a guess many of these occasions with us here, that we get the about another person’s project. I do know that they question and we get the answer but what always are in active discussion with manufacturers at the fascinates me is the answer to the question that has moment, and the result of those discussions will no not been asked. That is all I am trying to probe for. doubt lead to a decision on electrification or (Mr Berryman) Indeed, my Lord. I cannot really help otherwise. you there, I am afraid. It sounds like a Zen question, if I may say so. 12331. Could I ask you what you know about this detailed noise study that your colleagues have been 12326. LADY BRIGHT: Just to finish on this height promising us? business, what height barrier could that wall sustain? (Mr Berryman) I think the best person to ask that is (Mr Berryman) As Lord Brooke asked that question Mr Thornely-Taylor. earlier on, without extra calculation I could not tell you but it would not be very high. 12332. I concede you say that but I thought you would know if there was another set of studies to be 12327. Everything you are telling us is ruling that out done because it would aVect the way you approach and we have not got engineering data to respond to this end of the track. how you might deal with the barrier on that location (Mr Berryman) It could be done, yes. There will and done in that way. We did not come here to certainly be other studies to be done between now specify exactly how the noise barrier should be made, and when the railway opens. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12333. So you are not clear about the scope of the (Mr Berryman) I do not think that is what I said. study that Crossrail is proposing to do, because it does aVect the noise barrier—what this study is 12340. BARONESS FOOKES: We already have looking at. The detailed noise study that I keep the noise expert here in the room able and willing to banging on about. give evidence. Surely that meets your point, Lady (Mr Berryman) The detailed noise study will really be Bright? to do with measuring background noise and forecasting what future noise levels will be and what 12341. LADY BRIGHT: Yes. remedial action, if any, needs to be taken. As I keep saying, Mr Thornely-Taylor is far better qualiﬁed 12342. MS LIEVEN: I have no re-examination, my than I to answer that question. Lord Chairman.

12334. I must press you on this: do you understand 12343. CHAIRMAN: Mr Berryman, the turn-back it to be taking account of the cumulative eVect of the facility is not going to add to the noise, is it? I know diVerent noise sources? Do you understand the study it is a bit further, as it were, to the left? we are talking about to be a very sophisticated (Mr Berryman) It will do in as far as trains come into modelling exercise so that it can account for the the turn-back facility and then go out again. There change if the Government goes for electric or diesel/ will be a platform in the turn-back facility so there electric units—the change when the new noise laws will be some shielding of the noise generated by the bite on the Westway, etc. Is that your understanding, trains and of course they will be going very slowly or are you thinking of a much more limited study? because they are about to turn back, but yes, they will (Mr Berryman) Again, I am not really the best person be part of the noise generated by Crossrail. to answer that question. The study that is to be done will be done in accordance with the various 12344. They presumably clatter across a set of points regulations and such that govern these matters. I am somewhere? sure Mr Thornely-Taylor will be delighted to answer (Mr Berryman) ‘Clatter’ is perhaps not the word I these questions. would have used, my Lord, but they will pass across a set of points. 12335. LADY BRIGHT: You are the managing director— 12345. LORD JAMES OF BLACKHEATH: Is there any notable noise variation in the start-up of the engine when presumably they are going to start 12336. MS LIEVEN: My Lords, I hesitate to rise. I the engine? have the noise expert sitting behind me and I intend (Mr Berryman) No, my Lord, they are electric trains to call him as soon as Mr Berryman is not in the box. so it will be the familiar hum that you will have heard Mr Berryman has said he is not the right person to of motors on the existing railway will be what you answer these questions. get.

12337. CHAIRMAN: He is saying so, loud and 12346. CHAIRMAN: Thank you very much, Mr clear. Berryman.

12338. LADY BRIGHT: He is saying that he does 12347. MS LIEVEN: Thank you, Mr Berryman. not know about the technicalities, but it is a major item that would aVect their work on this. If it is what The witness withdrew we think is meant by it. So I just wanted to establish what Mr Berryman— 12348. MS LIEVEN: Can I call Mr Thornely- (Mr Berryman) If I could just make the point, Lady Taylor. Bright, that Crossrail is a very large organisation which involves all kinds of diVerent specialists who MrRupertThornely-Taylor, recalled. deal in all sorts of diVerent matters. Although I have Examined byMsLieven a general understanding of what they are all doing I do not think I could put myself in their shoes and take 12349. CHAIRMAN: I expect the sensible thing, Ms some of the specialist decisions which are taken. Lieven, is to get his evidence-in-chief and leave cross- examination until this afternoon. 12339. That is probably our point to some extent: what matters a great deal to us does not matter a 12350. MS LIEVEN: We should be able to complete damn to anyone else. the evidence-in-chief. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association

12351. CHAIRMAN: Mr Thornely-Taylor can from that can also flow an oVer of noise insulation come back after lunch? through the statutory scheme. Those are the main processes which will take place, they have to take place, both in satisfaction of the regulations and to 12352. MS LIEVEN: Mr Thornely-Taylor is here carry out Crossrail’s own policies and procedures set for the duration! Mr Thornely-Taylor, you are well- out in the information papers. known to the Committee and indeed to Lady Bright so I am not going to introduce you. Can we go straight to the heart of one of Lady Bright’s 12353. Just to be absolutely clear on two of the points concerns? Can you explain what noise studies have Lady Bright has raised, will those processes involve been already undertaken and what noise studies will taking into account the cumulative noise from be undertaken in the future and what matters they diVerent sources and the existing noise? will take into account? (Mr Thornely-Taylor) The survey which is carried (Mr Thornely-Taylor) The studies which have out for assessing the construction impact involves already been undertaken were those which were done measuring the total noise at the location, from the primarily for the purpose of preparing the railway, from Westway, from other roads, from Environmental Statement. Those were necessary aircraft, from anything which happens to be because the methodology of environmental measured during the survey. The question of assessment involves characterising the baseline eligibility for noise insulation against the operating environment before you assess the eVect of the likely railway is uniquely about railway noise and does not changes that result from the project in terms of the take into account the contribution of other sources. significant eVects that will result. That has been done, as your Lordships know, but there are further stages 12354. And then just staying on process for a which will be necessary for three main reasons. First moment, in terms of taking into account railway of all, there is the matter of construction impact when noise for the operational phase, will the fact that the time comes to plan the works in detail. You have there is proposed to be a reversing facility near heard about the process of the section 61 consent Westbourne Park be part of the railway noise which procedure and that requires the preparation of is taken into account? detailed methods of working and quite often involves (Mr Thornely-Taylor) Yes, it is. noise data, both measured and predicted, but alongside that is the question of testing for potential eligibility for noise insulation or, in some cases, 12355. Okay then, let us move on to the existing temporary rehousing under the scheme, which is situation. Can you just describe the noise climate at explained in Information Paper D9, and for that Westbourne Park Villas in the existing situation, purpose a measured background noise survey is please? required because again the baseline noise (Mr Thornely-Taylor) Yes, on the north side of environment plays a role in determining whether or Westbourne Park Villas, as we have heard, there are not triggers for noise insulation or, if it arises, high noise levels. It is a fairly intense transport temporary re-housing are met. That is then put with corridor with not only several railway lines, several the much more detailed construction noise railway services, but the highway system up on the predictions that become possible when the contractor viaduct at Westway. It is probably one of the areas of is on board, the plant team is known in much more London among the highest levels of railway noise, detail, the method of working and programme is though, as we have heard, significantly reduced just known in much more detail, and eligibility from in recent months. The last of the engine upgrades that which will have triggered the flow of oVers of noise took place for the Intercity 125 trains was completed insulation will be determined, but there is also the just in February 2008 so it is a very recent question of eligibility for statutory noise insulation improvement in the noise climate but, nevertheless, according to the noise insulation regulations for because of the presence of the Great Western Main railways, which is about operating railway noise. Line the suburban lines, and the London There are several important tests which have to be Underground lines, there is a large amount of railway carried out according to the regulations. That is noise at present and indeed has been there since the actually a theoretical process. It is done by time of Brunel. Westway, as we have heard, also calculating the railway noise that exists before you carries large traYc flows and contributes a significant consider the contribution of the new railway and you amount of traYc noise and there are of course local then look at four tests, the absolute day and the roads as well. absolute night noise level, the amount by which either of those noise levels will be increased as a result of the 12356. In terms of taking in account those recent new railway, and also what is the contribution of the changes to the noise environment, will they be taken new railway to the overall noise environment, and into account in the process that you described before Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

committee on the crossrail bill: evidence 1001

7 May 2008 The Petition of Westbourne Park Villas Residents Association for calculating mitigation for both construction and the barrier is great enough at least to reach the line of operational conditions ? sight from the noise source to the window. The noise (Mr Thornely-Taylor) Yes, they will be fully taken source, as we have heard, in the case of electric into account. multiple units is done at the wheel-rail interface but in the case of diesels it is quite high up, it is taken 12357. Just give us some sense as to what relevance formally as four metres above rail level, and therefore they may have for statutory noise insulation? you do geometrical sections to show at what height a (Mr Thornely-Taylor) The most interesting noise barrier has to be to ensure that the top of it consequence of railway noise having improved in reaches the line of sight from a suYcient number of recent times as a result of the engine upgrades we noise sources to make a worthwhile diVerence. For a have heard about is that potential eligibility for noise barrier to be eVective in this location, it would statutory noise insulation from the operating railway need to protect against noise from all the diVerent arising from the Crossrail scheme is actually slightly tracks, some of which are quite distant from the wall greater because although Crossrail remains a minor we have been looking at, and even in those cases if contributor to the total noise environment, there is a you do have a wall high enough to cut across the line very fine trigger required in the regulations which is of sight, because the distance is so great the that Crossrail should contribute 1dB to the total rail defraction that occurs in propagation of noise from noise environment and the total noise environment the source to the receiver becomes quite large and should go up by 1dB. It is now looking as if that will atmospheric eVects, wind and wind turbulence, now be much more clearly established for a larger greatly reduce the eVect of the barrier, so we can only number of dwellings along the Westbourne Park ever look at a partial solution even it were a matter Villas frontage than was foreseen at the time of the for Crossrail to consider reducing the noise from all last estimate which was in the last additional the other railways. If we do strictly limit ourselves to provision in the Environmental Statement. It is quite considering what eVect a barrier would have on a large number that may be eligible using the current Crossrail’s contribution, which is the formal rail services as the baseline. As we have heard, there position, it can never, however high it is, reduce noise is another change coming. What is sometimes levels more than about one or two decibels below the referred to as HST2, High Speed Train 2, will case with no noise barrier at all because that is the eventually completely replace the existing upgraded order of magnitude of Crossrail’s contribution in high speed trains with yet another change that we can the future. only speculate about, but it does seem likely that the facades of these Petitioners may well become eligible 12360. Even taking a slightly diVerent perspective when the time comes to calculate it for statutory noise and thinking about the noise from the whole railway insulation. here, how useful would the 1.5 metre barrier that Lady Bright was suggesting be? 12358. Just explain to the Committee, I think we have (Mr Thornely-Taylor) The eVect it would have on the done so already but just remind us, what does upper windows of the house in Westbourne Park statutory noise insulation mean in practice? Villas would be negligible. I know in meetings that I (Mr Thornely-Taylor) It is defined in the regulations have attended with Lady Bright she has said that to which I have referred. It is the installation of a maybe we need not worry too much about the upper second window behind the existing window, often windows and gain some benefit for the lower called secondary glazing, and the provision of windows, and it is true that at ground floor the alternative ventilation arrangements so that the existing wall gives a noise barrier eVect and if it were windows can remain closed and a number of made slightly higher that eVect would be slightly secondary matters such as the insertion of blinds greater, but from the point of view of taking a between the panes (probably is not necessary in the strategic view of transportation noise as an issue and north facing windows but in some circumstances it is) the promotion of infrastructure schemes, it is not and it is all set out in the statutory provisions. really an appropriate approach to say, “Well, we won’t protect those people because they are too high; 12359. Moving on then to the residents’ desire to we will protect those people because the height of have a noise barrier and that being preferable to their window is lower.” For a noise barrier, which having noise insulation; can you just explain what in involves major resources in engineering and financial noise terms as opposed to engineering terms are the terms, to be something one considers as a possible issues around having a noise barrier at this location? measure, it needs eVectively to be an alternative to (Mr Thornely-Taylor) A noise barrier works by statutory noise insulation and to remove eligibility interrupting the path from the noise source to the for statutory noise insulation altogether. This is done receiver of the noise, namely the windows of the particularly in the case of highway schemes. 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1002 committee on the crossrail bill: evidence

7 May 2008 The Petition of Westbourne Park Villas Residents Association building noise barriers alongside the highway you do The Committee adjourned from 1.03 pm until 2.20 pm but, if you cannot, you end up with the worst of both worlds which is devoting resources to a noise barrier 12368. MS LIEVEN: I have a few more questions and still devoting resources to statutory noise for Mr Taylor, but not very many at all, my Lord. insulation and increasing the cost of mitigation First of all, Mr Taylor, just staying on the noise without solving the problem. barrier for the moment, there was one question which was raised in respect of something which I think Sir 12361. And moving on from there, how useful would Keith Bright said. Would it make any diVerence in Lady Bright’s proposal be that you build a slightly terms of noise insulation if the existing wall were lower noise barrier and then put on angled element simply made thicker? on the top of it? (Mr Thornely-Taylor) No, it would not . The existing (Mr Thornely-Taylor) The angle would actually be wall is plenty thick enough to deal with noise coming counter-productive here. Lady Bright is right in through the body of the wall. With any noise barrier, principle—if our noise source were on the sidings for the main feature that governs the amount of noise example, because one of the critical things in reduction it gives is noise refracting over the top and, determining the performance of a noise barrier is the as long as it is a minimum density and it has got no proximity of the barrier, either to the source or to the holes in it, adding further thickness to it is of receiver, or to both, and for a barrier to be eVective it minimal benefit. does need to be close to one or the other. It is relatively close to the facades of Westbourne Park 12369. The next point is the noise impact from Villas here but it is not at all close to most of the Crossrail on the gardens behind the Westbourne railway lines and all you achieve by canter levering Park Villas houses. How great would you assess that the top of the barrier is moving the edge which does to be, in broad terms? the work slightly closer to the source but that would (Mr Thornely-Taylor) Well, given that even at the only have an eVect if the source were the sidings. windows of houses in Westbourne Park Villas which Because most of the sources are already many tens of do not have any benefit from existing noise barrier metres away from the wall it would actually be eVects from the existing wall and from other features, counter-productive because it is taking the top of the even there, there is no significant contribution from barrier away from the facade of Westbourne Park Crossrail to the overall noise climate, bearing in mind Villas. that in a garden the geometry noise barrier-wise works in your favour because you are lower relative to the barrier than you are the window of a house and 12362. MS LIEVEN: My Lords, I have got a few bearing in mind that, for many of the properties more questions. Given that we are going to have to along there, the gardens are behind the houses and come back after lunch I do not know whether this is the natural noise reduction that those features give a convenient place to break. further reduces the contribution of Crossrail to the total noise environment. 12363. CHAIRMAN: We are going to have to come back anyway. I think it probably is a good time to 12370. Then the next and discrete point, Lord James break. This afternoon we have not got a great deal this morning referred to the noise from the bus more except Mr Payne. garage or, I will call it, the ‘hard-standing’ from the buses manoeuvring on the loose material outside the bus garage. Do you think that is going to have any 12364. MS LIEVEN: I have been passed a note significant eVect on the noise environment in saying that SMTA do not wish to reappear. Westbourne Park Villas? (Mr Thornely-Taylor) No, I think my Lord, Lord 12365. CHAIRMAN: They do not want to come James’s point was about the fact that the ground back? surface was not hard-standing and it was broken up and covered in gravel and, to the extent that it has an eVect, that would be beneficial in that the harder and 12366. MS LIEVEN: So it is finishing oV the more reflective a surface— residents’ association and then it is Mr Payne. 12371. LORD JAMES OF BLACKHEATH: Mr 12367. CHAIRMAN: That is all going to be Mr Thornely-Taylor, I think it is more than gravel, I Thornely-Taylor anyway. I think we might as well think it is shale and, therefore, it is more noisy. break now. Is it possible to come back a little bit (Mr Thornely-Taylor) Well, my Lord, the most noisy before half past two? Can we come back at twenty eVect is to have a totally flat, hard, reflective surface past two? because that eVectively doubles the noise source and Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association you have a mirror image of the noise source below the because they are associated with the construction of hard, reflective surface, so anything which breaks up the central tunnel, so they will be carried out under the surface is actually marginally beneficial. that contract. To the degree that Network Rail carry out any works in this location, where they are works 12372. MS LIEVEN: Then a final and discrete pursuant to the powers in the Crossrail Bill, then they topic, Mr Taylor. Sir Keith Bright made comment, are fully covered by the commitments made in the and I think Lady Bright has as well, on, and I environmental minimum requirements, the EMRs. paraphrase, everything having changed because of a Lady Bright was keen that I said that on the record change in EU legislation. Now, can you just explain so that it was clearly recorded. Thank you very much. to the Committee what the position in respect of noise in this type of environment is now in EU 12375. CHAIRMAN: Just before I invite Lady legislation and how relevant that is? Bright to ask her questions, Mr Thornely-Taylor, if (Mr Thornely-Taylor) What was being referred to is and insofar as the wall falls within the limits of generally known as the Environmental Noise deviation of this Bill and is going to be any good for Directive which has been of course transposed into the purposes of alleviating noise, it could no doubt be British law. It requires a sequence of things. The first done under this and, therefore, it is an opportunity to is the carrying out of noise mapping, and we saw an be grasped under this legislation because it could be example of the first of the noise maps which was the done and, therefore, we could make a road traYc road map which my practice project- recommendation about it. managed some years ago. About now, any day now, (Mr Thornely-Taylor) Well, my Lord, engineers are we will see the publication of the rail noise map—we often, in weak moments, heard to say that anything thought actually it would be available today—but I can be done at a cost! do not think it has come out which will include this area as a separate map of only rail noise, not 12376. They have said it several times. including road noise, and there are other maps (Mr Thornely-Taylor) I think my judgment is that involved as well. That stage is just about complete. the cost is quite disproportionate to the benefit, given The next stage will be for Member States’ that some of the windows will have no benefit at all Governments to draw up noise action plans, but they and those that do benefit, whilst there would be a are in fact remarkably unspecific as far as the terms of noise reduction, in the context of work that is done the Directive go. It is up to Member States to decide for major infrastructure projects as a whole, it would whether they want to set noise limits and Defra has be far and away the most expensive noise barrier that decided that it will not set noise limits, and it is up to I have ever encountered for the benefit that it gives. Member States to decide whether noise reduction is necessary and up to them to decide what, if anything, 12377. On the other hand, the other statutory to do, so it is a Directive which appears to be a major procedures which lead to double-glazing are wholly change in noise legislation, but it actually does not independent of the Crossrail Bill, are they not? necessarily have any material eVect. (Mr Thornely-Taylor) They are. They flow from the intention to construct a new, or altered, railway and, 12373. I am asked by Mr Reuben Taylor to remind to the extent that the powers come from the Crossrail the Committee that apparently we put in a note on Act when it passes into law, there is that connection, the issue of noise maps during the course of the but it is a separate mechanism and a separate legal Spitalfields Petitioners a few weeks ago. I am afraid I provision. do not know what it was called, but it was on this topic. Do you recall that, Mr Taylor? 12378. Therefore, it does not need us to make any (Mr Thornely-Taylor) Yes, I do. recommendations about it because, if the conditions are such and the measurements are such that houses 12374. MS LIEVEN: Those are all my questions, would qualify for double-glazing, it would not make Mr Taylor. Before I sit down, Lady Bright did ask me any diVerence whether it was mentioned in the to mention something to the Committee which I am context of Crossrail because it would happen going to do now while Mr Taylor is in the witness anyway? box, which is in respect of Network Rail carrying out (Mr Thornely-Taylor) That is quite correct, my works at this location and whether they would be Lord. There has been discussion with these bound by the EMRs. My instructions are from Mr Petitioners about the timing of eligibility for Berryman, who, I think, is not here now, and I statutory noise insulation for the operating railway expected Lady Bright to ask Mr Berryman about because the current expectation is that there would this, but she did not do so, so I am covering, as it not be eligibility for noise insulation against were, for him. In fact the majority of the works in this construction noise, and I think the residents would location will not be carried out by Network Rail like to have insulation. Again it flows from the way Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association the regulations are written that eligibility for 12383. Would it be 50 or 70? operational noise insulation has to be determined (Mr Thornely-Taylor) The sound level? before the start of construction of the project, and our project is so large over such a large timescale that 12384. Yes. that will automatically again, out of the state of the (Mr Thornely-Taylor) The measurements are regulations as they currently are, bring about normally made at standard distances. At 7.5 metres eligibility tests for noise insulation right at the from the railway, you could expect a figure below 80. beginning of construction, so that will happen A Class 66, which is a mainline freight locomotive, automatically anyway. hauling full-sized freight trains, probably the quietest mainline locomotive, is about 80 at 7.5 metres and I would expect the temporary railway locomotive to 12379. CHAIRMAN: Yes, that is what I rather be less. thought. Thank you very much. 12385. So it is still quite noisy? (Mr Thornely-Taylor) It would still be audible, yes, 12380. LORD BROOKE OF ALVERTHORPE: my Lord. Mr Berryman was saying that during the construction they could either use electric battery- 12386. CHAIRMAN: Now, Lady Bright, would motivated engines or, alternatively, diesel engines. you like to ask any questions? Do you know the diVerence in decibels between one and the other? (Mr Thornely-Taylor) Can I first make it clear that Cross-examined byLadyBright what Mr Berryman was referring to was the small, narrow-gauge, temporary trains that run on the 12387. LADY BRIGHT: Thank you very much for temporary construction railway. Yes, there is a your intervention, my Lord. That was helpful in reduction in noise from battery locomotives terms of explanation. I would just point out that we compared with diesel locomotives. It is not have the Class 66s and those are the things that shake necessarily a straightforward matter to choose one or Mr Hessenberg out of bed! Those are the freight the other because the distance that has to be travelled trains that are used, so 80, yes, is noisy. Thank you, by the temporary railway is one of the many things Ms Lieven, for clarifying that point also about the that determines the choice of locomotive, and I do regulations; that is a comfort. Mr Taylor, I wonder if not think we have the opportunity today or at the you could explain, because I am not sure that we have present time to say that it should be a battery loco or all got it completely, about this one decibel and how a diesel loco, but there are important operational and easy it is to measure in a complex environment, a other demands that lead to the choice of the noisy environment, with accuracy that one decibel. appropriate locomotive. (Mr Thornely-Taylor) It is almost impossible to measure it accurately. The procedure is purely one of calculation. There is a procedure designated by the 12381. But, wherever possible, it would be beneficial regulations published by the then Department of to use the battery-operated one from a noise point Transport called ‘Calculation of Railway Noise’, a of view? volume which contains both the data and the method (Mr Thornely-Taylor) It would, although these are for doing the statutory calculations. The procedure is small locomotives. They do not have high noise followed according to set rules and, I am pleased to levels. I did quite a lot of work on the equivalent say, if four completely diVerent experts all sat down construction locomotive on the Channel Tunnel as to do the same determination for the same location, opposed to the Channel Tunnel Rail Link, and they provided they made no errors, they would all get the are relatively small units. same answer and, because it is a calculation procedure, it is capable of resolution into these small margins. A small margin is necessary to make quite sure that eligibility for statutory noise insulation does 12382. What kind of category? What kind of figures? not arise wrongly or accidentally in a case where there (Mr Thornely-Taylor) They would be substantially happens to be an altered railway, but it really makes quieter than even the new re-engined, quieter high- no diVerence at all to the noise climate, so it is speed trains coming out of Paddington. They would important that, where there is eligibility for noise be no noisier, in fact quieter than a diesel multiple insulation, it really can be clearly attributed to the leaving Paddington. They are, I stress, one single new, or altered, railway, and that is the procedure locomotive— which will be gone through for Crossrail. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12388. But you could not measure that one? noise maps will be revised and updated, although that (Mr Thornely-Taylor) No. Two sound level meters will not be for several years yet. can measure diVerent levels diVering by more than one decibel and still meet standards for sound level 12395. I am having a problem conceptually about meters. “It’s my noise not your noise” because we do recognise that the cumulative eVects of noise are 12389. So the calculations are theoretical because we complex to assess, are they not? are talking about feeding in data, are we, that does (Mr Thornely-Taylor) They are indeed complex. It is not yet exist? quite true that two noise sources do combine to (Mr Thornely-Taylor) That is quite correct. produce a higher level, but as I explained to the Committee right at the outset in my talk on Day One, 12390. They are all predictions, are they not? that eVect is remarkably small in that combining two (Mr Thornely-Taylor) Yes. This is strictly for identical noise sources only pushes the noise level up eligibility for operational noise insulation. by three units. If we waved a wand and created an identical Westway on, as near as possible, the 12391. The detailed noise study that is going to be identical alignment, surprisingly the noise climate undertaken you say will take account of all the noise would only worsen by 3dB. You would notice it but sources, will it not? only just. (Mr Thornely-Taylor) Yes, it will. 12396. Would you agree that it is likely—we cannot 12392. Does it not seem sensible that that data should predict because we do not know, we have not got the be available to the makers of all the noise sources? data yet—that this complex noise environment will Will it be available? Will this be a public study? be experienced diVerently at diVerent locations even (Mr Thornely-Taylor) That noise study will be on this short street? publicly available, yes. That will be carried out as (Mr Thornely-Taylor) That is very true. We have part of the processes I described before lunch, already seen how the existing railways are at diVerent primarily in the context of the construction noise levels, e.g. the Hammersmith & City Line is diving evaluation both for the section 61 process and for down. On the site visit some of us will have heard the considering whether this is eligibility for noise very diVerent kind of noise that the Hammersmith & insulation or temporary re-housing under City Line makes because of its jointed track from the Information Paper D9. The output of all that work diesel hauled trains going underneath the bridge that will be a public document and available to all. we also heard. They are all diVerent in their nature. It might sound odd but from that point of view the 12393. Excellent. Do we know that it will contain all presence of continuous rather characterless noise the data required? If, for example, Transport for from Westway which Sir Keith described as “white London, which is going to wholly own Crossrail very noise”, meaning it was a broad band characterless shortly, the reorganisation is under way, wanted to noise, to some extent smoothes over some of the more ﬁnd out how much of the noise was due to their irritating characteristics of, for example, the Westway and how they could best remediate that, Hammersmith & City Line clickety-clacking over its would they be able to use this data for that purpose? jointed track. (Mr Thornely-Taylor) They could, but they could do that in two or three days’ time when the new noise 12397. They are diVerent noises. Would you also maps come out because there is a separate map for accept that exposure to them over a long period will highway noise. We saw on the exhibit before lunch a have diVerential eVects as well? blue corridor either side of the Westway due to the (Mr Thornely-Taylor) Complex eVects. There is high noise from traYc on that road and that is pure some habituation to noise. I am sure if we did a social traYc noise and then in a few days’ time there will be survey of the corridor from Paddington to Ealing a rail noise map which will show pure railway noise Broadway we would ﬁnd a wide range of responses. and it will be possible for Transport for London and Some people would say they had got used to the everybody else to see the relative contributions of the railway noise and it did not disturb them; other two sources. people would say that it was a major source of disturbance, it prevented them sleeping and you get a 12394. Would they be able to feed in various wide distribution of responses whenever you look at hypotheticals into the model? public responses to a complex noise source as this. (Mr Thornely-Taylor) Yes indeed. The models are completely mechanistic, so if you feed in diVerent 12398. Is it not the case that these really rather traYc volumes and diVerent rail vehicle types you get complicated tools for measuring noise are at least the appropriately diVerent answer. In due course the partly, if not primarily, designed to predict the point Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association at which the human at the receiving end is going to suggesting that on the morning that Crossrail start making complaints? services start it will be impossible to tell if it has (Mr Thornely-Taylor) No. Humans are an important happened. The trains will sound diVerent and they part of it, but there are many reasons for considering will have slightly diVerent characteristics. I am noise: eVects on sleep disturbance, eVects on health, reminded that when the Tyne and Wear Metro first eVects on task performance concentration, learning. opened after a gap when there had previously been There are many eVects noise has. Complaint diesel multiple units running on the same line people prediction is but one and indeed there are tools for noticed that the new vehicles had six axles per unit doing that, but that is only one of many. instead of four axles and hearing this diVerent duration between the passage of bogeys made them 12399. I mentioned it really because it indicates, does notice the new railway because it was diVerent, but it not, that there is a degree of subjectivity in all this? the noise levels had not changed significantly and it (Mr Thornely-Taylor) There is a wide degree of was not a signature eVect, but it would be wrong to subjectivity and one has to address that by say it did not pass unnoticed. considering populations, groups of people, groups of residents as a statistical sample and you end up with 12403. Therefore, it was not a significant eVect a familiar distribution curve with insensitivity to according to the calculations but it was a significant noise at one end and sensitivity at the other end. If eVect according to the recipients? you take single figures out of that like average (Mr Thornely-Taylor) Some recipients had their annoyance or a particular percentage of people attention drawn to the fact that it was a diVerent highly annoyed, there are ways of getting a single noise and it attracted interest but it remained below number which does not change from a population the threshold of significant eVect using the well- among which the individual human responses vary established system that is used in all environmental enormously. assessments.

12400. If your aim were to ensure that there were no 12404. Would you accept that there is a great material worsening of the noise in the environment as diVerence between a very intrusive noise once every a result of your railway you are actually going to have five days, as you might get with a freight load at four to put in something or a series of measures that are a in the morning, and 24 trains an hour? little bit generous in their assessment in order to cover (Mr Thornely-Taylor) They are very diVerent, yes. all the eVects, are you not, on individuals? (Mr Thornely-Taylor) The procedure is fairly clear, it 12405. Would this be picked up in this sort of crude is to define a methodology, which was done right at measurement? the beginning of the environmental assessment work (Mr Thornely-Taylor) Yes. and to set a threshold of a significant eVect. Then it is to see whether the noise that is associated with the 12406. It would not be picked up in the trigger, development you are assessing will trigger the would it? significant eVect. If it does not then no action follows (Mr Thornely-Taylor) Yes. All operational train and that is what has happened in the case of Crossrail noise is taken into account in the process. in this location, there is no significant eVect from the operation of Crossrail in this location. 12407. Obviously one is a peak noise and one is an ambient noise. I am talking more about the eVect on 12401. Would you accept our rather crude the people. description of the situation that, using the data which (Mr Thornely-Taylor) To the extent that the noise of was gathered a long time ago in the Environmental a freight train might have more annoying Statement, the Crossrail trains will be broadly characteristics than the noise of electrical multiple inaudible to us but that you anticipate that this will units, there is no special allowance for that. As was not be the case when the new data is collected? observed this morning, electrical multiple units are (Mr Thornely-Taylor) It has never been part of the very benign in their noise characteristics. The noise is process to assess audibility. That is a wholly almost all wheel-rail interaction, there is very little subjective concept in environmental noise. traction noise and certainly no diesel engines or anything of that kind. Noise for noise, an electric 12402. Sorry! It was a loose term. multiple unit is likely to be less disturbing than, for (Mr Thornely-Taylor) It is this process of example, a freight train. determining a threshold of a significant eVect. Let us be quite clear, there can be a noise, which is a new 12408. I shall remain worried about that one decibel noise, which is not assessed as a significant eVect but that had to be fed into the calculations. It all seems which is still quite clearly audible. Nobody is too close for comfort. We are here with the Bill going Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association through with no certainty on that one. I would like to (Mr Thornely-Taylor) Acoustically, yes. move on to the hierarchy of mitigation that was discussed on Day One. The most desirable kind of 12414. And, in terms of materials and so on, mitigation is at the noise source. If it is going to work inexpensive. you will try to do it at the railway level, is that right? (Mr Thornely-Taylor) I think a piece of engineering (Mr Thornely-Taylor) Yes. It is a sort of mantra in would need to be done to see. The ordinary hum- noise control that source, path and receiver is the drum things we were talking about this morning, like order in which you attempt to mitigate noise. wind-loading, become enhanced in gaps between houses. I have seen more garden fences blown down 12409. This hierarchy of litigation is broadly to move in recent times than almost any other structure, and from one close to the source of the noise and further I think a quite significant engineering exercise would back until your last ditch is sound insulation, is that have to be undertaken before I could answer that correct? question. (Mr Thornely-Taylor) I do not know whether it is last-ditch, but being the receiver, it is the receiver part 12415. Perhaps we will ask somebody else about that, of the source path receiver chain. because it is a major engineering exercise, although, perhaps, not as major as some of the engineering 12410. If the aim is to achieve a certain degree of exercises you will be engaged in on the railway. mitigation you could use several of these layers of Thank you, that is helpful. I would like to simply ask mitigation. They are not mutually exclusive, are they? if we should keep that in play; prejudge nothing until (Mr Thornely-Taylor) They are not. we have the noise data, really, in terms of what might be the appropriate remedy. Do you not even exclude the wall, would you say? 12411. Let us turn to the barrier. We do not wish to (Mr Thornely-Taylor) The existing wall is a noise argue any more about the wall and I am not going to barrier—let us not lose sight of that—and it does ask you engineering questions. Bearing in mind the contribute to lower noise levels at Westbourne Park vulnerable area is the gardens, we are probably going Villas than would exist were it not there, and it is to have to retreat from the front gardens altogether if quite possible that is one of the reasons why it was we do not get a barrier on the street side, but we must built (no doubt trespass and other things came into it protect at least the back gardens in the rest of the when the Edwardians—or whoever they were—built Conservation Area. I am not assuming at this point it) and there would have followed from its that you are right or wrong about the eVects of construction a reduction in noise. Once you have got Crossrail noise on that. We should not make that a noise barrier the law of diminishing returns comes assumption until we have got this new detailed noise in and you do not go much further by adding to it. We study. I would like you to say in theory if you decided have seen that you have to do a lot to it with major to move your line of retreat back because the wall was engineering consequences at great cost to improve for various reasons not a fair one, could you make the upon it significantly. row of houses an eVective noise barrier if you stopped up the gaps between them? 12416. But it is fairly eVective to its own height, in (Mr Thornely-Taylor) That is not an option which eVect, as a noise barrier. Correct? any transportation scheme promoter could ever do (Mr Thornely-Taylor) It is a 2.5-metre high brick because of all the complexities of property ownership wall which results in much better noise conditions and Town & Country Planning and all the other than there would be without it. many reasons why it would be completely impractical 12417. At least hypothetically, and I will leave it after 12412. If such a scheme could be devised and a way this, if you deal with height with the existing wall you of doing it could be devised it would be a pretty cheap find can ways of dealing with the other heights, and option, would it not? your last ditch is the noise insulation. (Mr Thornely-Taylor) I do not think so. I think (Mr Thornely-Taylor) It is not “last ditch”; it is the everyone would want something diVerent. All the logical course that comes from a consideration of the local requirements, both structurally and from an options, both in terms of practicability, cost- administrative point of view, would be so diVerent eVectiveness, legal requirements and proper planning that I think it would be a complete nightmare. of a major transportation project.

12413. It is possible and I would not prejudge that; it 12418. I will leave that line of questioning there, depends on whether people wish to go in the same thank you, as long as we can agree that the options direction and ﬁnd a sensible solution or not, but must remain open until the detailed noise data is acoustically it is a goer. available. I am glad to hear that it is going to be Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association publicly available and can be used by the Promoters 12424. CHAIRMAN: Lady Bright, I do not think to see what would be useful remedies for them to do you have answered Lord Brooke’s question. Have for diVerent noises that are not Crossrail’s. you discussed with the Westminster City Council the (Mr Thornely-Taylor) Yes. No information will be question of heightening the wall? withheld from the public that is not classified. 12425. LADY BRIGHT: I am sorry, I did not answer it clearly enough. We have discussed it with 12419. LADY BRIGHT: Thank you very much them and they are not giving a clear answer until they indeed. know what is proposed. They are not against a noise barrier in principle, as far as I can understand. 12420. LORD BROOKE OF ALVERTHORPE: Could I ask you, Lady Bright, if you have had any Re-examined byMsLieven conversations with Westminster City Council about their likely reaction to you advocating that there 12426. MS LIEVEN: A couple of questions in re- should be an increase in the size of the wall or there examination, Mr Thornely-Taylor. First of all, as far should be some changes in the nature of the panels as the eligibility criteria for noise insulation and re- between houses and so on? housing, which are set out in D9, are concerned, have those been agreed with the local authority? (Mr Thornely-Taylor) Yes, they have. 12421. LADY BRIGHT: We have not had detailed conversations about the panel changes, etc, and that 12427. I then want to turn to this issue about the would be with the Conservation people. There are construction railway that seems to have come up panels already between some houses of not a great rather late in the day. First of all, noise from the height but a little bit higher than the wall and construction railway: is that taken into account when certainly closer to where the noise is felt, and those the noise study is carried out and the assessment for seem to be okay. So although I cannot prejudge what eligibility for noise insulation during construction is they would say I would say that, in general, the local assessed? authority has been very supportive of us, so if they (Mr Thornely-Taylor) It is part of the plant required can they will. for construction, and it will be taken into account in that process. 12422. LORD BROOKE OF ALVERTHORPE: Do they know about the line you have been running 12428. MS LIEVEN: My Lords, there is one point on the wall? I want to raise at this stage. There seems to be some possibility floated that we should be required to use one kind of construction locomotive rather than 12423. LADY BRIGHT: Yes, and they have a great another. Now, that is not a matter we came here deal of experience in large civil engineering projects. prepared to deal with, and I am getting various Mr King, who is in charge of dealing with the diVerent notes about diVerent kinds of trains and Crossrail Bill from Westminster, has just built the diVerent noises. If the Committee are interested in new Bishop’s Bridge, which is a massive, multi- that matter—and, clearly, it is something the million pound bridge. He also knows about how Committee are perfectly entitled to be interested in— diYcult it is with public works; if people do not want what I would like to do is do some work overnight to do something they will find a million reasons for and produce a very short note that sets out what the not doing it. Therefore, at this stage, where we are diVerent kinds of construction trains are and what getting so much objection to even thinking about the their noise at 7.5 metres, or whatever, would be. I wall, which is a Network Rail structure, we have not would much rather not do it on the hoof because I got any further with detailed discussions there. I want to make sure we have got it right. To be frank cannot really give you too good a steer, but it is not with you, I am getting slightly conflicting messages ruled out at all. I think they would encourage that it on conflicting points. So I do not want to relay them could be done at some reasonable cost. Obviously, to the Committee and then have to pull them back that is a factor and that is partly behind what you are tomorrow. saying as well. We do have costings from mainland Europe—Holland—on noise barriers and structures 12429. CHAIRMAN: You do that. supporting them etc, and their costings are several orders of magnitude lower than the ones we are 12430. MS LIEVEN: If I could do it that way I hearing from the people who do not want to do it. I would be very grateful. Thank you, my Lords. Those would simply leave it at that. are all my questions for Mr Thornely-Taylor. Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12431. CHAIRMAN: Thank you very much, Mr location. So that work will be done as part of the Thornely-Taylor. assessment process for the construction noise insulation eligibility. So, in my submission, that The witness withdrew meets a number of her concerns.

12432. CHAIRMAN: What is going to happen 12439. So far as construction noise eligibility is about Mr Payne? concerned, it is important that your Lordships understand that the criteria are agreed with the local 12433. MS LIEVEN: I think Mr Payne is here and authority. They have come together and they have Mr Mould is ready to go ahead. Do your Lordships been agreed, holistically, across the route. That is a want a short closing from me? universal standard that can be applied to residents up and down the Crossrail route. It is also important to 12434. CHAIRMAN: Yes. I wanted to make sure understand that that takes into account all the that we have got our plans organised. construction eVects, including the conveyer, the construction railway—all construction elements. 12435. MS LIEVEN: Yes, Mr Payne is here and Mr Mould, I think, is here. 12440. So far as the noise barrier is concerned, there are a number of points which, in my submission, 12436. CHAIRMAN: You close on this one and I make it plain that there is no sense in having a noise will invite Lady Bright. barrier here. First of all, the noise impact itself: this is an existing noisy environment, by anybody’s 12437. MS LIEVEN: Thank you, my Lord. I think standards, both from the Westway and from existing I can deal with the points very quickly. As far as the railway noise. I would, with respect, echo what Lord footbridge is concerned, I think the position is Snape said: this is an area where people have moved agreed, eVectively, between ourselves and the to in the good, full knowledge that there is a lot of Residents’ Association now, so I do not think I need noise from these sources. What we are doing is say any more about that, save to remind the replacing relatively noisy diesel trains with relatively Committee that the footbridge, at the end of the day, quiet Crossrail trains. They are on the far side of the will be fully-Disability Discrimination Act compliant track from the housing and, in my submission, one because it will be fully accessible at both ends and can understand residents’ concern about railway there will be no step in the middle. We have agreed to noise in a general sense, because there is a lot of it, but light it (we have seen the Network Rail letter) and in terms of this being a terribly sensitive location to further work in terms of painting it or whatever may noise from Crossrail, in my submission, it plainly is be undertaken by Network Rail, and we have said we not, because one has to see it in respect of the existing are happy to work on a scheme with Network Rail. noise environment.

12438. As far as the batching plant is concerned, the 12441. Just specifically on the gardens, which I think batching plant itself has not been raised by Lady both Sir Keith and Lady Bright emphasised as being Bright, so I am not going to say any more about that. one of the very precious elements of at least the So far as trains to the batching plant are concerned, houses which are like theirs in this area, you have in my submission what has become very clear today heard Mr Thornely-Taylor’s evidence: no material is that there is going to be a major improvement to impact on the gardens from Crossrail—full-stop, end Westbourne Park Villas in respect of the trains to the of story. The gardens are very significantly shielded batching plant from this proposal. At the moment by the houses themselves, but, also, because of their there are two or three trains a week in the middle of level they get the benefit of the noise barrier eVect of the night going to the batching plant but, as Mr the existing wall. So, really, there is no material Berryman explained, once the Crossrail scheme is impact on the gardens. completed those trains will not go anywhere near as far east as they do at the moment. So they will not go 12442. Then we come to: does it make sense to build past the majority of houses in Westbourne Park a barrier in any event? The simple answer is no. Villas any longer. That is going to be a major Extremely diYcult to construct, as Mr Berryman improvement by reason of the project. In terms of explained, and extremely disturbing to construct noise reports, which Lady Bright was very concerned because it is going to have a very material impact on about, it is clear from Mr Thornely-Taylor’s evidence the Conservation Area, however you design it. If you that there has already been considerable work to put it on the railway side it is going to have a material draw up the Environmental Statement; there will be a impact on the railway, and there are real people who detailed noise study which will take into account both are going to find it diYcult to get into Paddington cumulative noise eVects and background noise in the while possessions are taken, and so on. That is an Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of Westbourne Park Villas Residents Association impact which is simply not justified here. Also, it is residents? We are represented on the liaison very expensive. It comes back to the point: “Well, committee but I just wonder if we could think of Crossrail is £17 billion so what is the odd £5 million something that would give us a little bit more clout or £4 million between friends?” In my submission, on that one. Unfortunately, I do not write laws like you are spending £5 million—or something in that yourselves so I do not know, but it is a point, local region—for very little benefit. Lady Bright queries authorities are representing us to some extent but Mr Berryman’s costs. Mr Berryman, just to remind our interests as residents are a separate matter, and the Committee on the penultimate day, is an we would have expected to have had much more extraordinarily experienced engineer, who has been detail on how this railway was going to be built and building this kind of project for many, many years what the consequences were going to be for us by and, in my submission, the Committee can place the time the Bill had gone though both Houses of great reliance on the costs that he puts forward. Parliament. Certainly for the Jubilee Line for Maybe it will not be £5 million; maybe it will be a bit example that was the case. So that undertaking less, maybe it will be a bit more, but that it will be in would be very helpful. that ballpark is something that we have produced expert evidence on, to be frank, and the Committee 12445. I wonder how we could phrase something on can place reliance on that. So if we have a noise the noise barrier situation. I would point out, going barrier that is not justified in itself, that would be very back to the noise barrier, when it was built, as Mr damaging in all sorts of ways and it would be Thornely-Taylor indicated, it was built to be a noise extremely expensive, so, in my submission, it is barrier against the noise from the railway. It was a simply not justified here. I hope that covers all the built with a slight curve to deflect noise and it was points. As I say, we will come back briefly tomorrow a very solid structure. I do not want to go into the on construction railway noise because I would just engineering questions of moving it or changing it or like to make sure that we have got that entirely right doing anything else, but I do want you, if you would for the Chairman. not mind, to address the fact that we are now building a new railway and we ought to upgrade the 12443. CHAIRMAN: Lady Bright, it is your structure or find a way of meeting that aim for the opportunity, you said earlier that you could not 21st Century. This barrier was designed to protect think of any undertakings that you were going to against railway noise from a smaller, less used ask us to suggest but maybe things have clarified railway. I do not know if there is anything you can themselves. think of on that score but what we are interested in is that nothing is ruled out at this stage until we have 12444. LADY BRIGHT: One I think. I am very got the detailed assessment. We are very much glad and thank you for informing us that Network comforted to hear that the noise assessment will be Rail and other, what shall I call them, rail in the public domain and therefore if there are undertakers will be bound by the Crossrail arguments about “which noise is yours” between the Construction Code and the full package of measures co-sponsors, who are between them making all the that have taken three years to work out with the noise, that we can all be involved in looking at that. local authorities under the term “environmental There may be remedies, for example, for one sort of impact requirements”. That is the package and you noise which would impact on the way Crossrail were very clear about that, it will cover the route thinks of remediating the noise they make on us. So and everything that is done on the route by long as Crossrail have to do just Crossrail-related whomsoever, so that is useful. And thank you for things and the measurements that are dedicated just the information about the freight railway. It is not to Crossrail, we are all a bit stuck, but knowing going to give us any comfort but at least we know there is this study that will be publicly available is where we are. The local authorities have in the case of great comfort and I do not need a further of this Bill got, I think it is right to say, far more undertaking on the study itself. powers than they did have at the end of the Jubilee Line for example because there are so many 12446. On the point that people who live in houses uncertainties and they are qualifying authorities for alongside busy railways know that they are going to more things. This seems to me to make sense but it be disturbed by trains, yes certainly, but the noise does not leave a role for people who are not local environment has changed markedly for the worse authorities, people who are just residents like us, really since rail privatisation, I suppose, to be where the determination of detailed design is a long honest, and then the changes following on since, so way oV and in the case of our noise protection what we are looking at now is we have just got some depends on studies which have not yet been done new engines that have removed one of the great and so on. Is there some sort of undertaking that banes of our lives, those Paxman Valenta, is the lull we could ask for that would keep us in the frame as before the storm. It is now slightly better than it Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

committee on the crossrail bill: evidence 1011

7 May 2008 The Petition of John Payne was. The Westway has got about as bad as it can 12449. LADY BRIGHT: It is not exactly the same be. It is going to be resurfaced but when and what as what I thought and I as a mere resident am not the impacts will be, all these things are things that able to envisage all the railway manoeuvres that concern us and we did not want them left out of the may be required and check them against the powers consideration of Crossrail even if Crossrail itself was in the Bill at that stage, so that is where you could not responsible. I think that is really quite helpful give us some comfort perhaps. but if you could possibly ﬁnd some way to keep us involved in the consultative process for these local, 12450. CHAIRMAN: So far as we are concerned very speciﬁc concerns, that would be is he helpful. I however, we can only deal with the Crossrail do not think there is any more than that, thank you. scheme, so there is nothing much further we can do about what the rest of Network Rail carries out.

12451. LADY BRIGHT: During this period and in 12447. MS LIEVEN: My Lord, there is just one general pursuit. I can see an argument happening here about what Network Rail is doing in pursuit point that I simply must clarify because I said of the Crossrail project and arguing about whether precisely the right thing about Network Rail and they are doing it for that reason or something else. Lady Bright repeated it in a diVerent form which is not correct, and it is one issue that we cannot allow 12452. CHAIRMAN: I do not think so. there to be any misunderstanding about. Where Network Rail carry out works under powers in the 12453. LADY BRIGHT: You do not think so? Bill then they will be bound by the EMRs. That is the correct statement of the position and that needs 12454. CHAIRMAN: No. We are very grateful to to be correct and clear on the transcript. Thank you, you particularly since you have ﬁnished at a most my Lords. convenient time because we have got very nearly your neighbour, Mr Payne, who is due to come on now and is here and it will allow for plenty of time tome to deal with his Petition. Thank you very much 12448. CHAIRMAN: Which may not be exactly to you and your witnesses for being here and we will the same as what you thought. think about the things you have said.

The following Petition against the Bill was read:

Petition of Mr John Payne 18 The Petitioner appeared in person

12455. CHAIRMAN: Mr Mould? 12457. If we have up 04-002 please. We have shown that on a cross-section so you can see here is the red line showing the assumed basement of Mr Payne’s property and the distance to the tunnel crown at a 12456. MR MOULD: My Lord, Mr Payne is the corresponding distance to the track level in relation owner of a residential property at 23 Stanhope 17 to the westbound running tunnel and a broadly Terrace, Hyde Park Gardens, London W2, and we corresponding distance in relation to the eastbound have produced on the screen a plan, and you will see tunnel. Of course, tunnels here are passing eastwards Mr Payne’s property has been outlined in red. It from Paddington Station on an arc to go down forms part of a larger residential block at numbers 22 beneath Hyde Park and then to follow broadly the to 33 Hyde Park Gardens. Members of the east/west alignment of the Central Line as it passes Committee who attended the site visit the other day beneath Park Lane and into the West End. will recall that we visited Mr Payne’s block and spent a little time viewing the location. The Crossrail running tunnels are passing in a broadly north- 12458. As regards groundborne noise, the predicted westerly/south-easterly alignment beneath Mr levels for the operational railway for properties in Payne’s property, as shown with the dotted lines on this vicinity are all below 30dBA LA and the the plans in front of you. The depth of the tunnel at highest prediction is at 29dBA LA ma.x,S Given the this location is about 23.7 metres from the basement depth of the railway beneath the basementmax,S and the of Mr Payne’s property to the tunnel crown and level of prediction, this part of the railway is not one about 29 metres from the basement to track level. which we consider to merit the provision of ﬂoating

17 18 (WESTCC-7 04-001) (WESTCC-7 04-001) Crossrail Ref: P79, 23 Stanhope Terrace—Location Plan Crossrail Ref: P79, 23 Stanhope Terrace—Section AA Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

1012 committee on the crossrail bill: evidence

7 May 2008 The Petition of John Payne slab track and therefore a standard resilient track emergency access shaft constructed beneath North form is proposed here, in accordance with the design Carriage Drive in the northern part of Hyde Park and arrangements agreed with Camden and other local an access passage, which I think Mr Berryman authorities and set out in operation paper B10. As explained the purpose of yesterday in relation to the regards vibration both for the passage of the PRACT Petition. As you will recall, Bayswater Road construction of the railway and the operational is running parallel to North Carriage Drive just to the railway, the predictions for Mr Payne’s property are top of this plan and West Carriage Drive is oV plan well below the threshold for disturbance of to the west and obviously that takes you up to the residential occupiers set by the relevant British immediate vicinity of Mr Payne’s property on the Standard and we anticipate that, as regards other side of Bayswater Road, Lancaster Gate. I vibration, the only likely source of disturbance is for mention this brieﬂy now because things have a very few days when the tunnel boring machines are changed, I think, so far as Mr Payne is concerned, to passing directly beneath the Petitioner’s property. his advantage recently in relation to this. The scale of works that is required at this location is now much 12459. I ought just to touch on the fact that this more limited than was the case in the Environmental property and others in the block of which it forms Statement, and that is because it is not necessary to part are a group of Grade II listed buildings dating provide a ventilation shaft as well as an emergency from the mid-Victorian years and, as your Lordships access shaft. That means that the work site itself is will recall,19 a terrace of eight stucco-ed houses. We much reduced in area, as you see here, and, have carried out a ground movement assessment importantly as regards the concerns he raises, it report and that is to be found at page 003 and means that in order to enable Crossrail to be following. I think all I need to say at this stage, if you constructed thee is no need to close or to interfere can just scroll down to the bottom of the page, your with the movement of traYc on West Carriage Drive. Lordships will see from the summary and conclusion Crossrail lorries will come to and leave the work site of the report that the prediction is of negligible from the east along North Carriage Drive. Obviously damage in terms of ground movement. The soil they will make that journey from Marble Arch and beneath the premises is London Clay. That is the travel along and then exit that way, so there should medium through which the tunnel will be constructed not be any appreciable impact as far as West Carriage and in terms of tensile strain it is well within the Drive and traYc moving on to Bayswater Road lowest damage category, that is to say negligible, and through Victoria Gate under these more limited that is the prediction set out in the report. We proposals. I perhaps ought just to mention that, as I provided the full phase 3, stage 1 report in relation to understand it, broadly at the peak of construction at this and the surrounding properties for you in your this work site the daily number of lorry movements is packs for ease of reference. likely to be of the order of 30 or 40 movements two- way, so that is 15 to 20 actual lorries a day servicing 12460. Mr Payne raises the question of land this site. compensation in his Petition and I just ought to set the scene to say that as subsoil will be required from 12462. CHAIRMAN: The carriageway will be Mr Payne, who is the freeholder of these premises, as closed otherwise of course? I understand it, he will be entitled, in principle, to claim land compensation under section 7 of the 12463. MR MOULD: It will be closed and, as your Compulsory Purchase Act 1965 for any injury that Lordships see, it is necessary to close it for the his property may sustain as a result of the duration of the works in order to enable the work site construction or operation of the railway. SuYce to to operate and the construction of the shaft to take say, we think it is very unlikely indeed from the place. As your Lordships may know, the Carriage predictions and assessment we have made that he will Drive is of course a private road within the environs need to make any claim of this kind but he does have of Hyde Park itself and although it is available day- that right in principle. to-day for use as a public road by traYc, it is in fact relatively lightly traYcked and so the closure of 12461. The other matter I ought to touch on in light that— of his Petition20 in opening is to refer you back to the Hyde Park emergency access shaft. You have that document; this is the plan you were shown 12464. CHAIRMAN: But there are no lorries or yesterday. You will recall that we are proposing an buses?

19 Stanhope Terrace) Listed Building Assessments, Phase 3 12465. MR MOULD: That is right, and our Iteration 1 Reports, Mott MacDonald (WESTCC-7 04-003) 20 Crossrail Ref: P79, 25-28 Hyde Park Gardens (including 22 prediction is that any traYc displaced from North (WESTCC-6 04-001) Carriage Drive as a result of the presence of this Crossrail Ref: P79, Hyde Park shaft—worksite layout Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

committee on the crossrail bill: evidence 1013

7 May 2008 The Petition of John Payne worksite will be readily accommodated on Bayswater folder, which I hope you all have. The freehold was Road obviously just to the north. acquired by the residents utilising the Leasehold Reform Act 1993 after a lengthy battle of ten years 12466. LORD JAMES OF BLACKHEATH: There with the Church Commissioners which ended in the is a gallop parallel to that which is very heavily used Court of Appeal. by the livery stables and by exercising oYcers from the Household Cavalry. What is the crossing of that 12475. Your Petitioner has sought an undertaking gallop at any time and what arrangements have been from the Promoter to use ﬂoating slab track in the made to secure the safety of the horses and the riders? construction of the railway as a measure to mitigate the eVects of groundborne noise and vibration in the 12467. MR MOULD: We are committed to making tunnelling below the estate, if the scheme should go arrangements to provide an alternative route which, ahead. This is not likely to be suYcient in any event, I think, will pass to the south of the worksite for the so I am advised, as you will hear shortly. There is duration of the use of the worksite for the Crossrail potential for direct and continuing damage to our works in order to accommodate park-users, buildings from the railway which will only be about including equestrians. 14 metres above the works. This is contrary to the impressions given out by Crossrail. I am advised that 12468. LORD JAMES OF BLACKHEATH: Will the Crossrail calculations forwarded to me require that be a properly surfaced gallop? detailed examination.

12469. MR MOULD: I think yes, it will. 12476. Your Petitioner has considered for some time that there is a better route for the central London 12470. LORD JAMES OF BLACKHEATH: There section, linking the stations of Paddington, are nods of assent from Mr Berryman behind you, Farringdon and Liverpool Street. I am aware of a which I think we should record. longstanding outline plan for the northern interchange route, the Cavendish Square to Edgware 12471. MR MOULD: I read this up in the Road variant. I have here with me in support my Environmental Statement and my recollection is that neighbour Martin Hawker. we made that commitment, yes. Unless there any other questions at this stage, I will hand over to the 12477. I have deposited with your Clerk copies of Petitioner. exhibits and annex papers in a ring-book together with those of Mr Winbourne, and a witness statement 12472. CHAIRMAN: Yes, Mr Payne? from Darius Potel who, as Mr Winbourne will explain later, was to appear today as an expert 12473. MR PAYNE: My Lords, Ladies and witness for me, but unfortunately he has been called gentlefolk. I am John Payne, Chairman of the Hyde away and could not wait any longer as it is an Park and Stanhope Terrace Residents’ Association important court case that he has had to attend. I and Chairman and shareholder of the company understand Mr Winbourne will explain that later. which runs the freehold of the land and buildings known as 25-31 Hyde Park Gardens and 22-35 12478. CHAIRMAN: What was he going to say? Stanhope Terrace W2. I will refer to this as ‘the estate’. I myself live at 23 Stanhope Terrace, a lower 12479. MR PAYNE: He is an expert on my type of ground-floor flat. I thank everybody on the building and he is a property developer expert. He Committee who came along and had a look, thank has also put a statement in which is in the back of my you. bundle under number 19, I think. 12474. The estate consists of originally a terrace 12480. MR MOULD: I am in a bit of di culty block of houses surrounded by gardens and vaults. It Y because I do not have Mr Payne’s documents. I was constructed circa 1830 of brick with a stucco gather he delivered them to your clerk rather than finish and it was converted in the 1950s to form 80 delivering copies to us, so I do not know if Ms Price apartments on five floors plus a deep residential has got a spare one. basement. The footings are of stepped-out brickwork. It is an impressive listed building situated on the edge of Hyde Park and within a Conservation 12481. CHAIRMAN: You have not got this? Area. A copy of an illustrated article in the Architect and Building News dated May 28 1953 describes the 12482. MR MOULD: No (same handed). My Lord, block and its conversion in some detail. It is in my having sped-read Mr Potel’s statement, having been annex of accompanying exhibits, under JPA11 in the handed a copy of it very kindly by Ms Price— Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

1014 committee on the crossrail bill: evidence

7 May 2008 The Petition of John Payne

12483. CHAIRMAN: Mr Mould, have you not had 12492. MR PAYNE: I shall call Mr Norman any of the material in Mr Payne’s bundle? Winbourne as my expert witness. There is one other thing which I have omitted to say, which is that I did 12484. MR MOULD: No, I have not. I gather what have another possible expert witness, Owen Luder, happened was that Mr Payne delivered to Ms Price, and he could not come today, but he has given me a but did not deliver any copies of his file to the supplementary letter which I would like to add to my Promoter’s oYces. He appears to be under a bundle, if that is okay. misunderstanding as to what was required of him, but the upshot is that I have not seen this before. I 12493. CHAIRMAN: What do you want to do have, as I say, had a quick look through the statement about Mr Luder? that he has just mentioned of the gentleman who cannot be here this afternoon and it does appear from a pretty quick read of it that the burden of the 12494. MR PAYNE: He cannot appear, so I would argument set out in that evidence is to suggest that just like you to take a read of his letter and please there is a superior alternative to the Crossrail route as consider it. it passes through Bayswater and into the West End, so we are again into familiar territory, albeit in a diVerent location. I also know that we are expecting 12495. CHAIRMAN: I have had a read of his letter. that your Petitioners tomorrow, the Crossrail Fortunately the letter is short, but the qualifications Coalition and the Mayfair Association, are going to are colossal! raise the same route, as I understand it, so I wonder whether there is room for a little bit of case MrNormanWinbourne, sworn management there in terms of the Committee hearing Examined byMrPayne that which it is prepared to hear in relation to that matter, perhaps deferring that topic at least until tomorrow’s business when I think it is likely to be 12496. MR PAYNE: Mr Winbourne, you have done raised by other Petitioners. a long report and appendices which I would like to come to later. Would you please, first of all, focus on 12485. CHAIRMAN: There is another diYculty Hyde Park Gardens and Stanhope Terrace so that about this, Mr Payne. Your Petition is very unspecific there is no suggestion, as before in the last few days and we will have to think quite carefully about some and in the Commons Select Committee, that we are of the issues because I am not sure that we are oV the point. empowered to deal with them, so let us go ahead and (Mr Winbourne) My Lords, if I can speak directly in see what it is that you want to raise. response to what Mr Payne has said, I would like to go through the exhibits and so on which are Mr 12486. MR PAYNE: I was just going to say that Mr Payne’s tabs up to 11 before he starts 1 and 2, and Potel could appear tomorrow possibly with the comment on them, if I may. A lot of this is stuV that residents of Mayfair and thereby he can give his has come from Crossrail and I draw attention to the statement then. I think he will be saying a similar fact. Perhaps I should say, first of all, that I belong to thing to that which he would be saying for me in four societies in valuations and so forth. I am a very, any case. very senior chartered surveyor. I first entered the profession before the Second World War ended and 12487. CHAIRMAN: Well, he may not be saying it worked for my father for a while as a teenager until at all because we have got no powers to consider it. he died. He was a well-known architect, surveyor and engineer. Unusually, and perhaps also uniquely, I am also a Fellow of the Institute of Civil Engineering 12488. MR PAYNE: So you can decide later. Surveyors, and I do not know of any other valuer of any consequence who is. I trust that that will be taken 12489. CHAIRMAN: Anyway, you are not going to on board, and there is a long CV which I will not bore pursue it and he cannot come today? the Committee with, but I would ask you to bear that in mind, bearing in mind what you have just said, my 12490. MR PAYNE: No, he had to go, he could not Lord Chairman, about Owen Luder. He and I have stay, so all we have got is his expert witness worked on three or four matters previously and are statement. working on one now. The extract from the Building News magazine of 1953, Mr Payne’s tab 11, is an 12491. CHAIRMAN: You had better do your best excellent descriptive matter of the buildings as they on the face of your Petition and your bundle and we were converted in 1953. Mr Payne occupies one flat, will see how far we can get. but what we are looking at is a homogenous— Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

committee on the crossrail bill: evidence 1015

7 May 2008 The Petition of John Payne

21 12497. CHAIRMAN: Sorry, which tab is it? (Mr Winbourne) All they are showing is the centre (Mr Winbourne) Mr Payne’s tab 11, at the beginning, line of the tunnel on this one. The tunnels are much it is JPA11. It is most important with listed wider, as I have explained, up to 18 metres and buildings—and this is a Grade II listed building— possibly even wider than that because the reason for that the listing extends to the curtilage of the the compensation grouting is that it fills up the building. In fact, where you have a house and garden interstices in the London Clay where there are gaps it includes the garden. That is quite important and so on or for that matter any other kind of because in this case we have an example of an 1830 or ground. Above the London Clay are terrace levels so terrace, just before Queen Victoria, I make this and made ground in this case. What I want to go back William IV or George IV, I am not quite sure which, to is the description of the building itself, if I may. I and it is built with the curtilages including basements think you should have well in mind that it is not just and everything else. Some of the basements have been the black bit they show on the plans we are dealing taken away which may be important structurally and with, we are dealing with a whole block and, equally, I will come to that later. This building was originally the one on the other side and the same goes right five Victorian houses, as far as Mr Payne is across Bayswater and the Hyde Park area. Can I just concerned, but in fact you are looking at a much digress for a moment? I am certainly not against longer terrace, well within the limits of deviation of Crossrail but on the present route I would be the scheme never mind the small size tunnel line that recommending your Committee reject the Bill you are shown on the maps which I find altogether. The point is— objectionable and I will deal with later. It is all within the limits of deviaton of the scheme, the entire 12500. CHAIRMAN: We cannot do that. It has terrace, and that is similar to others in the area. This been given a Second Reading. is not the only one under the same threat. We are (Mr Winbourne) I would be recommending to dealing, as far as he is concerned, with a group of Parliament, if I were allowed to, to reject the Bill vertically connected— altogether. I hope that is fair. If it is possible for Parliament to think again, I would wish it to think again for good reasons and I hope to demonstrate 12498. LORD BROOKE OF ALVERTHORPE: those good reasons respectfully. I would like to Could we have a map back up so we can see the lines? return to the item that I started with, which is the (Mr Winbourne) Can I just deal with those lines and picture of the building because I think everything come back to this in a moment? Those lines are the depends locally on this and I stress locally. I have centre lines of two eight metre tunnels and not, as we already explained the size and nature of the tunnels. are led to believe on this submission, something If you look at the page which is headed 632, which is under seven. Within the eight metres you have about the third or fourth page of this thing, the one which a metre thick wall of the tunnel, so it is about seven shows the entrances going across the basement metres on the inside. What you have on the outside yard— of the eight metre tunnel is a band of what is called compensation grouting, which is approximately five 12501. LORD BROOKE OF ALVERTHORPE: It metres, but it is not a uniform five metres because this is the one with the pram in the photograph, is it? is heavy concrete injected under pressure probably (Mr Winbourne) Yes. Thank you. The outer walls of over a period of—from my experience of the Jubilee the building originally are approximately where you Line—anything up to two years depending on what see the retaining wall on the right-hand side of the they are doing, a very long time. That means that upper right picture. They have taken away part of the each tunnel eVectively in construction terms is not building, which is the basements and there are vaults under seven metres, it is about eighteen. I am talking under the pavement as well now. So people like Mr about the diameter and not the circumference. Payne who have a basement or what an estate agent Secondly, we have two of them and they diverge at would call a lower ground flat have that walkway or this point. You will notice that they widen out. Why? yard or whatever you want to call it between It is because they are going towards what is called a themselves and the road. That used to be part of the shaft. building. Taking away that part of the structure weakens the structure in some ways. Equally, what else have they done? They have taken Georgian 12499. LORD JAMES OF BLACKHEATH: Could houses which are vertically divided properly, which Mr Winbourne be given the marker to follow this, carried a certain amount of loading on their floors please? (Same handed) and that were built as townhouses for people of

21 wealth in 1830. They were converted into a very large 38 Hyde Park Gardens, Architectural Building News, 1953 number of flats, they were a bilateral conversion, (SCN-20080507-016) according to this 1953 article and I stress that because Committee Ref: A67, Conversion of fifteen houses into flats: 24- Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

1016 committee on the crossrail bill: evidence

7 May 2008 The Petition of John Payne it is important, it is nearly 60 years ago. Since that 12502. CHAIRMAN: Is this in Bermondsey? time the weight of stuV in buildings has virtually (Mr Winbourne) Yes. It is the only example in doubled because of modern kitchens, bathrooms and London of an emergency intervention point and it is fitted furniture. Instead of having the servants with on a smaller Tube line, as I have just explained. It is next to nothing on the top floors and down in the far smaller, it is half the size in length straightaway basement or wherever it was, what you have is very because you have got a seven or eight coach Tube intensively used buildings such as we all might live in train, you have not got a 12 coach full-size train going if we can aVord them and so on and so forth and they there. What it is is a permanently dimly lit island are very, very heavily loaded, much more heavily platform with two lines either side and an entry shaft loaded than they might have expected in 1953 when and all you can see on the outside in an arch in they converted it very, very well for the Church Warden’s Grove is that it is the London Fire and Commissioners for what I believe was then some of Emergency Authority’s access and it is private, there their social housing originally. You have got vertical is a sign on there. That is the only indication that it is houses with flats, some of which cut across. You have there from the outside because it is in a railway arch. got basements taken away. We should not be looking That caused havoc to an adjoining property that I at a little black bit in the middle of the plan, we should personally dealt with and I had a series of files on be looking at everything to do with the entire block that. I am speaking directly from practical experience right up to the curtilage because that is what is of a very similar situation because I would direct your constituting the Grade II listed building, not Mr attention again to that picture. You will see how the Payne’s flat nor just the block that they choose to line of— show on their minimizing drawing of the black core part. If you take away structures right at the front 12503. LORD BROOKE OF ALVERTHORPE: Is and put staircases across, that means—and you are that a listed property? on Georgian footings—it is much more vulnerable (Mr Winbourne) No. It was a very ordinary industrial from anything pushing from underneath than it property used as a recording studio which was ruined would have been if it had been left alone in the first and a paltry amount of compensation was paid place. It is simple, basic surveying stuV is what I am because of the state of the law in this matter which I saying. I am not a structural engineer but I have done will come to later. Now, if I can return, please, to the enough building surveys in my time to know that this matters which are on the drawings here—by the way, matters. I have also encountered on the Jubilee Line if I speak tersely, my Lords, it is not tersely to you; it very serious settlement cracks which Crossrail choose is tersely because of the scheme. I hope that will be to dismiss. I had a very serious case referred to me understood. which never got finished in the courts, but I have a pile of papers this high where property was damaged 12504. Mr Winbourne, could we go through this in on the Jubilee Line and the livelihood of those in the order that— there was ruined and it was due to the tunnel and it is (Mr Winbourne) I will try to do that but I wanted to a much smaller tunnel. The Jubilee Line tunnel has a set the scene as to what I was talking about. On your cross-section area of only 20 square metres and that tab 10, JPA 10, I am not happy with the drawings that is without the compensation grouting around, which have been put in, which is the next series of drawings, in their case is about a three metre band. In this case because when you see a scale it is rare and it is very we have a bore face or cross-sectional area of 50 diYcult to measure anything. Crossrail have had 19 square metres and on everything else it is similar. We years to deal with this—19 years to deal with this— have 12 coach-size trains going down these tunnels, and they have not produced (and this is Mott that is the same size as on the Thameslink Line. There McDonald who I know can do better; they are is only one station built which is similar to the eminent engineers in the business and I am perfectly stations that will be on this route and that is the new certain they can do better) proper measured drawings St Pancras International Station of the Thameslink scaled out correctly as they should. These are not. My Line where they built a concrete box and then put the Lord Chairman, these would not pass muster in an trains in afterwards. It was a much simpler ordinary county court, in my opinion. Solicitors engineering exercise than this one by far. On the would ask for further and better plans, and they Jubilee Line there is nothing comparable except for would get them. the fact that there is one shaft, but that it is not a shaft, it is an emergency intervention point. I strongly 12505. CHAIRMAN: I dare say they would, but recommend that this Select Committee goes and has so what? a look. It is at Southwark, at a place called Warden’s (Mr Winbourne) So what? I think they are Grove and this is where I dealt with this case that was misleading—seriously misleading—and I propose to referred to me to see whether we could do anything show you why. They go to a conclusion that there is more about the compensation. “negligible” or “nothing”, but how do they get to Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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22 their conclusion? If I look at the plan which is the one (Mr Winbourne) Yes, but I do not trust it. headed “Section AA Details”, that is that one like that. Perhaps we could have it up. I am pleased we 12507. On what basis do you say that the metreage have the coloured version. First of all, I would make from the basement of Stanhope Place down to the a point about the building not just being the black bit crown of the tunnel is 14 metres? but being the whole block going to the entire (Mr Winbourne) Because, as I have explained, the curtilage. As you can see, if you look at the building tunnel is not seven metres across, which is what those in the entire curtilage, both tunnels, as shown there, circles show. EVectively, the structure is 18 metres— touch the building in terms of vertical property it is much bigger. ownership, if I can put it that way, before we get on to structural touching. I have already explained how 12508. Have you asked the Promoters what their the tunnels are minimised. In this case I have precise figure is for the depth from the basement of managed to measure, because at least there is a scale the property to the crown of the tunnel? on this sectional plan, and according to that scale I (Mr Winbourne) Yes, and no, my Lord. Can I find it showing the tunnel as being about seven explain? I went all through this, I thought, metres. That is all. In other words, it is minimising the reasonably well, not perhaps as vehemently—more tunnel from the plan point of view. The tunnel is, in politely—in the House of Commons Select any event, even minimised. Both tunnels are under Committee. Mr Mould was there then. Although he the building, which in my view does not stand a interrupted a couple of times when I was giving chance. Furthermore, there are no scale drawings of evidence at various points, as barristers sometimes the top. In the top section, as you can see, Section AA do, he did not cross-examine me. Therefore, as far as Details, they say there is Made Ground and Terrace the Commons Select Committee is concerned, if it is Gravel, on the left-hand side. They do not say how like an English court, my evidence-in-chief stood. I much or what. They have had ample time to do test- am simply saying this evidence has been known, bores, and so forth, and I know that TerraQuest have except that I am going further today, my Lord. been all round doing that sort of thing all over the place, with notifications to everybody in London. So 12509. So the Commons accepted, then, it was 14 they must have done test-bores and yet we are not metres? told what the Made Ground Terrace Gravel is. It (Mr Winbourne) I was not cross-examined, my Lord. could be important here. We talk about the integrity It was my evidence-in-chief. of the London Clay. Then, my Lord, I can tell you that I have carefully made a little measurement using 12510. MR MOULD: My Lord, if I may say so, it a post-it note and a marker of their measurements on may help the Committee to know that Mr the plan, and to my surprise I find that the bottom Winbourne, in the Commons, covered a very wide measurement, which says 29 metres, turns out to be, range of topics. It is fair to say that the burden of his give or take, the same length as the one called 26.6 argument was to do with the availability of preferable and the one called 26.9 vertically above. There is no alternative routes. Whilst he touched on a number of diVerence. This is purely a line drawing which is matters which are more local to Mr Payne’s property, indicative. Even the 20 metres. I would invite any they were very much subsidiary to the main thrust of person—this is almost third-form stuV at school—to his case. It is fair to say that the Commons made no check that themselves, with respect to your findings about factual matters but made no Lordships, please. So I am saying that here is a recommendations in Mr Payne’s favour in their drawing which is unreliable, on which a conclusion is Special Report. based. If the drawing is unreliable the conclusion, therefore, must be unreliable. I am simply saying, why on earth have Mott McDonald—who must 12511. CHAIRMAN: Thank you, Mr Mould. (Mr Winbourne) know perfectly well what they are doing—not Perhaps Mr Payne can deal with produced a proper scaled drawing, scaled plan, every this. This is for him, not for me. time, with a proper scale on it? 12512. MR PAYNE: Absolutely. On the floating slab track issue, to save time I will dispense with the definitions—I am sure the Committee is well accustomed to the term “floating slab track”. SuYce 12506. LORD BROOKE OF ALVERTHORPE: Is it to say it is inexcusable to use anything other than it not really not whether the scale is accurate but we the best construction practice when designing the are back to metres. underground sections of the railway. The buildings

22 and people living above are not protected by normal Stanhope Terrace), Section A-A Details (SCN-20080507-017 planning regulations. The human cost eVect of and -018) building the track support to a lesser speciﬁcation Committee Ref: A67, 25-28 Hyde Park Gardens (including 22 Processed: 14-08-2008 20:04:04 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of John Payne will be permanent, not temporary. There are two they so correct in their allowances for error? Do they main issues here: one, the design should be better include for such things as inclines, bends and than 35 decibels, and, two, my building satisﬁes the braking? There is no possibility to carry out noise- criteria as per the 15-metre rule which was brought in mitigating measures after the Bill, as you can do for by the House of Commons. motorways and airports, for example, by providing hedges, fencing and double-glazing.

12513. CHAIRMAN: Mr Payne, as you are on your 24 feet, and I have looked at your Petition again, it does 12520. The second point is the 15-metre rule. not make it very clear what it is you want us to do. Crossrail say my building will not qualify. Can we have JP2, please? This is basically an old Mott 12514. MR PAYNE: I am trying to explain that McDonald engineers’ drawing on which I now, my Lord, if I may. superimposed information: the Crossrail Engineers Assessments Building Response Assessments, 1994. 12515. CHAIRMAN: I think it would be a good As Mr Winbourne said earlier, in unrefuted minutes thing if you did, because perhaps we can concentrate of evidence of my witness at the House of Commons on that. Select Committee. That is the Annex A, and was supplied to me by Crossrail before the Crossrail

12516. MR PAYNE: There is a thread going Private Member’s Bill was slung out in 1994.25 I think through here concerning the floating slab track in the Mr Winbourne has explained this diagram already. design specifications. Can I proceed? 12521. I would now like to go to JP3, please. 12517. CHAIRMAN: Yes. 12522. CHAIRMAN: Mr Payne, you said you were 12518. MR PAYNE: Can I deal with the two issues going to tell us what you wanted us to do. here? The first issue is that the design should be better than 35 decibels, and here I have a report from an 12523. MR PAYNE: Yes, I am just explaining my eminent person, and I do not see a great deal of situation. diVerence between the requirements for recording studios and my situation. I am from a special 12524. CHAIRMAN: Can you not summarise what building; I live and work on the lower ground floor it is you want us to do, and then go back and— and I need my sleep. A recent report by the scientists, which is on the screen now (it is exhibit JP1 in the folder) from Imperial College London, and other 12525. MR PAYNE: This will not take long. I have a very short statement, really. It is not very long. I am European institutions, including23 a Dr Lars Jarup, has found that volunteers’ blood pressure increased trying to compare the noise that I experience right noticeably after they experienced a noise event and now from the Central Line, which is those yellow noise louder than 35 decibels. This eVect could be lines there. seen even if the volunteer remained asleep and so was not consciously disturbed. 12526. CHAIRMAN: Mr Payne, please, will you listen to me? Will you tell us what you want us to do? 12519. The Promoters are, therefore, building You can go back to explain why later, but let us start something which is potentially dangerous to health. oV with finding out what it is that you are aiming for? This is unnecessary, particularly in the scope of things when the marginal monetary costs of floating 12527. MR PAYNE: I am trying to establish that the slab track, or better, over and above what they are measurements— designing anyway, is punitive. Currently, floating slab track will be utilised on a stop-start basis. Surely 12528. CHAIRMAN: You can establish anything a cost-saving could be made being continuous, you like but tell us what you want us to do, as a therefore saving on joints. This is a fraction of the Committee. cost already racked up by the Crossrail team, including salaries. The technology is available; why 12529. MR PAYNE: Under the 15-metre rule, if you do they not use it? Am I correct in interpreting that? consider that my explanations here are correct, as per What Crossrail are saying with their design standards my expert witnesses explanations too, then my is that it is unfortunate that our health is possibly building does qualify for floating slab track. going to suVer due to their proposed scheme. Are 24 23 Stanhope Terrace), Section A-A Details (SCN-20080507-022) whilst people are sleeping, says study, Imperial College London, 25 http://www3.imperial.ac.uk, 13 February 2008 (SCN-20080507- StanhopeCommittee Terrace) Ref: A67, showing 25-28 Hyde distance Park Gardensto east (including bound and 22 019Committee to -021) Ref: A67, Aircraft noise raises blood pressure even westbound tunnels of the Central line (SCN-20080507-023) Committee Ref: A67, Plan of Hyde Park Gardens (including Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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26 12530. CHAIRMAN: That is what you are wanting? 12540. Anyway, if we could move on, I have some more exhibits here. Could you go to exhibit 4 first 12531. MR PAYNE: Yes. I am sorry; I am not an please in the folder. One of the things with Crossrail expert on this. I am trying to do the best I can. is they have done no internal surveys whatsoever, so far as I know, and at the front of my building, which I think you will probably remember when you looked 12532. CHAIRMAN: That is the objective. Very at it, at the basement at the very bottom there, that well. unfortunately does not come out very well, that is a window, but that is an air vent (indicating). This air 12533. MR PAYNE: Okay. So here we have the vent goes down and under27 the building and up into Central Line running east and west. We have the a large light well. Next exhibit, JP5, this is where the running tunnels of Crossrail going like that as well, underground connection from that front vent comes and you can see my property right there. This is really up inside the light well. So you have got a shaft a hot-spot because there is noise coming from all joining these two grills from the front to the back of sorts of directions, and of course we get accumulative the property which go underneath the building. I do noise, as we heard earlier this morning, from two not think this has been taken into consideration at diVerent directions which are almost at right angles all. to each other. 28 12541. If we move on to exhibit JP6 you will see the 12534. LORD BROOKE OF ALVERTHORPE: actual light well. This light well is about 70 feet high Are you saying that you can hear the Central Line? and you will see that little glistening object there, that is in fact the manhole cover at the bottom of it, which 12535. MR PAYNE: Yes, the yellow lines here. I can I am indicating on the screen there, these special site hear a lot of noise coming from the Central Line and conditions being at the crossroads with the it is a much smaller railway, as Mr Winbourne said underground running tunnels. earlier, if you compare the size of tunnels and look at the Mott MacDonald diagrams. I know the 12542. LORD JAMES OF BLACKHEATH: Is this technology is diVerent but I have a few other exhibits supposed to taken with you lying on your back later to show you what has been going on really with looking upwards? the Central Line in comparison with the noise that I am experiencing. 12543. MR PAYNE: I am looking down hanging over the light well. 12536. LORD BROOKE OF ALVERTHORPE: Is there any evidence of the volume of the noise you are presenting to us? 12544. LORD JAMES OF BLACKHEATH: I just wondered how the manhole cover came to be at the bottom. 12537. MR PAYNE: I have my next-door neighbour with me and as I go on I will explain an event that happened about a year ago. 12545. MR PAYNE: That is right, again the light and air well, it carries all the service pipes and everything, and Crossrail are saying there are no 12538. LORD BROOKE OF ALVERTHORPE: special features. Do you have readings? 12546. LORD JAMES OF BLACKHEATH: 12539. MR PAYNE: No, but I have evidence to Thank you. show that some engineering works happened that altered the sound and why it happened. Incidentally, the pink line and the green line show the distances 12547. MR PAYNE: If you ever put your ear from my flat to the Central Line and, as I say, the against a chimney, especially a lined one with a noise is quite considerable, and they are up to 90 stainless steel liner, you can hear a pin drop. metres away, and I am saying basically these running tunnels or the compensation grouting around them, 12548. LORD JAMES OF BLACKHEATH: I did and whatever fissures that join all these things up, will not mean to distract you. I just wanted to get it clear. end up much less than what Crossrail say. There is a 26 big diVerence in distance. I know the track (SCN-20080507-024) technology is slightly diVerent but, all in all, the scale 27 StanhopeCommittee Terrace Ref: A67, (SCN-20080507-025) View of an air vent at Stanhope Terrace of it would indicate there is going to be a much bigger 28 sound impact than what their models suggest. (SCN-20080507-026)Committee Ref: A67, View of an air vent inside a light well at Committee Ref: A67, View of a light well at Stanhope Terrace Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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12549. MR PAYNE: So these large ducts going sleepers with these concrete ones, so I am saying horizontally at the front at basement level, and also I basically that they are taking way the heavy timber am talking about special features of the block and the sleeper track supports and by inference replacing it apartment’s floor is concrete, and possibly, judging by those concrete sleeper track supports. There was a from my architect’s journal, there are probably stone marked increase in noise reported by many residents. slabs underneath there as well so these are all special My neighbour will also testify to that. We believe that features that I consider would amplify these noises. the concrete transmitted the vibrations from the train Do you have any comment on that, Mr Winbourne? axels more markedly than before. Surely the timber (Mr Winbourne) Yes, I think it is axiomatic that if must have deadened the vibrations. This is the only you have any kind of shaft or pipe or anything of that conclusion I could get. If they were refurbishing the sort it will carry noise. The situation of putting a wine track surely this was a good opportunity to design it glass to the wall comes to mind. It is, I suppose, third- with a better track support to help mitigate the noise; form physics which is about when I stopped doing but they did not. physics actually because I did not like it, but I do remember it! The point I would make is that Mr 12551. Points of concern to note about this, there has Payne’s building was designed the way it was apparently been no consultation with residents about designed, it was not designed for or against Crossrail. this extra noise nuisance or social cost; it is just Crossrail comes along nearly 200 years later and imposed. Furthermore, when I asked Graham King expects to not bother and I do not think you can do of Westminster City Council he also had no it that way. I do not accept either—can I just information to hand. Is there any regulatory body interpose a point, I know I am here as a witness with looking into this? These are works that go on on the your leave sir—Mr Potel the witness that was spoken underground railway with apparently no about before, apparently (we did not know this) has consultation with residents. They just do that. This particular knowledge of construction and acoustics could well reflect on what is going to happen on what which we only found out about today, and that is a is Crossrail when they build it to their existing track simple fact that we simply did not know, and that is specification, they cannot go backwards. one of the reasons why it is not simply what you have at the back of the bundle here but there is more to it that he could give evidence on and it would be of 12552. During the recent Mayoral Elections, the considerable importance to these Petitioners and campaigners had policies that would mean greater others. frequency of trains and later operating of trains. Again, will there be any consultation with residents so aVected by these anti-social time zones? At the 12550. Thank you. If I continue now with further time of the 1994 Crossrail Private Member’s Bill, comparisons, as I said before, with the Central Line Westminster City Council also undertook a report on noise that I actually experienced, this is an operating the Central Line. A noise reading was taken in my underground railway about a quarter of the size of flat. A copy of this report has never been forthcoming Crossrail, as I said. The description of recent events despite me asking. Generally a common reply from experienced29 with the Central Line are casting further Crossrail to a pertinent question is “There are doubts on Crossrail noise predictions in the running remaining technical issues that can only be worked of the railway. Now could you move to exhibit 7 out later at the detailed design stage.” We are told please. These are pictures of recent engineering about the much-heralded Crossrail document works carried out on the Central Line. You can see “Construction and Community Relations Strategy here this is actually the station platform at Lancaster Framework”. I indeed replied recently to the draft Gate and these are in fact, I believe they are timber with a couple of fundamental points. These are sleepers with the running railway on it so they basically to safeguard people after Royal Assent, obviously give a good solid bed to the railway. In which looks like all we have got to rely on, firstly, that January 2007 engineering works were carried out. there should be an independent arbiter on any They suspended it several weekends in a row and in disputes/claims not established by CTRL as stated. the middle of the night you could hear these Secondly, as intended after Royal Assent the pneumatic hammers going like they were next to your monthly report which is in this document, including bed. They were transmitting the sound 80 or 90 detailed design, would only be given to local metres away. You could hear it so clearly. I was authorities on request. I suggested reporting to local trying to think what was going on so I went down on authorities should be automatic. From this the platform (when the railway was open again of indication it would imply that residents’ associations course) and this is now exhibit JP8, and you can see and Petitioners like myself will not be consulted on what was going on, they were replacing the wooden undecided technical decisions aVecting their 29 properties but local authorities might be. Is it the Central Line (SCN-20080507-027 to -028) therefore intended that residents’ associations and Committee Ref: A67, View of engineering works carried out on Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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Petitioners like myself will be shut out of this process? 12559. CHAIRMAN: I hope that it will be a very Mr Winbourne, what dangers can you see in this? few minutes. (Mr Winbourne) A great deal I would have thought. You have concentrated on the after use of the railway, if I can call it that, because we have 12560. MR PAYNE: It will be a few30 minutes. The comparisons with the Central Line, which is in itself last of my exhibits is JP9 which is a long way from the bad enough. What you have not mentioned Central Line or Crossrail, but again I have particularly is the fact that you are looking at superimposed my building on top of it. It does show something like a three- or four-year construction the twin tunnels in operation below the fragile period with a huge construction underground which building and it is a makeup picture of the twin tunnels is not being addressed as far as I can see and you are on the motorway M20 near Folkestone and I have adjacent to what amounts to a huge ghost station. superimposed my block to try and give a daylight That is why the tracks divide. I made the point earlier, impression of the proximity of the proposed my Lord, about the tracks dividing towards the so- Crossrail shallow construction and its eVect. It is not called shaft. Whatever they are saying now about exactly to scale, but there are some interesting people walking alongside, I think it is probably a parallels. If you can imagine what that looks like, you problematic issue because an EIP (emergency can see it in the daylight. I have one last question for intervention point) which is what this constitutes, an Mr Winbourne on this. Will floating slab track solve island platform with low lighting permanently on, as the problem? (Mr Winbourne) on—and there is only one in London—the Jubilee I do not believe it will. It will help, Line with the tracks on either side so that a train can but I think your building is more at risk than floating be stopped there, in this case we are talking about up slab track can suYce. Nevertheless, I think it should to a 12-coach train, full size, for people to get out and be a given on the scheme. evacuate. It is not simply for firemen or police or whatever to get in. Imagine if at 7/7 for example and 12561. MR PAYNE: Moving on now to Hyde Park you had a bomb where you wanted to stop a train, and the Victoria Gate ventilation surface structure, and you could not get into the station; this is what it as I call it, and emergency intervention shafts or is about. If stations are more than one kilometre points or maybe you could call it a ‘ghost station’ or apart, it is mandatory that there be an emergency something like that, I was handed a new plan by— intervention point.

12553. CHAIRMAN: Mr Payne, you are meant to 12562. CHAIRMAN: What has this got to do with be speaking to your Petition. There is nothing about ﬂoating slab track? emergency intervention shafts or 7/7 or anything of the sort in there. You must stick to your Petition. We 12563. MR PAYNE: I have ﬁnished that section cannot hear anything that goes outside your Petition. now, my Lord.

12554. MR PAYNE: My Petition actually does have something on the air vent. There was originally an air 12564. CHAIRMAN: Well, what has it got to do vent, an EIP, at Victoria Gate. It is one of the items with your Petition? in my Petition. 12565. MR PAYNE: My Petition exactly says— The Committee suspended from 4.27 pm to 4.39 pm for a Division in the House 12566. CHAIRMAN: That you object to it. 12555. CHAIRMAN: May I ask what the point you are making at the moment has got to do with the 12567. MR PAYNE: Well, I am just concerned introduction of ﬂoating slab track under your house? about it. My Petition “objects to the Bill due to proper planning and clarity for mitigating eVects of 12556. MR PAYNE: Yes, it is all about noise construction of the emergency intervention point and predictions and measurements. The 15-metre rule, if vent in Hyde Park at Victoria Gate which is situated my property did satisfy— extremely close to the block and its access routes. In particular, removal of any spoil by road and 12557. CHAIRMAN: What has it got to do with the potential diverted traYc chaos caused by any closure ventilation shaft in Hyde Park? of North and West Carriage Drives”, and that is in my Petition. 12558. MR PAYNE: I will be coming to that in a 30 minute. the proposed Crossrail tunnels (SCN-20080507-029) Committee Ref: A67, Petitioner’s impression of the proximity of Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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12568. CHAIRMAN: Yes, it is. that my experience from Wardens Grove, my Lord, in Bermondsey was much closer than that, the building was next door to it, and it was gone into in 12569. MR PAYNE: There is still no confirmation depth. There is something else I would wish to about the real size of the structure, or maybe there is mention and that is that I believe it is the same a little bit more now, or that lorries carrying the spoil gentleman, that one of the experts that was on the will not use Victoria Gate. If there is any blockage, papers that I was looking at in connection with that traYc is gridlocked in Brook Street and into was Mr Rupert Taylor and I assume it is the same Mr Stanhope Terrace, Sussex Square, and residents’ cars Rupert Taylor as we had in this room, so the cannot even leave our driveway, which you saw, I suggestion that there was nothing like that on the believe. These decisions again appear to be subject to Jubilee Line does not follow and I think that your later stages in Crossrail planning. I have had some Committee should be aware of that. reassurance from Mr Mould on this this morning, but, as far as I can see, there is no categorical sort of statement at the moment. The Royal Parks face a 12570. LORD BROOKE OF ALVERTHORPE: huge loss of amenity and appear to be just hamstrung You are saying that there is a station there? by a major infrastructure project. Crossrail should (Mr Winbourne) I am saying that, if it is an release details of changes in a statement to all emergency intervention point, then it is almost Petitioners, not just like a press release or occasional certainly in the form of an island platform between letter. Surely Crossrail do not have to jump through the twin tunnels and that is why the lines diverge, as hoops to provide these assurances. Coaches they do on any railway with an island platform, and incidentally, and this is in reply to Mr Mould earlier that is the reason for that configuration and the shaft saying that large vehicles do not normally use the will be in the middle. park, in fact coaches do use the entrance at Victoria Gate, and it is very busy there in the summer and with 12571. MR MOULD: I am sorry to interrupt, Mr large music festivals, so we do have some experience Winbourne, but it may be helpful just to make it clear of what happens, but on a very temporary basis. I that this is to be an emergency intervention shaft understand that this structure at Victoria Gate could which will have a short cross-passage between the well be there or the construction could be over seven running tunnels at the foot of the shaft, and that is the years. Mr Winbourne, do you have any comment sum total of the physical structure that will exist in on this? order to enable the shaft to operate. (Mr Winbourne) Very quickly because time is short, my Lords. I was going to say this at the point when 12572. CHAIRMAN: That is what I understood. the bells rang. I am looking at the previous drawing (Mr Winbourne) That is what they say, sir. I do not that we had, which is this one in Mr Payne’s believe that that will suYce. submission (indicating) and I am trying to be quick because I am conscious of the time. You will see the 12573. All right, we hear you do not believe it, but tunnels diverging to the structure that was shown that is what they say. there. Now, I do not have a problem with the fact that (Mr Winbourne) I have said what I have said about they have altered the structure—I do not think you that. I believe Mr Payne has some more things. need to go into that—but the point I was seeking to make is that, if, as I believe is essential, there were to be an island platform, it would be stretching, and that 12574. MR PAYNE: No, I am just about finished. It is why the tracks diverge, towards the structure we is back to Mr Mould. are talking about, Mr Payne’s building. It could be within a very short distance and we are talking about 12575. CHAIRMAN: Mr Mould, what do you want not a driven tunnel here, but hand-mined. It is like the to do about this? stations, they are all hand-mined out. It is a totally diVerent construction process and I think that that is 12576. MR MOULD: Well, my Lord, I do not want being, if you like, minimised in the evidence, but I to ask Mr Winbourne any questions. I want to think it is terribly important for your Committee to correct one or two matters of fact, but it is much understand this, that that is what we are looking at. better if I ask Mr Berryman to do that. These are vast, cavernous stations. The fact that it is a ghost station without any ticket halls or anything does not mean that what is down at the bottom of the 12577. CHAIRMAN: I think that would be right. shafts is not important and that is incredibly close to where we are. It is within, I do not know, I suspect the 12578. MR MOULD: So, unless there are any end of the platform will be within about 20 or 30 questions from your Lordships, perhaps Mr yards, in old money, and what I am simply saying is Winbourne would very kindly leave the stand. Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12579. CHAIRMAN: Mr Winbourne, thank you passed over the outside of the lining, which is about very much indeed. another, at the most, 200 millimetres thick. So it gives a total diameter of 6.8 metres, to the extrados of the The witness withdrew whole structure. The point about compensation grouting is that the grouting that is being referred to 12580. LORD BROOKE OF ALVERTHORPE: here is not compensation grouting; that is a diVerent Can I ask one question on access to the park at night? matter; that would not be used on this site where the You say that coaches go in there when there are pop tunnels are being driven by machine, and in very concerts, and so on. competent London Clay. If you were choosing the best location in the world to dig a tunnel of this sort, 12581. MR PAYNE: Yes, they do. you would not go far wrong if you chose this location. 12582. LORD BROOKE OF ALVERTHORPE: So when do they stop them going in? 12591. This plan has been prepared in order to inform the Committee in relation to Mr Payne’s 12583. MR PAYNE: At the moment when there is a Petition. Is that right? large event going on in Park Lane, several days (Mr Berryman) That is correct. before the concert they close North Carriage Drive— and it is just full of lorries and coaches and everything 12592. Can you help the Committee with whether, in delivering bits to that area. Then North Carriage your judgment, this is an accurate plan, insofar as the Drive is closed for the whole time and it is used as a dimensions shown on it are concerned? service point for various large vehicles coming in and (Mr Berryman) This is an accurate plan. I have just servicing the concert. Then you have the series of checked with the sections deposited with Parliament concerts and then afterwards they have all the taking as to the accuracy of the dimensions, and it is correct. it apart going on; lorries dismembering it and going in and out. 12593. Allowing for limits of deviation, both horizontal and vertical, Mr Berryman, is there any 12584. CHAIRMAN: Mr Payne, have you any prospect whatsoever that upon construction either other witnesses? the westbound running tunnel or the eastbound running tunnel in this location will be at a level which 12585. MR PAYNE: Only this question about Mr is less than 15 metres below the basement of Mr Potell, who evidently— Payne’s property? (Mr Berryman) There is no possibility of that. The 12586. CHAIRMAN: Is he here? limits of deviation would only allow us to lift the tunnels by a maximum of 3 metres, but in this 12587. MR PAYNE: He is not here, my Lord. location, because they are close to the Central Line tunnels and pass beneath the Central Line tunnels, 12588. CHAIRMAN: In that case you have no other there is no possibility of raising the tunnels at all. So witnesses. Is that right? this will be the—

12589. CHAIRMAN: I have no other witnesses. 12594. CHAIRMAN: It is 23.7 metres, is it? (Mr Berryman) That is to the crown of the tunnel MrKeithBerryman, recalled from the bottom of the basement, my Lord.

Examined byM31rMould 12595. MR MOULD: The other vertical dimension 12590. MR MOULD: Mr Berryman, we have the shown, I think, is to the track. cross-section in front of us. I would like you, please, (Mr Berryman) That is correct. if you would, to tell the Committee, ﬁrst of all, the dimensions of the Crossrail tunnel which we see in 12596. BARONESS FOOKES: Noise emanates cross-section both westbound and eastbound on the from the train on rail, does it not, which is at the plan before us? bottom of the tunnel? (Mr Berryman) The internal diameter of the tunnel is (Mr Berryman) That is correct, my Lady, although 6 metres, my Lord. The lining of the tunnel is 300 we are talking here about groundborne noise and I do millimetres thick, which means that the diameter, the not want to stray into Mr Thornely-Taylor’s issue. extrados, of the lining is 6.6 metres, and then there is a layer of grout where the tunnel-boring machine has 12597. LORD JAMES OF BLACKHEATH: Mr 31 Mould, because of the very complex nature of this Stanhope Terrace), Section A-A Details (SCN-20080507-022) discussion and the confusions we have, it would be Committee Ref: A67, 25-28 Hyde Park Gardens (including 22 Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of John Payne hugely helpful if you and Mr Berryman between you 12602. The final question I want to ask you about is could just establish the points of diVerence with the this: there was reference to a site in relation to the figures that Mr Winbourne gave us and describe Jubilee Line Extension. I think it was at Warlands where there is a variant between what Mr Berryman Grove. Do you recall that? is saying and what Mr Winbourne gave us and why. (Mr Berryman) I do recall that. (Mr Berryman) May I respond to that, Mr Mould? 12603. Can you just shed any light on that for the 12598. MR MOULD: That would be helpful. (Mr Berryman) Mr Winbourne was relying on the Committee, from the information you have? documents prepared for the Private Member’s Bill, (Mr Berryman) I have not been able to. I contacted which was deposited in 1992, at which point I one of my staV who actually worked on that project understand the design was proposed to take the and was responsible for ground movement Crossrail tunnels over the Central Line. We decided measurement. The only movement that he was aware not to do that because there is also a sewer known as of was at a location close to Waterloo Station where the middle level sewer number one, and the clearance they had diYculty with compensation grouting, but between that and the Central Lines is very tight. that was in an area which was not machine-driven tunnel—it was sprayed concrete lining—and they 12599. LORD JAMES OF BLACKHEATH: That had some problems with the compensation grouting is very helpful. Would you continue to note such there. That was the only instance that he was aware diVerences as you go on? of—and he is a senior geologist—where any (Mr Berryman) Indeed. significant settlement occurred on the Jubilee Line.

12600. MR MOULD: Mr Berryman, I think those 12604. LORD BROOKE OF ALVERTHORPE:I are the points I wanted to ask you about in relation have a question again. I have a bee in my bonnet, as to the depth of the tunnel and its dimensions. If we you are aware, from the questioning yesterday and turn to the Hyde Park shaft, Mr Payne and Mr now that the Petitioner has raised this issue again, Winbourne raised the spectre of substantial traYc about the Hyde Park shaft and the need for the delays in the vicinity of Victoria Gate. Can you please underground passage running from the road from comment on that as a prospect? Bayswater through to it. I would like to know the cost (Mr Berryman) Yes. Victoria Gate is just oV this of putting that in, if it is readily available. plan—it is about there, where I am indicating with (Mr Berryman) Half-a-million-ish. the pointer. We do not intend to use Victoria Gate at all for lorry access to this site; that will, instead, come from Marble Arch, which is up here, and we will use 12605. I am just wondering, in the light of what was the North Carriage Drive as a two-way road to said yesterday and the further representations which provide that access. have been made today, whether there is not any possibility whatsoever of reﬂecting on whether or not 12601. There was a suggestion that it would be the administrative machine could not be moved to necessary to provide some sort of ghost platform for avoid having to put that additional passageway in. emergency access purposes at this location. Can you (Mr Berryman) My Lord, the diYculty is that you help the Committee: is a walkway part of the have to have some kind of entrance structure to get standard design for the Crossrail running tunnels? into the shaft, wherever you put it, and it is extremely (Mr Berryman) That is right. On all the running diYcult to agree with the Royal Parks any kind of tunnels there is a walkway provided at, roughly, ﬂoor structure at all which is in the middle of the park, so height of the carriages, so that when the trains are to speak. The reason that we have gone for this being evacuated, in the event of a breakdown or some location here is because we can landscape it by other emergency, people can just walk out of the door moving the existing, I think they are, wrought iron and along the walkway. There are management fences around there in a manner which makes it look issues around that, of course, but that is the principle as if it is part of the park, if you see what I mean. To of it. Those walkways are always on the inside of the have a structure just in the middle of an open area tunnels. In other words, where two tunnels are would be very diYcult, but I am quite happy to go running parallel to each other the walkways are on back to Royal Parks and talk to them about it and see the side which is closer to the other tunnel. What we if we can come up with some kind of arrangement will have at this shaft is a vertical shaft down here which is cheaper. with a passageway going across that walkway on this side and a passageway going across the walkway on the other side. That is the sum total of the works at 12606. CHAIRMAN: This one is in this Bill, it is this shaft. 1.13. Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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(Mr Berryman) It is, my Lord. are in terms of vertical depth of the running tunnels from the surface. 12607. MR MOULD: Those are all my questions. 12620. MR PAYNE: It is JP2? (Mr Berryman) These dimensions, my Lord, are 12608. CHAIRMAN: Now, Mr Payne, it is your taken from the 1992 scheme which was proposed as a chance to ask Mr Berryman some questions. Private Member’s Bill, which I think from recollection was sponsored by British Rail and Cross-examined byMrPayne London Underground Limited. The fact that in plan our alignment is very similar is not relevant because 12609. MR PAYNE: I really stick by my expert in cross-section the alignment is very diVerent, we are witness’s measurements as per his unchallenged going much deeper than they were wanting to go. evidence in the House of Commons and my superimposed diagram, and obviously this is where 12621. BARONESS FOOKES: I think you said we beg to diVer. that in that scheme in 1992 Crossrail went above the (Mr Berryman) We do not beg to diVer, Mr Payne. Central Line and this goes below. The fact of the matter is the Bill allows us to build the (Mr Berryman) That is correct, my Lady. line at a certain level and that line will give a clearance of 23 and a bit metres below your house. There is no 12622. MR PAYNE: This is oV the same set of plans begging to diVer involved. I am telling you where the and drawings where Crossrail was going under the alignment goes and that is the end of the story. Central Line. (Mr Berryman) I am sorry, Mr Payne, if the Crossrail 12610. CHAIRMAN: Are you challenging the fact tunnels were 14 metres below the ground level as you that the Mott MacDonald drawings that you showed have drawn them there, they could not go under the us come from a diVerent scheme? Central Line because the Central Line is too deep. We are talking about surveying facts; we are not talking 12611. MR PAYNE: I am saying that putting in the about matters of opinion as to where things could go. other factors like the composition grouting and their We are talking about levels, dimensions and co- measurements— ordinates. I am sorry there is just nothing that we can argue about because there is no doubt about the matter. 12612. CHAIRMAN: Mott MacDonald drawings with measurements. 12623. There is one other plan33 which does show you exactly what I am saying which is part of the bundle 12613. MR PAYNE: Where they put their base level from Mott MacDonald which has not been and their ground level are all very diVerent. superimposed on by myself. (Mr Berryman) That is correct. 12614. CHAIRMAN: Are they from a diVerent scheme? 12624. And that is what we are working on and that drawing goes with this one. 12615. MR PAYNE: They are very similar, are (Mr Berryman) Your house is about here, I think, they not? (indicating)

12625. I think it is between the two little dips on the 12616. CHAIRMAN: Are they from a diVerent left-hand side. scheme? (Mr Berryman) According to my cross-section here, it is not scaled so it is around there somewhere 12617. MR PAYNE: They are from the Crossrail (indicating). scheme. 12626. It is between the two little channels. 12618. CHAIRMAN: In that case, you had better (Mr Berryman) You can see the level of the track at put it to Mr Berryman that these come from the that point on our data, which is 100 metres below Crossrail scheme. ODE, it is about 92, and your cellar is 121.27. That makes it, to my reckoning, 29 metres’ diVerence, so I 12619. MR MOULD: The document that Mr 32 Stanhope Terrace), Section A-A Details (SCN-20080507-022) Winbourne had coloured in which you have shown 33 on the screen is I think an extract from one of our ParkCommittee Gardens Ref: (including A67, 25-28 Stanhope Hyde Park Terrace) Gardens (SCN-20080507- (including 22 assessment reports but the dimensions shown on that 031) Crossrail Ref: P79, Cross section of Crossrail tunnels at Hyde Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 The Petition of John Payne am sorry your diagram here agrees exactly with the 12637. MR PAYNE: No more. information I have just given to the Committee, and here you can see the Central Line and the old middle 12638. CHAIRMAN: Thank you very much. level sewer, middle level sewer number one as it is probably called, and our tunnels go underneath that. The witness withdrew You can see that on your own section. 12639. CHAIRMAN: Do you want to call Mr 12627. As far as I am aware, even in 1994 the tunnels Thornely-Taylor about noise? have always been going underneath the Central Line. (Mr Berryman) No, the tunnels went above the 12640. MR MOULD: Yes please, just to ask him Central Line in the 1994 scheme. I have got a one question, if I may. colleague in the room who actually worked on this scheme and I have just checked with them before I 12641. CHAIRMAN: By all means. sat down. MrThornely-Taylor, recalled 12628. MR PAYNE: This is attached to the bundle Examined byMrMould with a letter from you saying this is 1994. 12642. MR MOULD: Mr Thornely-Taylor, when I opened on this Petition I gave the Committee some 12629. MR MOULD: My Lord, I am very information about predicted groundborne noise level conscious of the time and I think the point is really as for the operation of Crossrail railway as it passes simple as this: as Mr Berryman has explained, we beneath Mr Payne’s property. You heard what I said, have checked the parliamentary plans and sections I think. Can you conﬁrm that what I say was and they set out the depth, subject to limits of accurate? deviation, at which the tunnels must run if powers are (Mr Thornely-Taylor) Yes, it was accurate. granted by this Bill beneath this part of London, and on the basis of that we simply will not be empowered 12643. Thank you very much. Mr Payne has drawn to drive a railway above the Central Line. attention to the fact that he currently experiences noise from the running of trains through the Central 12630. MR PAYNE: I am not asking that you do Line which runs broadly along the line of Bayswater that. I am just challenging— Road. You heard him say that? (Mr Thornely-Taylor) Yes I did indeed.

12631. CHAIRMAN: It is not going to happen. 12644. We have just established the relationship between the Central Line and the Crossrail railway, that is to say the Central Line is running above the 12632. MR PAYNE: I know; that is good news. Crossrail railway in this vicinity. That being the case, can you just assist the Committee which is what is likely in your judgment going to be the principal 12633. CHAIRMAN: So the ﬁgures Mr Berryman source of groundborne noise when both of those has given are unchallenged, are they? railways are operational so far as Mr Paine’s property is concerned? 12634. MR PAYNE: He has produced some new (Mr Thornely-Taylor) The Central Line will remain drawings. the principal source of the groundborne noise, not only because of its shallower depth but because of the (Mr Berryman) My Lord, I am referring to the manner in which the rails are rigidly fastened to the parliamentary sections which were deposited with sleepers, as shown in Mr Payne’s photographs. It this House some three years ago. does not have the beneﬁt of all the vibration isolation features that I have described on several occasions to 12635. CHAIRMAN: Relating to work 113? the Committee, and therefore it is basically a much (Mr Berryman) -13A, my Lord. noisier underground railway.

12645. CHAIRMAN: Is it a jointed track? 12636. CHAIRMAN: That is what the Bill provides (Mr Thornely-Taylor) There are joints on the Central for, that is what it permits. Any more questions for Line; whether there are joints in this particular Mr Berryman? location I have not checked. Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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12646. MR MOULD: In the light of that, can you operating. So not only is there no basis in his argument comment on whether Mr Payne will experience any based on the 15-metre rule; there is simply no benefit at all were Crossrail to be constructed by advantage in terms of benefit to him, or indeed to means offloating slabtrack inthis locationas opposed other residents of the block within which his property to a standard resilient track? is located, were this Committee to require Crossrail to (Mr Thornely-Taylor) No, it would remain the case install a special track form as his position seeks. On that the Central Line was the dominant source of that basis, I would invite the Committee to reject the underground railway noise. point which he has put before you today.

12647. MR MOULD: Thank you very much. 12654. One other matter: I know that in his written submissions Mr Winbourne and Mr Payne have made 12648. CHAIRMAN: Mr Payne, have you got any submissions about the adequacy of the compensation questions for Mr Thornely-Taylor? code. I have made the submission in opening that he is entitled, in principle, in the event that his property 12649. MR PAYNE: No, I have not. sustains injurious aVection by virtue of the impact of the scheme, to make a claim under section 7 of the 12650. CHAIRMAN: Thank you very much, Mr Compulsory Purchase Act 1965. That is the case, and Thornely-Taylor. in my submission that provides him with adequate compensation in accordance with the ordinary The witness withdrew principles of law which govern compensation in these circumstances, in the very unlikely event that he 12651. CHAIRMAN: We can go on to a quarter past sustains damage to his property as a result of the five thanks to the shorthand writers. construction or operation of Crossrail. Thank you very much. 12652. MR MOULD: The principal point which Mr Payne has argued before you today is that the 12655. CHAIRMAN: Mr Payne, there are four Committee should require the Promoters to commit minutes today. Ido not know how longyou want. You to the installation of floating slab track along the have got the final word in this, and if you cannot do it running tunnels in the vicinity of his property. He has in four minutes then I think it is probably better if we made that submission on the basis that on a true come back in the morning. I do not want to rush you; analysis of the dimensional relationship between his four minutes is not a lot of time. property and the running tunnels across the Crossrail scheme he falls within rather than without what we 12656. MR PAYNE: No. Again, I felt under a lot of have come to know as the 15-metre rule. In the light of pressure during that little break we had earlier on, Mr Berryman’s evidence, there was reference to the when we were talking about a large part of my submitted plans and sections and the dimensions evidence from Mr Winbourne to do with shown on those which, as your Lordships will compensation and all the rest of it. I understand that appreciate,govern thedepthat which,subject tolimits Mr Mould would be sympathetic to have that part of deviation, running tunnels must be constructed. read. Is that correct? There is no prospect of Crossrail being constructed at a depth which is less than 15 metres. In fact, it will be 12657. MR MOULD: That is what I have just said. constructed at a depth at which the track is approximately 29metres below MrPayne’s basement, 12658. MR PAYNE: My Lord, if that is fine then I do so on that footing Mr Payne’s case simply falls away. not need to go on any further with that. My closing points now really are that, obviously, I will stand by 12653. In any event, as Mr Thornely-Taylor has just my measurements regarding distance from my explained, given the presence of the Central Line and building properly to the nearest piece of concrete that the predictions which we have for the groundborne is going to cause vibrations, and I will not go back on noise that is likely to emanate from the Crossrail that. railway when it is operating, there is simply no advantage to be gained so far as Mr Payne is 12659. I would also like to add, has anybody actually concerned in having a special track form provided in built a similar-sized railway like Crossrail under a the running tunnels as it passes in the vicinity of his listed building like this? Invariably, before, like the property. The principal source of groundborne noise cross-Channel Rail Link, that follows existing when he is lying in his bed at the present time is the railways or major roads; this is the first time that a Central Line; it will remain the Central Line because tunnel system like this is going to be built under of the physical relationship between the two railways valuable listed buildings. Also, English Heritage do once the Crossrail railway has been built and is not seem to be here to argue the case for us. Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

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12660. On the ﬂoating track issue, I would like to 12671. MS LIEVEN: We are in deep negotiation remind this Committee of a question asked of with Three Valleys. We are optimistic that we may Crossrail by Kelvin Hopkins, MP, who was on the reach agreement, but it is still outstanding at the Select Committee in the Commons. On my hearing on moment. My clear instructions and understanding of Day 57 of the House of Commons Select Committee, the position is that there is no need to worry about reference 16669 he said: “Would it not be reasonable having in-camera sessions; it is all about which plot to to err on the side of generosity to residents by putting take, it is not about the security issues any longer. in a ﬂoating slab track whenever it goes clearly close to They may attend and if they attend it might take an where people are living rather than trying to trim ---“ hour to an hour-and-a-half, but I am optimistic that, in practice, we will settle with them. 12661. CHAIRMAN: Who is this speaking? 12672. I have just spoken to counsel for the Coalition, who is representing both the Coalition -- 12662. MR PAYNE: This was Kelvin Hopkins, MP. 12673. CHAIRMAN: He is representing both of 12663. CHAIRMAN: A Member of the Committee. them?

12664. MR PAYNE: Correct. 12674. MS LIEVEN: He is representing both of them. He is seeking instructions. It seems likely that 12665. CHAIRMAN: We know what their the two Petitions will be presented together. conclusion was. 12675. CHAIRMAN: Good. 12666. MR PAYNE: “because I know that there is a cost to incur”, he went on, “but to trim the cost which, 12676. MS LIEVEN: At the present time, what he compared with the overall cost of the project, is fairly has said to me is he thought we could deal with it in one small, but putting in floating slab track erring, as I say, session—i.e. a morning session or an afternoon on the generous side to residents in this particular case session. He has only confirmed one witness and that is rather than having to fit retrospectively following Mr Michael Schabas. I am not sure whether the complaints or whatever, which might be more Committee has already heard from Mr Schabas. diYcult?” 12677. CHAIRMAN: We have had him, yes. 12667. With regard to the way—and this is in the evidence, basically, that Mr Winbourne was going to 12678. MS LIEVEN: However, he is not yet sure produce (and I do hope that everybody will take an whether it will only be the one witness. We have not opportunity to read through that because it is very received any evidence from them, from either the interesting material)—of joining up the stations as it Residents Association of Mayfair or from the stands now, Mr Winbourne was going to substantiate Coalition, but I think it would be fair to say that if it is the very high cost savings that will be made. Following Mr Schabas who gives evidence then he gave evidence the failure of this Crossrail Private Member’s Bill in on the Residents Association of Mayfair Petition last 1994, there have been 14 years to revisit the way of time. joining up the stations in a better way, giving an improved cost-benefit. In that time, I have never been 12679. CHAIRMAN: If one looks at the Petition it consulted. I have lived in that area for 14 years; appears they are talking about alternative routes. nobody has ever consulted me, or heard of a transparent debate on the matter. I now contemplate 12680. MS LIEVEN: Yes. That has certainly been for Crossrail, like Ken Livingstone’s recent quote on their principal concern in the past, although it is fair to the Olympic Games budget, he had conned the say their Petition raises many other issues. So I think Government. Then I finish. that is their principal concern. I understand we have not yet reached agreement with the Royal Docks Management Authority, although we are also 12668. CHAIRMAN: Thank you very much. optimistic that we will do so. The Port of London, I assume, will not come, on the basis of my knowledge 12669. MS LIEVEN: My Lords, do you want an of what the issues are. I think it is just a question of update on where we are tomorrow? signing oV the agreement on that one. I am also assuming that Landor will not come. So we definitely 12670. CHAIRMAN: Yes. At the moment, I am have the Coalition and the Residents’ Association of looking to see what the House of Commons did about Mayfair. Mr Walters is closely associated with the this Petition, which is on page 53. Tomorrow. Residents’ Association of Mayfair, and then we have Processed: 14-08-2008 20:04:05 Page Layout: LOENEW [O] PPSysB Job: 405385 Unit: PAG1

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7 May 2008 two, possibly three, commercial Petitioners, who 12694. MR MOULD: I believe your Lordships probably will not come, but we cannot— would welcome, at some convenient moment, a brief account of the settlement that we have now been able 12681. CHAIRMAN: And the remains of to reach with the Smithfield Market Tenants. Spitalfields. 12695. CHAIRMAN: I think we would be very 12682. MS LIEVEN: I think the remainder of interested. Spitalfields is the Coalition. Landor are definitely not coming, I am told. 12696. MRMOULD:Wouldyoulikemetodealwith that tomorrow morning, or now? I am in your hands. 12683. LORD JAMES OF BLACKHEATH: My Lord Chairman, can I make what I hope is a helpful 12697. CHAIRMAN: We can do it now. suggestion with regard to the point I raised with you earlier? I do not want to delay the proceedings today 12698. MR MOULD: I can be very brief. My Lord, but might I propose what may be the least possible the position, as you recall, that we reached on Friday problem while still dealing with what I think is a was that the market traders were looking for a potentially very important issue? separate undertaking in relation to compensation issues. We have agreed the terms of a separate 12684. CHAIRMAN: I think Lord James has come compensationundertaking,andessentiallyitprovides upon something that you ought to know about. for the following: firstly, where market tenants have a valid claim for compensation for injurious aVection 12685. LORD JAMES OF BLACKHEATH: I was under section 10 of the Compulsory Purchase Act going to oVer the possibility that if Mr Berryman plus 1965, the measure of that compensation will include a lawyer could stay behind I would be prepared to talk not only the diminution in value of their leases but, them through it now, so that they could read into the also, consequential loss of trading profit resulting record tomorrow anything they want to say about it from that injurious aVection. That is the general and have had the night to think about it. I do not want position which was agreed between us at the start of them coming cold to it tomorrow. the hearing on Friday.

12686. MS LIEVEN: My Lords, we are perfectly 12699. What we have also agreed now is that in the prepared to do that, if that is what the Committee unlikely event that dust from the Crossrail works wishes to do. contaminates market tenants’ and traders’ meat and leads to its condemnation by environmental health oYcers, then the tenants’ loss arising from that will be 12687. LORD JAMES OF BLACKHEATH: I am compensated. very amenable; if any Members of the Committee want to stay they are very welcome. 12700. CHAIRMAN: I see. 12688. CHAIRMAN: Do you want to say what it is 12701. MR MOULD: The final point: in the unlikely about? event that Crossrail removes loading bays on the market side of Lindsey Street (that is the western side 12689. LORD JAMES OF BLACKHEATH: The of Lindsey Street) and traders thereby sustain losses, report I have received of deposits of anthrax in the those losses will be compensated. I should just add, ground on the route of the tunnel. finally, that in deference to my Lady, Lady Fookes’ point, that undertaking, eVectively, if it arises at all, 12690. MS LIEVEN: I am sure if your Lordship will only arise if we do not build the revised scheme, raises that with Mr Berryman, Mr Mould and I will which is, in itself, as you know, a very unlikely state of stay, and I am sure we can deal with it. aVairs.The reasonI saythatis becausewe havecarried into the main legal undertaking the point that as 12691. LORD JAMES OF BLACKHEATH: On the regards the revised scheme those loading bays on the grounds that anthrax does not die in the ground. market side of Lindsey Street will be maintained throughoutthedurationof theCrossrailworks,which 12692. MS LIEVEN: I am aware of it, my Lord; it I think was a point which my Lady asked me to was an issue that came up at King’s Cross on the confirm. That is the substance of what we have now Channel Tunnel Rail Link. agreed.

12693. LORD JAMES OF BLACKHEATH: 12702. CHAIRMAN: That is going into an Thank you. undertaking? Processed: 14-08-2008 20:04:06 Page Layout: LOENEW [E] PPSysB Job: 405385 Unit: PAG1

1030 committee on the crossrail bill: evidence

7 May 2008

12703. MR MOULD: That is in an undertaking, and 12704. CHAIRMAN: Thank you very much, Mr the market tenantsare content that they donot need to Mould. We will adjourn until 10 o’clock tomorrow appear further before your Lordships. morning. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [SO] PPSysB Job: 405394 Unit: PAG1

committee on the crossrail bill: evidence 1031

DAY TWENTY-NINE THURSDAY 8 MAY 2008

Before: Colville of Culross, V (Chairman) James of Blackheath, L Brooke of Alverthorpe, L Jones of Cheltenham, L Fookes, B Snape, L

Ordered at 10.05am: that Counsel and Parties be called in.

12705. CHAIRMAN: Ms Lieven, we might as well (indicating). Farringdon Tube Station is over here to start. the west (indicating), this is the Lindsey Street ticket hall and this is Smithfield Market (indicating) and 12706. MS LIEVEN: Yes, my Lord. My Lords, what is shown with the little crosses is an historical before we start with the Petitioners for the day, there burial site, and you can see, as Lord James has are a few housekeeping matters to deal with and, just suggested, that it is much easier to see on the screens to mention where we think we are on the programme, in front of you. we believe that the only Petitioners who are going to attend today are the Residents’ Association of 12710. LORD JAMES OF BLACKHEATH: Can Mayfair, the Coalition, and Mr Walters. If there is we zoom in on it? anybody else, perhaps they will make themselves known to us, but we believe that everybody else is not 12711. MS LIEVEN: We can try, but your attending. Lordships will still find it easier in front of you. This is believed to contain victims of the plague and 12707. Now, so far as housekeeping matters are probably victims of anthrax at the same time. I would concerned, I am just going to touch on the matter just confirm to your Lordships that we are aware of raised by Lord James yesterday with myself and Mr this issue and the site is marked oV on our maps Berryman and then Mr Taylor is going to touch on accompanying the Environmental Statement and railway issues where I think there is something to say. this is one I have put before you. The Museum of I am conscious that there are two other outstanding London Archaeological Services are our specialist issues. One is noise from construction trains in consultants on the matter and, together with our response to a question asked yesterday by Lord design consultants for the area, will be responsible for Brooke. We are still doing some work on that, so we management of the issue. The design consultants will try and let the Committee know what have just produced the first draft of the written information we have got later in the course of the scheme of investigation, one of which will be day. The other is to provide some kind of summary produced for each of our sites, and thus draw of where information has been made available in attention to this matter. The section of the written respect of the Coalition. I believe that is being sorted scheme of investigation referring specifically to out as I speak, but I will touch on it in opening when health and safety is not yet drafted, but will take into I get to the Coalition and the Society and the Mayfair account best practice measures for dealing with these residents. matters, so we are very grateful to Lord James for referring us to it. As you can see, we have a good 12708. CHAIRMAN: I think it may save a great knowledge of the area and we have the matter in deal of time. hand.

12709. MS LIEVEN: My Lord, I hope, as I say, that 12712. LORD JAMES OF BLACKHEATH: Ms it is being sorted out. If I can just start by dealing with Lieven, at the risk of reducing your gratitude, can I the matter that Lord James raised with myself ask a small supplementary question please. Do you have a record of how many bodies went into the pit? yesterday. Yesterday evening Lord James drew1 our attention to the existence of a large burial site in the area of Farringdon Station, that is, between the 12713. MS LIEVEN: No. market building and Charterhouse Square. This is a map not in quite the same form as our usual maps, 12714. LORD JAMES OF BLACKHEATH: The but these are the Crossrail platforms at Farringdon ﬁgure I have got from Professor Hutchinson is 682, 1 all from anthrax, so it was not a bubonic plague pit. (SCN-20080508-002) Apparently, anthrax was brought into Smithﬁeld Crossrail Ref: P80, Route Window C6b: Farringdon Station Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1032 committee on the crossrail bill: evidence

8 May 2008 with some contaminated meat in 1520 and the result that the translation of such capability into the was the near wipe-out of the entire residential area of allocation of capacity is for the ORR to determine. Smithﬁeld Market itself at that time. Therefore, the What is intended by the undertaking is the issue here is that you cannot expect to have an easier preservation of the capability of the existing rail ride because part of it is bubonic and not harmful; it network to handle both current traYc and forecast is all anthrax and, when the Metropolitan Line was growth in rail traYc to 2015, in other words, the cut in 1890, it did emerge and it did kill people. preservation of train paths, both those that are existing and those that are forecast as necessary to 12715. MS LIEVEN: Well, my Lord, we are very accommodate growth in rail traYc to 2015. conscious of the issue and what I have conﬁrmed to Obviously the existing paths are already allocated the Committee today in absolutely clear terms is that under existing access options and access contracts. In we will use best practice in this area to ensure health relation to future growth, it is for particular train and safety. I do not want to raise huge concerns— operators to apply for an access option and to get those from the ORR, so that means that the 12716. LORD JAMES OF BLACKHEATH: But it allocation of the particular paths that we are seeking has not, I think, been covered in any previous reports to preserve is a matter for the ORR. The Promoter, or statements on Crossrail, so I hope that whatever therefore, cannot commit now to particular paths process of control is going to be conducted will be being allocated to particular rail users because to do incorporated in some statement following this so that so would cut across the ORR’s statutory powers and it can be openly and publicly monitored for functions and indeed it would, further, be likely to be everybody’s comfort in the future. unlawful as a result of relevant EU Directives. Indeed, the approach that the ORR took in its 12717. MS LIEVEN: My Lord, absolutely it will be. decision to approve the access option required the Can I just say that we, I believe, literally have an capacity for growth to be preserved, but it was aircraft hangar full of reports on Crossrail. There are explicit in not allocating particular capacity to vast quantities of reports which of course this particular rail users, and the Committee may recall Committee has not needed to look at at all or be that paragraph 82 of the ORR’s decision made that concerned with. This matter has been considered in absolutely clear. The Promoter can, therefore, only reports and will continue to be so in further more undertake to preserve the capability of the existing detailed investigations, so I am really very keen that network to handle current and forecast growth in rail we put both the Committee’s, but also potentially the freight to 2015, in other words, the number of paths, public’s, mind at rest about this because we do not but, if that capacity were allocated by the ORR to rail want scary headlines where we have considered the freight, that would allow for growth in freight to matter and we really are fully in control and in 2015. It is that matter that the last sentence of the knowledge of what is happening here, so I just want undertaking I gave yesterday was intended to to make that very clear. address, so it is just to make it absolutely clear that the Promoter is not allocating the particular capacity 12718. CHAIRMAN: Thank you, Ms Lieven. for future growth to a particular user.

12719. MS LIEVEN: I am now going to turn over 12723. CHAIRMAN: It is a reservation, is it not, to Mr Taylor to deal with an issue on railways. from the rest of the undertaking?

12720. MR TAYLOR: My Lord, I understand that there are some queries relating to the last sentence of 12724. MR TAYLOR: Yes, I think I would prefer to the undertaking that I read out yesterday morning. call it a ‘clariﬁcation’, but clearly it was not all that clear. All we are seeking to do is to make it perfectly explicit that the rest of the undertaking relates to the 12721. CHAIRMAN: Yes, that is right. I think most preservation of paths for future growth, but those of my colleagues and I are a little unhappy that it paths are not allocated by this undertaking to should be in, and I am not sure that it actually adds particular rail users, so I hope that clariﬁes the anything very much. matter. 12722. MR TAYLOR: Well, let me see if I can explain the reason we included that last sentence. 12725. CHAIRMAN: Is it possible to alter the This relates to the undertaking I gave yesterday wording in such a way as to show that it is not an relating to rail infrastructure provision, the last undertaking that you are capable of giving and, sentence of which relates to the capability of the therefore, it is not part of the undertaking that you existing rail network to handle the current and are capable of giving and, therefore, it has to be forecast growth in rail traYc to 2015, and it explains outside the terms of the rest of the thing? Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008

12726. MR TAYLOR: My Lord, I hope I have made 12739. LORD SNAPE: My Lord Chairman, I am that clear this morning. even less happy than my colleague about this. The original wording agreed by the members of the 12727. CHAIRMAN: Well, you have made it clear, Committee, and I have it in front of me, says that “the but I do not think the wording makes it very clear. Committee recognises the accepted importance of rail freight to the economy”, and I do not want to read it all out, but this is the original undertaking. I 12728. MR TAYLOR: In that case, I will go away do not think that the Promoter’s undertaking and see if I can come up with better words. recognises the concern of the Committee as far as rail freight is concerned. I am not much interested in the 12729. CHAIRMAN: I think it needs to be fact that the translation of such capability is for the reshaped, the last sentence, with some sort of ORR to determine, I know that, but it is not for the reservation about that. ORR, with respect, or Mr Taylor to write the recommendations of this Committee. The 12730. MR TAYLOR: I will go away and come up Committee was concerned about the future of rail with a form of words, my Lord. freight and expressed in quite an anodyne fashion, in my view, its concern in the original amendment in the 12731. LORD BROOKE OF ALVERTHORPE:I suggested words for consideration that my colleague, have a question and it relates to the paper that we Lord Young, prepared. I do not think that the have just had circulated on the Promoter’s response Promoter’s undertaking recognises the concern of the to the question of railway compensation which, I Committee at all. It points out everything that we presume, you have a copy of. knew, that these are matters for the ORR, but it is a matter for this Committee surely to express our 12732. MR TAYLOR: I am afraid, I do not actually concern about the capability so far as rail freight is have that to hand, but I know of its content. concerned. How that capability and that capacity is provided may well be a matter for the ORR, but it is not a matter for us. 12733. LORD BROOKE OF ALVERTHORPE: Well, while you are having a look then at the point that the Lord Chairman has raised, could you have a 12740. MR TAYLOR: My Lord, you can express look at 1.3 which reads: whatever view you want to express and I am not going to seek to curtail that. The undertaking that I 12734. “The intention is that Network Rail will provided yesterday was an undertaking provided in undertake the on-network works contained in the response to a request for an undertaking from the Crossrail Bill. Many of these works have a general Committee in relation to the infrastructure works. It benefit such as electrification and the six works on says what it says and it goes further than the which EWS has sought undertakings. These works Promoter has gone to date before the Committee of will be designed in detail by Network Rail and the either this House or indeed the other place. If the possessions and non-network change disruption Committee feels that the undertaking does not go far planning will also be Network Rail’s responsibility. enough, then certainly I am sure we will see that in Network Rail will also be paying for these works and your recommendations. recouping the cost through access charges.” 12741. LORD SNAPE: Indeed, and I speak purely 12735. I am confused. I thought that you had given us personally, but I think it is a matter for us to discuss the figures for the cost of these works and from that I ourselves. It is not that the undertaking does not go deduced that you were the ones who would be far enough, but I do not think it addresses the meeting the bill. concern that the Committee felt about the future of rail freight, but perhaps, my Lord Chairman, you 12736. MR TAYLOR: I will go away and take might think it more appropriate for us to deal with instructions. this when we come to prepare our final report in the next couple of weeks. 12737. LORD BROOKE OF ALVERTHORPE: It does link into the issue that the Lord Chairman has 12742. CHAIRMAN: I think so and we have got a raised because the argument has been that the six great deal to do today, so perhaps we had better not works should be undertaken. spend too much time on it.

12738. MR TAYLOR: I see the point and I will take 12743. LORD SNAPE: Well, I saw your face fall instructions and get back to you. when I mentioned it! I picked up the vibes, sir! Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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12744. CHAIRMAN: Mr Taylor, the other thing 12754. LORD BROOKE OF ALVERTHORPE: It that we have not dealt with, and I am not inviting you is the risk management. to deal with it today, is the infrastructure manager for the central tunnel. 12755. MS LIEVEN: My Lords, we could handle this in one of two ways. One way is that perhaps your 12745. MR TAYLOR: Indeed. Lordship could raise any questions with Mr Taylor outside the Committee and the other is that perhaps 12746. CHAIRMAN: We have had quite a lot of your Lordship could just put on the record what your paper on this and I am not going to discuss it now, questions are and then we will seek to deal with them but we are going to have to deal with it at some time. in the rest of the day.

12747. MR TAYLOR: I am very pleased you are 12756. LORD JAMES OF BLACKHEATH: The not. good news is that it is one question, not questions. 12757. MS LIEVEN: Perhaps the best thing would 12748. CHAIRMAN: Shall we proceed with today’s be if your Lordship told us what it was because I am programme? very conscious that today is the last day, so we have to deal with everything. 12749. LORD JAMES OF BLACKHEATH: Is there at some point going to be an opportunity just to 12758. LORD JAMES OF BLACKHEATH: The ask a single question concerning the safety question I would have for Mr Berryman is very arrangements as they provided the information they straightforward, but, bearing in mind that my did yesterday, which was one of the points referred to philosophy of risk management is that accidents are by Ms Lieven as bits of housekeeping? never due to a single factor, but are a combination of two half misfortunes that coincide at the same time, 12750. MS LIEVEN: I heard my name, my Lord, what combination of half chances was fed in that was but not really anything else. not clear when interrogating the safety model?

12751. LORD JAMES OF BLACKHEATH: In 12759. MR TAYLOR: Well, I have to say again that your housekeeping list this morning, you mentioned, that is a matter I will have to take instructions on, but I think, that we have been given the outstanding we will get back to you on that. information yesterday concerning the safety model and I was just asking the Chairman if we are going to 12760. CHAIRMAN: I think we had better come have an opportunity to ask questions arising out of back to this general area a little later on. that note that was given to us yesterday. 12761. MS LIEVEN: I think that may be right, my 12752. MS LIEVEN: Sorry, I thought this might be Lord. If we proceed with the Residents’ Association something to do with me and I was very confused. of Mayfair and the Coalition now, then I suspect those on our side who are involved in rail issues will 12753. LORD JAMES OF BLACKHEATH: It is a want to go out and decide how they want to handle Mr Berryman issue. things.

The following Petitions against the Bill were read:

The Petitions of the Residents’ Society of Mayfair and St James and the Crossrail Coalition of Residents and Petitioners.

MrAlexGoodman appeared on behalf of the Petitioners

MsMarinaAtwater andMrGuyCarpenter appeared as Agents.

12762. CHAIRMAN: Are you going to make any and he has been good enough, a few minutes ago, to opening statement on this? hand me a written summary of submissions, so I have some idea of what points are going to be taken. 12763. MS LIEVEN: I was going to, my Lord, yes, a relatively brief one. My learned friend Mr Goodman is here to represent, I believe, both the 12764. CHAIRMAN: We have had it this morning Residents’ Association of Mayfair and the Coalition, for the ﬁrst time. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

committee on the crossrail bill: evidence 1035

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners

12765. MS LIEVEN: Well, the same with me, my 12770. CHAIRMAN: It would be a long walk too. Lord. I had it about 45 minutes ago 12771. MS LIEVEN: It would be a long walk. All of 12766. CHAIRMAN: Consequently, we have not our modelling suggested that very few people would had the faintest chance of reading it. do the walk because it was not sensible and also plugging into Oxford Circus Station was a very diYcult thing to do without hopelessly overcrowding 12767. MS LIEVEN: Well, my Lords, most of it Oxford Circus Station. Then obviously the tunnels comes as no huge surprise and I was going to cover, run oV to the east towards Tottenham Court Road therefore, those issues in opening anyway. There are and out of Mayfair. I am going to call them the one or two issues that I am going to touch on, but Society and the Mayfair residents because the really it will be for Mr Goodman to explain to you Residents’ Association of Mayfair and St James is a what the concerns are. Anyway, perhaps we can just bit of a mouthful. I understand that the Society and start by putting up the map of Mayfair, and this may the Mayfair residents have three principal concerns seem rather obvious— they are going to raise with you today: the provision of information, alternatives and the deletion of clause 12768. CHAIRMAN: No, we have not had it before. 21, which I will come to separately.

12769. MS LIEVEN: No, we have not really 12772. So far as the provision of information is focused in this Committee on this section of the route concerned, we are just getting hold of this note which and I think it is important that your Lordships your Lordships asked for on Information Papers; it understand the areas concerned. Your Lordships, I has not arrived yet unfortunately, but I can deal with am sure, will be wholly familiar with the fact that information without it. I understand that Mr Mayfair is the area bounded by Park Lane to the Goodman is going to make a considerable point of west, Oxford Street to the north, Regent Street to the the obligations of the UK Government under what is east, and we do not need to worry about the south. called the Aarhus Convention to provide The Crossrail route runs roughly parallel with the environmental information to those aVected by Central Line and Oxford Street just to the south of schemes. It is our very clear case here that the Society Oxford Street, and we have marked on here the two and the Mayfair residents and local residents in this tunnels and you can see tunnels coming in out of area and indeed residents aVected by the other part of Hyde Park, which we were talking about yesterday, the Coalition, that is the Spitalfields’ residents, have under Park Lane and then under this part of Mayfair. received a very large amount of information from us There is one station which2 falls within Mayfair and in both detailed terms, where appropriate, but also in that is the station that we call Bond Street and, like very clear terms. There is obviously a diYcult thing to all our central section stations, Bond Street Station do here, which is to tell people what is going on on a has two ticket halls. The western ticket hall falls big and complicated project in a way that is not close to the existing Bond Street Tube Station, which misleading but also to tell them in a way that is I am sure we all know and love, on Oxford Street and accessible to them so they can understand what they it is on a site on Davies Street just to the south of the are being told. It is our case that we have achieved existing Bond Street Station here where I am marking both here. We have provided the Society and the on the map (indicating), and it has easy connections Mayfair residents with a vast amount of information into Bond Street Tube Station where one can on this project. For the Society and the Mayfair interchange on to the Central Line obviously and the residents the Petition response document responding Jubilee Line. There are then the normal long to their response in the House of Lords ran to 23 Crossrail platforms which run again under Mayfair pages. It did not just set out a response to every single and the eastern ticket hall is in Hanover Square which one of their concerns; it referred at all appropriate lies one block to the south of Oxford Street in points to the relevant Information Paper and the Mayfair, and the ticket hall lies where I am indicating relevant passages within the Information Paper. The in Hanover Square. It is fair to say at this point, first tier of information was in what we call the PRD because it has been a concern of the Residents’ and the second tier of information was what was Association of Mayfair, that the eastern ticket hall referred to in the IPs. In terms of environmental does not link into Oxford Circus Station. Such a link information, we have acted scrupulously in providing was found to have very little transport benefits and to information in that format. Of course, the be enormously diYcult to construct eVectively, and Committee are well aware that the IPs are all on the Mr Berryman can give more evidence on that later. Internet and updated whenever appropriate on the 2 Internet, with the relevant dates on the Internet. (LINEWD—ES40-011) Anybody who wants to know about the project Crossrail Ref: P80, Bond Street Station—Transport and Access Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1036 committee on the crossrail bill: evidence

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners including the Society and the Mayfair residents or had full access to historic information. They had a indeed the Coalition have got this cascade of whole series of requests relating to the previous information depending on precisely what they are scheme, the LU/British Rail scheme in 1992, so we interested in and the level of detail they want to have sent them a whole series of reports from 1992 on know. the old scheme.

12773. CHAIRMAN: It has been available for a 12778. CHAIRMAN: That must be fairly similar to long time, has it not? the passage that I was referring to yesterday, which is in Command Paper 7250, which provided a list of the 12774. MS LIEVEN: DiVerent information has things that the Spitalfields group had been provided been available at diVerent times. As far as the PRD with. I have not seen the list of the Mayfair ones but for the House of Lords is concerned, obviously that it is probably very similar. 3 has been available for the last few weeks. The Information Papers were all put on the Internet in, at 12779. MS LIEVEN: It is very similar, my Lord. that point, final form when we started in the House Can we put up Exhibit 35—4-048, please? I am not of Commons and they have been updated since then. going to read them through, but these are the There was also a lot of information when obviously documents sent under the Freedom of Information the scheme was at an earlier stage but we had Act to the Society and the Mayfair residents. It information centres and we did local consultation probably diVers from the one sent to Spitalfields in letters. There has been a constant source of this respect: Spitalfields were concerned with information. You have to balance these things alternative alignments for the eastern section of the because if we barrage people with information then route east of Liverpool Street and it would be fair to they just blank it out and it stops being of any use. As say that one of the most consistent points about the far as the Society and the Mayfair residents and the Residents’ Association of Mayfair’s concerns about Coalition is concerned, all the way through this they alternatives is that they would be alternatives, have had large amounts of information in various understandably, that are not within Mayfair. We are forms depending on what they wanted. After she looking at a diVerent set of alternatives. received the PRD, Mrs Atwater who was representing the Society and the Mayfair residents— 12780. CHAIRMAN: It is a CNIR point, is it not?

12775. MR GOODMAN: If it would assist, the 12781. MS LIEVEN: Yes, I am told! The other point I was intending to raise was not strictly on the point I just want to stress, whether or not Mr provision of information. It may save time just to Goodman is raising it, is that since we received the make that point now. Ms Lieven is welcome to come Petition in the House of Lords we have asked on a back when she has properly understood exactly the number of occasions that representatives of the point I was trying to make in the written submissions Society and the Mayfair residents meet us so that we in advance. can put to rest concerns about settlement, dust, lorry routes or any other genuine concerns they may have 12776. MS LIEVEN: I just want to explain to the as people aVected by the proposal and they have not Committee what information has been provided. been prepared to meet us. Every time we have said After the PRD Mrs Atwater wrote to us on behalf of this the response has been that they will only meet if the Society and the Mayfair residents and asked a we give them further information or send them series of further questions. We then wrote back—and further reports and so on. The end result is that we it is in the exhibits—not just providing other have not been able to meet them since their Petition information, but also with a schedule setting out has been submitted. In my submission, whatever Mr where each point was responded to in the PRD, to Goodman says about the Aarhus Convention, we make it as accessible for the Society and the Mayfair have provided every scrap of environmental residents and its members as possible. information that could reasonably be expected of us.

12777. The other aspect of information that I just 12782. I will turn now to the second of what I want to emphasise in opening is that we have received understand to be the principal concerns, which is a very large number of requests under the Freedom alternatives. The position on alternatives is that the of Information Act from the Society and the Mayfair Society and the Mayfair residents have very residents. On my calculation we have sent them 30 consistently throughout the history of this Bill and reports on Crossrail on various diVerent aspects indeed, as I understand it, back to the Private Bill in pursuant to all these FoI requests. They have not just 3 had the most recent information from us; they have of Information Act (WESTCC-35—04-048 to -051) Crossrail Ref: P80, List of documents sent under the Freedom Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

committee on the crossrail bill: evidence 1037

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners the 1990s sought to advance alternative routes of “Clause 21 provides that an Order under section which the consistent principle is that they do not fall 82(2) of the Environmental Protection Act 1990 may within Mayfair. You have heard Mr Elvin’s not be made by a magistrates’ court in connection submissions on the approach to alternatives and your with noise emitted from premises, or from a vehicle, Lordship has given a ruling on that. So far as the machinery and equipment in a street, where the alternatives that are relevant to the Society and the nominated undertaker can show that they are used Mayfair residents are concerned, the Environmental for Crossrail purposes and the Crossrail works Statement at Volume 1, Chapter 6, p112 to 127, goes concerned are being carried out in accordance with a through the main alternatives to the route and notice or consent issued by the local authority under assesses them in the Environmental Statement. As far sections 60, 61 or 65 of the Control of Pollution Act as main alternatives are concerned, that is done in the 1974. These provisions of the 1974 Act address the Environmental Statement entirely in accordance control of noise on construction sites (section 60), with European law. The two main alternatives which consent for work on construction sites (section 61) are most relevant here are a northern alternative that and consent to exceed noise limits (section 65).” To runs via King’s Cross and a southern alignment that put it in ordinary terms, what clause 21 is saying is runs under —- It is confusing because there is a that if we have gone to the local authority under southern alignment in Whitechapel, but the southern section 60 of the Control of Pollution Act and got the alignment we are talking about here runs under the local authority consent to any of these diVerent Thames. Both of those are assessed in the works then a member of the public cannot go to the Environmental Statement. magistrates’ court and complain of nuisance. We are not trying to get away with anything. We are just 12783. Unsurprisingly with something of the size and saying that if we have the local authority consent then scale of Crossrail, there are variants on these main for the purposes of certainty of the project, so we alternatives and one of the variants which has know what we can safely do, we can go ahead and do emerged on behalf of the Society and the Mayfair those works. residents increasingly strongly as this Bill has gone through Parliament is what is called the Wigmore Street alignment, which involves running north of 12785. The point I want to emphasise in opening is Oxford Street. Again, it has the “benefit” of not being that this clause is fully precedented by the Channel within Mayfair. On one variant of the Wigmore Tunnel Rail Link Act, which had the same clause, Street alignment there would be a station at and is also precedented in Transport and Works Act Cavendish Square, which eVectively would mirror Orders where the clauses that have been used in the station at Hanover Square but be to the north of recent Transport and Works Acts actually go further Oxford Street. Mr Berryman can give evidence on than this and provide that so long as the work is being this later. It was not considered to be a main done under the powers in the Order then no alternative. It has major transport disbenefits application can be made to the magistrates’ court, so overrunning south of Oxford Street. The only it actually goes further even than our clause or the residential benefit is that it shifts the line from CTRL Act did. I have just touched on that in opening Mayfair to the people who live north of Oxford Street because I wanted the Committee and Mr Goodman instead. In terms of overall environmental benefits, to understand our position clearly so that Mr we perceived there to be none which outweighed the balance on our alignment and the major transport Goodman can deal it in his submissions. disadvantages. Mr Berryman will tell you about that in more detail. Clearly that was not a main 12786. Let me explain the way we intend to deal with alternative. The main alternatives are considered in this Petition. I do have Mr Berryman here and I think the Environmental Statement. he would positively welcome an opportunity to go into the witness box for a short period and just 12784. The third issue that I want to touch on in explain to you why none of these alternatives makes opening so that the Committee and Mr Goodman any good sense. We are not just relying on EU law understand our position4 is that of clause 21 and for and what we have done in our ES. I think we feel it this I just need to put up the explanatory note to the would be useful for the Committee to understand Bill which was set out when the Bill was introduced why in substance— in the House of Lords. It says at the top, “These notes refer to the Crossrail Bill as brought from the House of Commons on 14th December 2007”. I think 12787. CHAIRMAN: We are not going to spend this is the easiest way to explain what the issue is. very long on this because we have no powers 4 whatsoever to recommend those routes.

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12788. MS LIEVEN: Quite, but I just wanted to settlement damage, vibrations, dust and pollution make that clear. I understand that we have now will be disastrous. What I am seeking today are some passed to the Committee this note on undertakings mechanisms that will apply some safeguarding and and assurances which are relevant to the Spitalﬁelds reassurance to my clients during the construction area and I hope that this is at least a start to what the period in particular. You will have seen in the Committee wanted us to provide. We will pass it to Petitions from both groups that a whole range of Mr Goodman and his clients in the hope that it pulls topics are raised relating to dust and noise and all the together the information that they had. things that they are concerned about.

12789. CHAIRMAN: It looks like it. There will be parts of the Environmental Statement also which no 12799. CHAIRMAN: It was precisely for that doubt apply. reason that I asked the Promoters to produce this list of undertakings which we have and I hope you have 12790. MS LIEVEN: Yes. It is right to remind the too. Committee that the Environmental Statement is also available on the Internet, so it is easy for people to get 12800. MR GOODMAN: I have now had it, yes. I information. do not have any hope or expectation of dealing with every single one of those in anything like the detail 12791. CHAIRMAN: And has been for a long time. necessary, so I have tried to draw out simply three recommendations that I would like this Committee 12792. MS LIEVEN: And has been ever since it was to consider making. The ﬁrst recommendation lodged, which seems like a very long time ago but I relates to what is now clause 21 and you have heard think was probably about three years ago. That is all about that and that is the clause that removes the I intend to say at this stage. right of my clients to sue the undertaker should there be a nuisance created by noise. Secondly, my learned 12793. CHAIRMAN: Mr Goodman, what do you friend has slightly mis-characterised my second want to do? point. I am not seeking to raise a point about the provision of information thus far in the proceedings, 12794. MR GOODMAN: My Lord, may I begin by that is not what I am making a point or complaint making an apology that I am not wearing a tie this about— morning.

12795. CHAIRMAN: I saw that! 12801. CHAIRMAN: I am very glad to hear it because we had two hours of this on Wednesday. 12796. MR GOODMAN: My clients told me that on all accounts I must not make the mistake that their previous junior counsel made in the House of 12802. MR GOODMAN: I am glad I am not Commons of coming unrobed! I understand that he repeating what has already been heard by you. What had a very diYcult time unrobed and I hope I do not I hope to put forward is a proposal whereby receive the same treatment. throughout the construction period there will be made available some form of independent agency 12797. I am instructed by my clients directly today which can provide advice and assistance, whether under a public access system and so I do not have technical or legal, to those whose homes are aVected, direct instructions from a solicitor which perhaps particularly if something goes wrong; in other words, leads to these kinds of very basic errors, but I hope a third agency outside the local authorities and you will bear with me. outside Crossrail, indeed outside the Secretary of State, who can be trusted by the local residents as 12798. My client groups are two residents’ someone they can turn to. I will elaborate on that associations and their broad membership numbers in proposal in due course. The third point is that I am the thousands: it is the Mayfair residents and the not promoting any alternative routes and I can assure Crossrail Coalition of Residents and Petitioners. you that I understand the scope of the powers of this What I want to impress upon this Committee today Committee and the Standing Orders and it certainly is the fear that many of my clients feel about this does not have any powers, I think that has been made project, not only if everything goes to plan, but the clear. I have seen previous rulings to order that the fears of things going wrong. These are real and, I principle of this Bill be reconsidered and that is not would suggest to the Committee, quite fair fears to be the reason the alternatives issue, if I may put it that held, that the disruption to their lives by noise, way, is being raised again. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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12803. What I am seeking is a recommendation that environment that it is not enough to simply rely upon the alternatives that have not been considered within authorities to paternalistically safeguard the interests the Environmental Statement thus far are subjected of the people aVected and concerned. What has been to analysis. It does not go to the principle of the Bill seen, particularly over the last five years, in national and it does not forestall proceedings to any and international legislation is that the interests of significant degree in the way that promoting an third parties, of local residents, are to be taken into alternative route would do, but what it then enables account and that public participation is heavily is consideration to be given to the extent and nature emphasized. of harm that is caused by the route that has been chosen. It enables a comparative analysis to be 12809. I set out the background to this in my undertaken and that is a valuable tool and indeed summary submissions, and in paragraph 5, this goes that is the very reason why the Environmental back to a report from the Royal Commission on Statement is required to contain consideration of Environmental Pollution. This quotation perhaps alternatives, so that that analytical process can be summarises the point that “in democracy it is an undertaken. Those are the three suggestions or unhealthy sign when authority claims omniscience recommendations that I will be asking you to make and dismisses grass roots concern as irrational.” It is in outline. that principle which has fed into a number of international treaties. In 1992 the Declaration on 12804. CHAIRMAN: We will listen to those with Environmental Development agreed at the Earth interest. Summit in Rio, which you will no doubt recall, set out Principle 10, stating that “Environmental issues 12805. MR GOODMAN: The context I have set out are best handled with the participation of all in my written submissions, and I appreciate you have concerned citizens, at the relevant level” and “States not had the opportunity of reading them. I had shall facilitate and encourage public awareness and prepared them in the hope that my learned friend participation by making information widely would have at least some opportunity of knowing available. EVective access to judicial and which points out of the Petition were to be administrative proceedings, including redress and emphasized this morning, and she has had an remedy, shall be provided.” opportunity, and certainly will have another one in due course. 12810. That principle set out there feeds into the Aarhus Convention, which my learned friend has 12806. To set the context in which these already referred to. This is an international recommendations are being sought, this is a Bill convention signed in 2001. That Convention sets out which gives sweeping powers to the undertaker, but it what are called its three pillars of access to goes further than just giving them powers; it provides information, public participation in decision making exemptions from many of the conventional controls and access to justice. It is that Convention which sets upon the nature of construction. Clause 21, which we the context for the environmental impact assessment have already canvassed, is one example of that. In directive that you have already heard about a number place of those controls, for example, in place of the of times, the strategic environmental assessment ability of a person to take an action in the courts for directive and numerous implementing regulations, statutory nuisance, there are protections put in place and indeed the public participation directive, which whereby local authorities are responsible for are all coming from European level. safeguarding the interests of residents. 12811. So the trend and the focus is very much on the 12807. What I wish to impress upon you is the anxiety notion that ordinary people must be able to that that raises in many of the residents, because there participate in these kinds of environmental projects, is considerable variability between the extent to and this project perhaps more than any other, such a which local authorities can be relied on to act swiftly major scheme, which will have such wide-ranging when problems occur. If all possibility of eVects on the lives of the people it aVects. This has independent remedial action or independent redress been recognised, and I have quoted from Mr Justice being taken is removed from ordinary people, from Sullivan in the recent Greenpeace case, in which the residents, that poses a considerable problem to them Government’s consultation on nuclear power was and raises considerable anxieties. quashed, and the reason that was quashed was for a failure to properly and fully consult the public. The 12808. I make these submissions in the context of a conclusion he draws there is that, “Whatever the general recognition now within the field of position may be in other policy areas, in the environmental law and protection of the development of policy in the environmental field Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1040 committee on the crossrail bill: evidence

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners consultation is no longer a privilege to be granted or 12816. These agreements are commonplace in withheld at will by the executive. The United construction projects and, as the legislation is set out Kingdom Government is a signatory to the currently, it is made express in section 61(9) that the Convention on Access to Information, Public fact of having made such an agreement provides no Participation in Decision-making and Access to defence to an action in nuisance. So for any small- Justice in Environmental Matters” and he quotes the scale, ordinary project, a construction team cannot Preamble to the Aarhus Convention. say, “Well, we agreed with the local authority we could do it this way.” There is always the implied 12812. So it is no longer, as Mr Justice Sullivan is limitation that it must not exceed the bounds and saying, the situation that consultation is merely a move into an area which would constitute a nuisance. privilege; it is an essential part, not only at this That would be any ordinary scheme. What the stage—and I fully accept that much information has Promoter is seeking is something that goes beyond been made available—but as the process goes along, the majority of construction projects and takes out of because this is a project which leaves many of the the hands of the private individual the possibility of details and many of the parts of its process which will seeking any redress and makes them dependent upon actually aVect people—the way in which the local authority enforcing a breach of any of the construction is managed, the kind of agreements that conditions of that construction project. are come to with local authorities about the way it is managed—those detailed decisions it leaves to a later 12817. This has been raised in the Petition, and in the stage. It is crucial that at that later stage the people response received—it has been referred to this aVected also have an opportunity of taking part in morning—from the Promoter the only explanation those decisions again. that was given for this is quoted at my paragraph 14, that it will “enable the nominated undertaker to carry 12813. That sets the context in which the three out his works, as approved by the local authority, proposals I am now to set out to you arise. The ﬁrst with greater certainty.” I do not dispute that being one relates to Clause 20, now 21. I have quoted it in immune from being sued for creating a nuisance will full. It is paragraph 11 of my summary submissions. create greater certainty. Of course it will. Anyone who is immune from being sued can act with greater 12814. CHAIRMAN: You do not need to read that certainty but that does not answer the concerns that out again. the residents have. It does not explain why it should be necessary to legitimise the possibility of creating 12815. MR GOODMAN: I shall not read it out but levels of noise that would be classiﬁed as nuisance. the eVect 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 12818. That is one very good example—and there are it could be categorised as a nuisance, in other words, numerous others—of how procedurally the that it is actually injurious to personal comfort, important thing is that the power is taken out of the where that occurs, the usual situation is that one can hands of local residents, who are in a position to do take a private action in the magistrates’ court, obtain nothing, even though a nuisance is being created. an injunction and obtain damages. That usual They have to rely on the local authority. procedure, which would safeguard the rights of ordinary people and oVer a procedure by which they 12819. CHAIRMAN: Mr Goodman, one of the personally can take matters into their own hands, is things that has happened is that various individual to be suspended in this case. As my learned friend has local authorities have taken on the role of organising explained, what happens in its place is that the a generic procedure and probably criteria for this sort undertaker will agree with the local authority a of thing. My recollection is that Havering has been construction plan, will apply under section 60 of the dealing with construction noise but it has dealt with Control of Pollution Act, and then under section 61 it on behalf of all the local authorities through whom a plan is set out with various conditions as to how the this route will go. Therefore, there should be construction should go ahead. Provided those common ground and a common approach as conditions are complied with, even if a nuisance is between all the local authorities. being created by the way the project is being managed, that will oVer a complete defence to any claim against them. So it legitimises the possibility of 12820. MR GOODMAN: Yes, I am aware that that levels of noise being created which are injurious to has been done under the EMRs, as I think they are people’s comfort, merely by virtue of the fact that an called, that have been agreed between the local agreement has been made with the local authority. authorities. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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12821. CHAIRMAN: We have never seen the terms something like, for example, one might think of as a of this but it has been done. Citizens’ Advice Bureau that is specifically related to Crossrail and has the ability and the resources to find 12822. MR GOODMAN: I have not seen them but and to instruct technical and legal experts who can I did read in one of the transcripts that Mr Straker actually investigate the issue. appeared before you and confirmed that those had been agreed. 12828. This is where I come to the diYculties that my clients have had, that they do not have the resources 12823. CHAIRMAN: They have been agreed but we to meet the Promoter’s case in terms of expert have not seen the terms of them. evidence and legal assistance. They have received assistance from me because it is an honour for me to 12824. MR GOODMAN: No, and neither have I have this opportunity to appear before this but my point goes to the public participation point, Committee, but they cannot rely upon generous that whatever the terms, however stringent they may oVers from noise consultants and lawyers for the next be, there are local authorities who simply will not five years in the hope that their interests can be fairly eYciently enforce those terms and that the people on and properly represented. Many of these people— the ground are then left powerless to do anything this may not immediately strike you when thinking of about the disruption to their lives. That is one Mayfair—are living in social housing; they are people example only, because the whole structure of this Bill who do not have finances or resources to instruct is created to take away the possibility of public experts who could pursue their claims and their participation. interests on their behalf. If a wealthy person’s life were disrupted by noise and so on, that person, even 12825. CHAIRMAN: From your point of view, you if they did not have the powers to go to court, would are referring to Westminster City Council, City of be able to make a fuss suYciently with the local London and Tower Hamlets. authority, could get their own noise expert, could really engage the local authority articulately and 12826. MR GOODMAN: Indeed, and without suYciently that something would be done about it. wanting to pick out culprits, there are better and worse councils amongst those three, ones that can be 12829. However, there are people who do not have relied on and ones that are simply not trusted by my the skills, the money or the resources to take that on, clients. That is the real fear they have. In any so my proposal is that some provision be made to ordinary situation they would have the fallback that ensure that independent advice is on oVer for those they would not need to rely on the local authority, people and that they can be represented in that way, but in this situation they are being placed at their whether it is a matter of chivvying the local authority mercy. or bringing some legal action or undertaking technical reports, surveys, as it may be, whatever is 12827. That brings me to my second constructive required in the circumstances. That, in my suggestion about how these fears in that context, that submission, would be consistent with the emphasis feeling of powerlessness and, indeed, the reality of that is being placed at national and international level powerlessness, can be addressed. What I propose is on the need for some public participation and the that an undertaking be recommended—I cannot need for some sort of equality of arms—that is a obviously require one from the developer, in a similar phrase that is often used in law. Clearly, there is no way to a planning application where one would equality of arms between my clients and the vast expect an undertaking of a sum of money towards resources available to the Promoters. My clients are various facilities or as it may be—that somehow, and unable to even instruct one expert. That kind of I am not sure exactly how the mechanism would resource would enable them to challenge the work, provision be made for an agency which can construction plans that may be implemented if they give advice to people who are put in diYcult fall short of the kind of standards they would be positions. So when cracks start to form in their house entitled to expect. It would put them in a position to or something goes wrong, in the event that it does, have the expertise at hand. that noise becomes unbearable, living conditions become unbearable—dust, lorries and so on—in the 12830. From a personal point of view, the diYculty I event that those unfortunate by-products of the have had is that they have wanted me to present a construction process occur, there is someone they can case on a range of highly technical issues, on noise turn to, who is both independent and is seen as and dust and so on, but I do not have the expertise independent of either the Promoter, the undertaker behind me by which I can say anything that backs this or the local authority. What I am suggesting is up. It is out of that diYculty that I found myself in Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1042 committee on the crossrail bill: evidence

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners that this suggestion was made to them, so the 12837. CHAIRMAN: I can, because there is a Bill diYculties they have had thus far in this Bill thus far which has been through the House of Commons and are at least ameliorated through the process of has had the necessary monetary resolution approved, construction of the Crossrail project over the next and no such thing as you are now suggesting is in it. five or six years. 12838. MR GOODMAN: Yes. 12831. I have not formulated how this agency would look. I do not think that is probably for me to do. 12839. CHAIRMAN: I am not therefore certain—I What the recommendation needs to say is that some have never been in the House of Commons, as a form of funding be made and that some organisation number of my colleagues have—that this House can be appointed to help set up such assistance. It is suggest the inclusion in the proceedings which important that it is independent of anything that accompany this Bill of an indeterminate financial local authorities or the Secretary of State may imposition which would have to be paid for out of already provide. public funds. I seriously doubt whether we could do it, but I will consult my colleagues about it in due 12832. When these issues have been raised in diVerent course. forms, there is frequent reference in the Petition to a need for independent monitoring. The response that has come back from Crossrail has been that there are 12840. MR GOODMAN: Yes. I cannot point you two liaison committees, one in Paddington and directly to the scope of your powers in the Standing Spitalfields, I believe, and there is to be a helpline that Orders as I stand here, but the alternative position is can be phoned, but that is a very diVerent kind of that it does not necessarily need to come from public service from the one that I am suggesting. It is not funds, in the way that a developer on a planning about providing information or being able to phone inquiry can make contributions towards road a helpline; it is about having someone who actually building or education provision under a section 106 advocates on your behalf. What I am suggesting is agreement. There is no reason that cannot be over and above anything that has been put forward requested from the developer. thus far. 12841. CHAIRMAN: Go ahead anyway. I think 12833. CHAIRMAN: I am only thinking aloud, Mr there is a problem here. Goodman, but this Bill has, of course, been through the House of Commons and they had the necessary 12842. MR GOODMAN: It may be something I can finances arranged. There was a resolution on the assist on procedurally after we have concluded this. basis of which it went forward. Surely, this would be a completely new element in the Bill which would have to be funded from the public purse? I am just 12843. CHAIRMAN: I do not want to interrupt wondering whether this House can try to get you. Please go ahead. something of that sort inserted into the Bill. 12844. MR GOODMAN: That is my second 12834. MR GOODMAN: My Lord, procedurally, suggestion. The third matter relates to the Cavendish that would be one way to go forward. The other, of Square option, as I will call it. As I emphasized at the course, is to recommend that an undertaking be outset, I am fully aware of the advice and rulings given. If the legal force to make such a given by the Committee on putting forward recommendation were needed, these directives that I alternatives and I am not asking the Committee in am alerting your Lordships to, stipulating the need this respect to traverse the principle of the Bill. for public participation, provide, in my submission, the legal back-up for this Bill to proceed consistent 12845. What I am asking—and, in my submission, with those international and national obligations; this is perfectly within the powers of this some sort of provision along this line needs to be Committee—is that a further supplementary made in the form of an undertaking. environmental statement be asked for. It is quite a usual practice within large planning developments 12835. CHAIRMAN: I understand that, but it still that if environmental issues arise, even after the end has to be financed. of a planning inquiry, the Secretary of State will require under Regulation 19 of the Environmental 12836. MR GOODMAN: Yes, and I see no reason Impact Assessment Regulations a further why it cannot be financed by the Promoter in the supplement to the environmental statement to be same way as a developer— produced covering such issue as may have arisen. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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12846. The reason I submit that this is an important 12849. CHAIRMAN: Let me see if I can understand issue that should be considered is that the concern of you. Your analogy with the development proposals the residents of Mayfair is not simply that the harm result in an alternative Environmental Statement will be less to those who live in Mayfair, as being produced before the Secretary of State takes characterised by my learned friend, but that it would the decision on the appeal, is that right? be less per se. If there were a route which was looked at which created less harm in terms of disruption, 12850. MR GOODMAN: Yes, my Lord. After the lorry movements and noise, then that provides an inquiry has closed it is open to the Secretary of State, important analytical basis upon which to assess the even though he has heard all the evidence, but before harm created by this development. he makes up his mind to decide that he wants a further Environmental Statement, a supplementary statement to be produced and to invite further 12847. If I give an example, where one has a Green consultation responses in relation to that. 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 12851. CHAIRMAN: He has not yet made a there are very special circumstances which legitimise decision. covering up the openness of the Green Belt. If there is an alternative site in a brownfield location on the 12852. MR GOODMAN: He has not yet made the edge of a town which could equally meet the housing final decision, he may have made a ‘minded to’ need, and the developer comes along and says, “The decision either way. very special circumstances are the dire need for housing in the South East” one is entitled to say, 12853. CHAIRMAN: Exactly. I think the diVerence “Why can’t we build the 300 houses we need on this here is that Parliament has made a decision and it is preferable location?” So one can actually look at the a little diYcult to see how your suggestion fits in to extent to which the proposal is justified. It does not the way in which Parliament now proceeds. mean one has to then say, “Well, they must be built on the brownfield location” but if there is that 12854. MR GOODMAN: This brings into play the preferable possibility one can look at the extent to whole EIA issue and the legality of this Bill which mitigation of any harm should be conditioned proceeding without this supplementary statement on that planning permission. being put forward. It is an issue I did not necessarily want to canvas because previous rulings have been 12848. That is the analogy I draw here, that by made on it, but I would like to draw your attention to looking at an alternative it does not mean the an opinion provided by Richard Harwood, Counsel, environmental statement comes back and says “This at 39 Essex Street which addresses this issue. My was less harmful in X, Y and Z way”. It may say learned friend has seen a copy of it. I will submit it to “There are other reasons that we still consider you, but I think it is preferable if it is not all read out outweigh those harms” but if those harms could have now. The basic conclusion to draw from that is that been avoided, there is a legitimacy in saying that the Parliament’s final decision, in my submission, is yet kinds of measures that are taken to mitigate those to be made. It is open to amendments and, indeed, harms on the route that was chosen should be more that is why we are here today. If it should take the stringent than perhaps is being oVered, and one of the view that adequate environmental information has points that has been raised is the kind of not been put before it, in those circumstances it should not proceed to take the final decision because undertakings that are put into the Construction Code to do so would be in conflict with the EIA directive. of Practice and whether they can be firmed up. So That is the legal reason why the flexibility has to be your Lordships heard this morning about the burial there, notwithstanding the usual presumptions about ground and that best practice methods would be used procedure, to allow for that further possibility. 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 12855. CHAIRMAN: Does the opinion you are routes in terms of mitigation of harm. In my referring to relate to primary legislation? submission, it is perfectly reasonable to expect greater levels of intensity as regards mitigation to be 12856. MR GOODMAN: The opinion relates imposed and expected in relation to the way in which specifically to this project and to the specific they propose it to be constructed on the route that alternative to which I am hoping now to call has been chosen. evidence. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners

12857. CHAIRMAN: But at what stage of this (Mr Schabas) I have to say, I was not aware that they project? had looked at a route through Cavendish Square. We asked for information on it and were not given any, 12858. MR GOODMAN: It was drafted in but I found out about this in the last few months, that December of last year, so it is fairly up to date. If we they did do work back in 2002 on it but the work had have copies of it, I will make them available to you not been released. This is Oxford Street, obviously and you can take some time with it. What I propose (indicating) a pretty busy road and you want to build to do is call Michael Schabas, the witness, and ask a line from Paddington, which is up to the top left, him a few brief questions about the Cavendish over to Tottenham Court Road, which is over here to Square alternative which was considered and the the right, and Crossrail goes south of Oxford Street, view he takes of the harm that would be created by the safeguarded route which dates from the 1988 that. If you are amenable to that, I will call him now. Central London Rail Study, mostly, as I understand, because the post oYce tunnel was along the north 12859. CHAIRMAN: Yes, please. side of Oxford Street and they wanted to miss it and they wanted to get under the royal park so they could MrMichaelSchabas, sworn have a worksite, I guess, strangely. When they Examined byMrAlexGoodman revived the scheme in 2000 I said, “Why not run under the river?” they said, “No, no, we’re going to 12860. MR GOODMAN: Good morning. Can we stick with the one we’ve got because it’s been put that map up that we had earlier. We will deal with safeguarded for 12 years and it’s all been figured the map shortly, but if you could just outline what out”. Obviously it had not all been figured out your previous involvement with Crossrail has been? because lots of things keep coming up. When it was (Mr Schabas) I reviewed the Crossrail project for the suggested to me by the Mayfair residents, the point Department for Transport in 1993/1994 for a study about at Wigmore Street and Cavendish Square was, that was referred to in the Committee that ultimately “Well, Cavendish Square is a much better place for a rejected the Bill. One of the things we did at the time worksite than Hanover Square”. I think anybody was to look at alternatives, including the northern who can walk around both squares can see that route. We were invited by the Strategic Rail Hanover Square is surrounded by some quite historic Authority in 1999 to make suggestions for relieving buildings and it has got beautiful trees in it and congestion on the main rail London terminals and I Cavendish Square was blitzed, first in the war and came up with the idea that I guess they call the then subsequently by the planners. It has got an southern route along the river, suggesting that the underground car park that fills the square. It does not southern route would not aVect any properties and have any big trees. It is a bigger square. It is closer to would serve a slightly diVerent but probably almost Euston Road and I think if I had to dig up one square as good or equally good transport function. That was or the other for my worksite, I know which one on the referred to; I think they call it one of the main face of it seems better. The route that you would use alternatives. Mr Berryman’s initial response was that along Cavendish Square along Wigmore Street has they did not want to look at that; they did not have much less housing. It does not have any of the social time. That was in 2000. Then in 2001 I was retained housing that you have in Mayfair along the same by them for eight or nine months while they produced route and I am told there are a couple of thousand plans. Then they got a new Chief Executive in and residents along here in social housing (indicating). It summarily decided not to look at alternatives any is almost all commercial along there, although Mr more. They told me the reason they rejected the river Blair has his place over here, so he might be aVected. route was because of environmental impacts of In terms of transport, and I am a transport planner coVerdams in the river and worksites in the royal originally, I find it bizarre to suggest that a change parks. When I asked for more information I was told with the Victoria Line would not be useful. I know in writing that they were not going to give me any from the plans of the original 1988 scheme, because I more because they did not want to engage in a long asked them this when I did the review in 1993 for the conversation. I am sorry that I am deviating, but Department, I said, “Why don’t you link into when I hear what Ms Lieven says it sort of grinds a bit Victoria?” and they said, “We’ve tried but it’s so because I thought the Aarhus Convention had been congested at the south end of the Victoria Line signed by 2002. platforms because that’s where they connect into the Central Line at Oxford Circus”, but you can go to 12861. Mr Schabas, can I ask you first of all about the Oxford Circus and you can see it. The south end of Cavendish Square route. Do you have that red dot, the platforms is where the Victoria Line and the can we make use of that. Can you explain what the Bakerloo Line and the Central Line meet. At the Cavendish Square route is? north end they do not meet and it is less congested. If Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners you had a station here, you could actually straddle because it would delay the project a year and it would and connect into both Oxford Circus and Bond probably mean £100 million. Assuming Crossrail is Street Station because it is a very long station and I worth building, then it is worth building now and not am intrigued to see this. I asked this question too and waiting five years, then it is a cost in delay, so you are now I am told that Mr Berryman can speak to this not going to change the route. In terms of the and I would love to see the model because I think compensation, the people in Mayfair are being probably what they have done is— wronged, the residents along here, not because there is a pressing public issue, because if the job had been 12862. Can I slow you down a bit because it is diYcult done properly, in fact it would not even have gone I am sure for the stenographer as well. Could you there. They are being screwed because of a mistake. clarify, is this a route which is being looked at by the You cannot fix the mistake now by changing the Promoter? route. Personally, I think it is never too late, but (Mr Schabas) I was handed a document a few months Parliament said it is too late because Parliament had ago that says 2002 on it, so, yes, I believe they did a two hour debate in Second Reading and decided the look at it in 2002. biggest project in London, which I find a little bizarre too but I am told how it works there. If that is the 12863. We received a letter two days ago referring to case, it still seems to me that the Mayfair residents are something called the Parsons BrinckerhoV report. being damaged completely unfairly. (Mr Schabas) Parsons BrinckerhoV were the engineers who I know were retained because they 12867. It is conceivable we could find a third one, worked with me on the river route and it was could we not, that would be equal? presumably the same people who worked on (Mr Schabas) I did the alternative analysis on the Wigmore Street but it was all kept secret at the time. Channel Tunnel Rail Link and you can never think They certainly kept it secret from me. up all the alternatives, we know that. What you are supposed to do is have a reasonable crack at 12864. In terms of harm, what diVerences would you identifying them and then identify the ones that look identify between the Hanover Square route and the like they are goers and then evaluate them proposed route? systematically—I think they have said this— (Mr Schabas) All I can say is what I would see from comparatively and report for environmental walking around it. Obviously there is lots more work assessment, they did not. to do, but it is a pretty good straight route, Wigmore Street, to tunnel under, or at least one of the tunnels. 12868. Lord James is very good at asking the unasked Cavendish Square is a much better place to dig up, question! much less of an environmental impact, I would think, (Mr Schabas) I never head about Anthrax. When I from excavating the square. Your worksite is already said in 1999 “Go under the river”, all I said was, “I there. The car park is a disaster, if you have been in don’t know what’s under the river, but there’s bound it, so to demolish the car park you have your shaft to be a lot less trouble going on under the river than already there, so you would have much less going under all these other properties”. The anthrax excavation, a much better place to load your trucks, at Charterhouse Square is new to me and I guess it is to take the concrete in and out. You know I am a new to them too. The guys in 1988 who picked this director of GB Railways and we haul building route, I am sure they never knew about it. They did it materials into London and most of the concrete and in eight weeks and they would admit it to you that aggregates to London come in from north of King’s they did. They picked this route in eight weeks. It was Cross or behind Paddington, so all the trucks are a quick £50,000 study in 1988. Paul Channon wanted going to be going that way. the study to know how we could solve London’s transport problems and he wanted it by the end of the 12865. LORD BROOKE OF ALVERTHORPE: summer, so that is what they did. They did not look Mr Schabas, are you suggesting that it should be re- at any of this stuV, but they did look at Wigmore routed? Street and Cavendish Square because they gave us a (Mr Schabas) I am told that that is not allowed, so I document finally. They finally gave it to us this year. am not suggesting that. They did it six years ago. Maybe they should have burned the documents—Nixon would have done 12866. What are you telling us then? that! He did not, he would not have burned it either, (Mr Schabas) If they did their job, and I think they that is the trouble! They should have burned the should have looked at this alternative and not document but they did do it, they did look at it. dismissed it, they would have arrived at a diVerent Therefore, they should have looked at it properly conclusion. I think the suggestion is it is now too late because what the paper says is why they rejected it. It Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1046 committee on the crossrail bill: evidence

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners says they rejected it because it would only be £10 12873. MR GOODMAN: That is the legal million cheaper. That is funny. So it is cheaper, only submission. The factual submission I was seeking to £10 million cheaper and there would be longer walks establish was simply that there is some reasonable to Bond Street Station. What it does not say is, “Well, evidential basis upon which to make that submission. yeah, but there would be shorter walks possibly to I am not saying there should be an assessment of any Oxford Circus” and it says nothing about conceivable alternative route that we pluck out of the environmental impacts, nothing about construction air, and so that is why I was calling the evidence upon access, constructability. You know the trees at that subject, but that is the only evidence I wanted Hanover Square, those are beautiful trees and they to call. are going to get killed because somebody back in 2002 said, “I can’t be bothered looking at 12874. CHAIRMAN: Let us stick to the fairly alternatives”. narrow point.

12869. I think there are some disputes about that. 12875. MR GOODMAN: The evidence that I (Mr Schabas) Before they go, because in a way I wanted to call has been given and, unless you have would like to have heard Mr Berryman ﬁrst, I know any further questions, I have nothing more to say at that if you plug in an Oxford Circus interchange in a this stage. transport model and you put in a long travelator connection to Crossrail, very few people will use it. 12876. CHAIRMAN: It is coVee time. We will come The Victoria Line is one of those lines: with every back at a quarter to 12. other station on it, you can get a train either to Liverpool Street or Moorgate. It is the busiest line in After a short break. London, but if you are at Seven Sisters and you want to go to Heathrow and you plug in their peak hour 12877. CHAIRMAN: Ms Lieven, have you got any transport model, it will tell you to take the train to questions? Liverpool Street and then change there, but most people do not go to Heathrow in the peak hour, they Cross-examined byMsLieven go in oV peak, but they do not model the oV peak, at least I do not believe they did; they take the peak model and then they scale it. It misrepresents how 12878. MS LIEVEN: I have got a very few people would travel. questions, my Lord. Good morning, Mr Schabas. First of all, it is right, is it not, that you gave evidence in the House of Commons on alternatives? 12870. But this is not being built for the majority of (Mr Schabas) Yes. people travelling out to Heathrow. It is being built to relieve congestion on the underground in Central 12879. And the House of Commons, in their report, London primarily. did not make any recommendations in respect of that (Mr Schabas) It is being built for all kinds of reasons. part of your evidence, did they? (Mr Schabas) I was not even aware of the Cavendish 12871. But that is a big one. Square alternative at the time because it had not been (Mr Schabas) It is one of the big ones, but going to disclosed. Heathrow is a pretty important one too. What I am saying is if you are trying to design the best station 12880. Just answer my question: it is right, is it not? here, you would build a link into Oxford Circus if you (Mr Schabas) Yes, they could not. could, that is a no-brainer. Anybody looking at the tube map says that. It is not diYcult. They are doing 12881. Now you have said in your evidence-in-chief, it at Whitechapel which does nothing to relieve and indeed you said in the House of Commons when congestion or anything else as far as I can tell. There you gave evidence, that you were told by Crossrail is no cost-beneﬁt case for it. I asked for it and they that they were not going to consider alternatives. Do said, “We didn’t do one”, so you are spending £300 you remember using those words? million just because the Mayor wants it. (Mr Schabas) I was told by Cross London Rail Links in 2002 that they were not going to look at 12872. CHAIRMAN: Mr Schabas, I do not want to alternatives any more. stop you, but we are getting very seriously into the alternative routes. That is not what you are trying to 12882. That was a conversation that you had with say, you are trying to say, I think, there should be an Norman Haste, who was then the Chief executive of assessment. CLRL, was it not? Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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(Mr Schabas) Correct. (Mr Schabas) No, I am not.

12883. And what Mr Haste actually said, because Mr 12892. So far as the Parsons BrinckerhoV Report is Berryman was there, was he told you that CLRL was concerned, are you aware it was sent to the Society not going to consider alternatives “that had no hope and the Mayfair residents on 25 May 2007? of success”. That is the complete quotation, is it not? (Mr Schabas) I am not aware of the precise date but (Mr Schabas) I did not take a recording of the I guess I was given it a few months ago. meeting but it sounds like the sort of thing he might have said as part of the discussion, yes. 12893. Just reverting to the question of trees, you suggested that Cavendish Square was a much better 12884. He did not say CLRL is not going to consider location because there was going to be extensive tree alternatives; what he said was CLRL is not going to loss in Hanover Square from our proposals. I assume consider alternatives that have no hope of success. from what you said that you were not aware that our That is the truth of the situation, is it not, Mr proposals as they currently stand are that there will Schabas? be no tree loss in Hanover Square? (Mr Schabas) Yes, it is. (Mr Schabas) I am delighted to hear that.

12885. Thank you. Now so far as Cavendish Square 12894. You were not aware of that? is concerned, just a couple of questions; have you ever (Mr Schabas) I was not aware that you were not been to Cavendish Square? aVecting any trees. (Mr Schabas) Yes. 12895. MS LIEVEN: Thank you. Thank you very 12886. You therefore must be aware that there are a much, Mr Schabas. large number of fully mature plane trees in Cavendish Square? 12896. CHAIRMAN: Any re-examination, Mr (Mr Schabas) Around — — yes. Goodman?

12887. So when you gave evidence earlier that there 12897. MR GOODMAN: No, my Lord. were no trees in Cavendish Square that was simply wrong? 12898. CHAIRMAN: Thank you very much, Mr (Mr Schabas) The are in parts that are not aVected by Schabas. the car park. They have a four-level underground car park that goes down. The witness withdrew

12888. There are a large number of fully mature plane 12899. CHAIRMAN: Have you got any other trees in Cavendish Square, yes. witnesses? (Mr Schabas) Yes. 12900. MR GOODMAN: Mr Schabas is my only 12889. The other point is that you said Cavendish witness. Square has been bombed and it is a good site for a work site. Cavendish Square is surrounded on three 12901. CHAIRMAN: I wonder if you could help me sides by original Georgian buildings, is not it? about this Cavendish Square proposal. Supposing (Mr Schabas) The north side is only partly Georgian, that a further assessment is made along the EIA lines. the south side is all new, the east and the west side are To what does that lead? What would it lead to? Georgian buildings. 12902. MR GOODMAN: The further assessment 12890. Thank you. Have you carried out any analysis would look at the harm that would be created to local of how many listed buildings there are in Cavendish residents by noise disturbance, lorry movements, and Square compared to Hanover Square? so on, and would thereby provide— (Mr Schabas) No, I do not have the budget and I do not think Crossrail did either. 12903. CHAIRMAN: — In the Cavendish Square case? 12891. So far as RAM’s knowledge of the Wigmore Street work is concerned, are you aware that a 12904. MR GOODMAN: — In the Cavendish presentation was given to the Society and the Square case and would thereby provide a mechanism Mayfair residents in February 2005 that covered the for carrying out a comparative analysis with regard Wigmore Street alignment? to the Promoters’ route. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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12905. CHAIRMAN: What then would come of this 12913. CHAIRMAN: So it does not lead to an assessment? alternative route but it leads to something in the nature of an indemnity for people in Mayfair; is 12906. MR GOODMAN: That then oVers the that right? opportunity for public comment and consultation to be made. That is the intention. 12914. MR GOODMAN: I do not think an indemnity, I am not sure where that is coming from. 12907. CHAIRMAN: And what would that lead to? 12915. CHAIRMAN: A more stringent level of conditions in putting things right and all the rest of it? 12908. MR GOODMAN: Should that then raise issues which are of concern to Parliament, the option 12916. MR GOODMAN: Yes. I do not have the full it then has is to act consistently with the directive and expertise on how a Code of Construction Practice before granting assent to the Act to allow further works but there are clearly best practice consideration of those measures. Obviously that methodologies that can be imposed and one might would have to be through an unusual procedure, but say in these circumstances we expect the absolute best that is the implication of the directive, that if you get practice to be required. to a point where you are going to grant assent and you have not carried out adequate environmental assessment, it would be contrary to the clear 12917. CHAIRMAN: Your clients have now had intention of that directive that such assessment be for ages a list of all the provisions that are proposed carried out and so where you came to that realisation to be taken: they are in the information papers and in it would be necessary to find some way of the Codes of Practice, and all the rest of it, and some accommodating that to ensure that the objectives of of them are in undertakings. Which ones do you want the directive were complied with. to improve? 12918. MR GOODMAN: My Lord, many of them 12909. CHAIRMAN: Would it not give Parliament are in the Petition itself and are set out in detail there. the opportunity of saying, “Oh well, after all, the I was trying to steer clear of going into the vast Wigmore Street and Cavendish Square route is the amount of detail that has been put into the Petition better one?” Is that what you are after? but there are many examples within that of the kinds of things— 12910. MR GOODMAN: What I am after at this stage is merely the proper opportunity for 12919. CHAIRMAN: I am afraid we have got a very consultation and comment. diYcult point here. If you are saying that this does not lead to an alternative route but it does lead to 12911. CHAIRMAN: I know you are but what does more stringent conditions being imposed on it lead to? Does it lead to the possibility that Crossrail, or the nominated undertaker when it Parliament is going to be asked to adopt an comes to the point, we will need to know which ones. alternative route? 12920. MR GOODMAN: One I have handed up to 12912. MR GOODMAN: There are two you is a two-page stapled pair of sheets and this is one possibilities but the primary one that I am concerned example of the kind of more stringent approach my with is if it is then acknowledged that this was a route clients would be seeking. This is an extract from a that would be less harmful, it leads to the field being Network Rail Code of Construction Practice in opened up, say, to the Promoter that in these relation to a Scottish railway. circumstances we therefore expect much more stringent conditions to be imposed, ensuring that the 12921. CHAIRMAN: That is what that is. harm to existing residents is minimised. I gave the example earlier: one can take reasonable steps to 12922. MS LIEVEN: My Lord, I am very unhappy secure against some form of harm or one can take about this. I was shown it for about ten seconds this best practice methodologies, and just as there are morning but no copies have been made available to diVerent degrees of stringency with which one can us and I have not been able to take instructions on it condition the way in which the construction works therefore. The rules in this Committee are absolutely are carried out, in that context, it is reasonable to clear that exhibits should have been given to us in expect a more stringent set of conditions to be advance. This is the first time I have raised this point imposed which gives a greater safeguard to those who in all the weeks we have been here. We have been are aVected by it. almost begging the Society and the Mayfair residents Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners to tell us what they want for months now, and to raise 12933. CHAIRMAN: You want large numbers of this at this point when I have not had any improvements of the conditions under which the opportunity to take instructions on it and I do not nominated undertaker will have to carry out his know what the content of it is, in my submission, is work? completely improper and totally unfair on the Promoters. If it was not sent to us months ago when 12934. MR GOODMAN: Yes. we asked for all the meetings, it should at least have been served on us yesterday so we could have taken 12935. CHAIRMAN: Large numbers? instructions. 12936. MR GOODMAN: There is a wide range 12923. MR GOODMAN: My Lord, my instructions flagged up by those instructing me in the Petition on are that this has been requested in writing by the a range of issues, you are absolutely right, my Lord. agent Marina Morisson Atwater. 12937. CHAIRMAN: Have you ever sought to 12924. CHAIRMAN: Requested? discuss any of these things with the Promoters in detail? 12925. MR GOODMAN: That the specific form of Code of Construction Practice has been requested to 12938. MR GOODMAN: Personally— mirror that adopted by Network Rail on this line— 12939. CHAIRMAN: No of course you have not; 12926. CHAIRMAN: What do you mean your clients? ‘requested’? Do you mean to say you asked to see it or you put it forward as a proposition that ought to 12940. MR GOODMAN: My Lord, I can only take be included in the undertakings? what has been said earlier by Ms Lieven that oVers have not been taken up but certainly I would encourage any opportunity to discuss those with 12927. MR GOODMAN: My instructions in a letter Crossrail. from Marina Morisson Atwater is that has been flagged up as the kind of measure that we are seeking 12941. CHAIRMAN: I am sure you would and it from Crossrail in relation to mitigation measures. would be very sensible of you to, but has it happened?

12928. CHAIRMAN: Do you know anything 12942. MR GOODMAN: It has not happened. about this? There have been no meetings, to my knowledge, between my clients and Crossrail. 12929. MS LIEVEN: My Lord, large numbers of requests have been made to us but what I have not 12943. CHAIRMAN: So they have never been seen is the exhibit that Mr Goodman is now putting through the interminable list of things you have very before you, which is the precedent from Scotland. properly put into your Petition? They have never Probably the content has been requested in letters but been discussed with the Promoters? there is an exhibit before this Committee that I have not got, I have seen for ten seconds, and which should 12944. MR GOODMAN: May I say ‘not yet’ would have been served on us yesterday. I would be very be my answer. grateful if at least now the Petitioners would have the goodness to give the Promoters a copy of it because I 12945. CHAIRMAN: This is the last day of this still have not got it. Committee’s sitting and if we are going to do anything about it, it is a bit late to say not yet because 12930. MR GOODMAN: I do apologise. I believed there is a lot of detail there, is this not? copies had been made and handed round to all the relevant parties. It is my error that one did not make 12946. MR GOODMAN: There is, my Lord. its way to Ms Lieven. 12947. CHAIRMAN: And the Scottish case is only 12931. CHAIRMAN: But that is not the only thing an example of the sort of thing that you want? you want? 12948. MR GOODMAN: Yes. 12932. MR GOODMAN: My Lord, I am not in a position to go through every detailed request, that is 12949. CHAIRMAN: But there are lots and lots why I have tried to focus on the issues. more. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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12950. MR GOODMAN: My Lord, I understand 12955. MR GOODMAN: That is certainly the way the diYculty faced by your Lordship. Looking at the I have been trying to put the case to you this morning. Petition there is a wide range of matters raised and The position is obviously that now it is very late in the the diYculty that I have had in advising my clients is process, it is going to be diYcult for us, and has been that the expertise, as I flagged up earlier, upon which very diYcult, without any technical experts, for us to those kind of demands can be made is simply not come up with any undertakings that are technically available to them, and that is why I made the second accurate or justifiable, and so my suggestion has been suggestion I did, that if this kind of procedure in the that the concerns be met by the provision of some future in the course of construction is to be very form of technical assistance so that as the matters go valuable to both parties, then my clients are going to along this feeling of anxiety that the bargains that have to have proper assistance. have been struck will not be kept, that the local authority will not stick up for them—and, incidentally, the group of local authorities referred to 12951. MS LIEVEN: My Lords, if I can just say, by your Lordship earlier today does not include having now seen this document for the first time and Tower Hamlets. Mr Berryman having seen it, it is plain that the substance of it is what we are doing, it is just we are 12956. CHAIRMAN: It has done one of the generic doing it through a complex suite of documents which exercises. is appropriate for a project the size of Crossrail. The precedent that has been put in front of you is for a 12957. MR GOODMAN: I understand it is not surface level railway that has very little to do with the included within all the agreements. issues that arise with Crossrail, and Mr Berryman will go into the witness box in a minute and explain 12958. CHAIRMAN: It has not been doing noise that the safeguards that Network Rail are giving on ones but it has done one of them. I think it has done the Airdrie railway are, in substance, the same, or the local employment one. possibly a little less comprehensive, than what we are doing. It is just an example that if the Petitioners had 12959. MR GOODMAN: My Lady, that is only talked to us and given this material to us in certainty the thrust of my argument today that I hope advance, clearly, we could have sorted out these the Committee will take on board. issues but, as far as this one is concerned, which is the one specific precedent they have produced, I can deal 12960. BARONESS FOOKES: It would be of value with it in evidence, I am happy to say. to your clients, I think, to go through this paper more thoroughly than one can do in a committee like this so they can see precisely in one formula what has been 12952. BARONESS FOOKES: Mr Goodman, the arranged and then to concentrate, I would suggest, Lord Chairman requested the Promoters to provide on making sure that these rules are enforced in a list of all the arrangements that were being made practice on the ground. through the various papers on noise and construction and so forth plus any particular undertakings and 12961. MR GOODMAN: Yes and indeed it would they have now been circulated. be sensible to take up the oVer of a meeting with Crossrail to have that explained, if that is still open. 12953. MR GOODMAN: I have not had a chance to go through them. 12962. CHAIRMAN: I think it would have been very much better, truthfully, if your clients had gone to talk to Crossrail a long time ago, even if they did 12954. BARONESS FOOKES: I appreciate that is not have the expertise, because these things are not probably not possible but my guess is that most of the particularly diYcult to understand, they really are concerns that have been expressed by your clients are not. actually addressed within this list of undertakings and general arrangements and that probably the real 12963. LORD BROOKE OF ALVERTHORPE: Is concern of your clients is whether they will actually there a formal forum, a liaison group like has been be carried out in practice. That, as I understand it, is suggested for Spitalfields? the worry of your clients, particularly as they appear to have no confidence in the local authority whom 12964. MS LIEVEN: There will be, my Lord, yes. one would expect to be the first line of defence, as it As I think we explained, the Spitalfields and were, for the interests of your clients. Would that be Paddington ones were set up early—in Spitalfields fair? because of local concerns and in Paddington because Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners of the particular complexity of the issues in the bounds of feasibility. I am doing this generously for scheme’s evolution. The intention is that there will be the opportunity for myself but I am not doing it in a similar liaison groups all the way up and down the comprehensive fashion as though my clients were route so there will be one in Mayfair. I do not know capable of instructing me to that degree of specificity whether it will cover the whole of Mayfair and down and I do not have the back-up of any expertise by to Tottenham Court Road but the area will be which I can assess the reasonableness of this. covered in the liaison group. 12977. CHAIRMAN: I do understand and I am sure 12965. CHAIRMAN: Mr Goodman, I do not think they are very grateful to you for taking this case on in all is lost. Here is the list of not only the undertakings the way that you have, and so are we, but there is no but the environmental minimum requirements which way forward unless you can point to the deficiencies are going to be imposed by contract on the that you claim exist. nominated undertaker and you have got a whole list of protective provisions here which ought to be helpful to your clients. 12978. MR GOODMAN: If that is the only way that the Committee does see a way to go forward —- I 12966. MR GOODMAN: Yes, my Lord, some of have tried to present an alternative way forward that them are helpful. I thought would ameliorate anxieties and diYculties of this nature in future, because unless the suggestion 12967. CHAIRMAN: The diYculty is that your I have put forward, or something of that nature, is clients will not discuss them with Crossrail. adopted over the next five years when those problems arise my clients will simply be in the same position of not having any expertise by which they can assess 12968. MR GOODMAN: I am told that some of properly the kind of undertakings or methodologies them are helpful and some of them do not go far that are being employed, so that is the alternative that enough as far as my clients are concerned. I proposed, and I propose that for very pragmatic reasons that I do not have the expertise personally by 12969. CHAIRMAN: But you cannot tell us which which I can go through and know which ones of these ones? are in accordance with industry best practice or not; that is not something I know about. 12970. MR GOODMAN: I can go through some of them in detail if it is helpful. 12979. CHAIRMAN: You cannot do it; I can quite 12971. CHAIRMAN: I will tell you what we will do, see that. if you want to pick out individual undertakings and minimum requirements which you say are 12980. MR GOODMAN: I can point out certain inadequate, why do I not invite the Promoters to call obvious deficiencies. Mr Berryman and you can put these points to him and say what it is that is wrong with the 12981. CHAIRMAN: Do not say it to us. It is much undertakings? better if you put it to Mr Berryman. Baroness Fookes has a point. 12972. MR GOODMAN: I would be content to do that. I would need a small opportunity of taking instructions on that. 12982. BARONESS FOOKES: Mr Goodman, the Promoters have already suggested that there should 12973. CHAIRMAN: Have you not taken be a helpline when there is actually work going on. I instructions on all these things? wonder whether it might be fruitful to look at that in more detail and see whether, as it stands at the 12974. MR GOODMAN: I have only received this moment, it is adequate or whether it might perhaps list this morning. be beefed up to provide the kind of simple arrangement for your clients who are worried—and I 12975. CHAIRMAN: But it has been available for do understand why they are worried—and see ages. whether something fruitful might come from that. It might be worth exploring. 12976. MR GOODMAN: I have explained to your Lordship that I have not had the opportunity of 12983. MR GOODMAN: That is very much the reading every document and covering every angle nature of my suggestion, that the helpline become a that arises out of this case. It is simply not within the help service of a more beefed-up nature. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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12984. BARONESS FOOKES: But you were 12995. MS LIEVEN: Can I suggest, my Lord, that asking for it to be totally independent and I think that I put Mr Berryman into the witness box and go does provide us with problems, but if the Promoter’s through a number of the issues that have been raised own helpline could be strengthened, improved and this morning. It may then be close to the lunch given a greater explanation it might be a compromise. adjournment so Mr Goodman, if he needed to, could maybe ask for an adjournment at that point. There is 12985. MR GOODMAN: I appreciate it may be a a large number of points that Mr Berryman can deal compromise. with in examination-in-chief which may not set the residents’ minds entirely at rest but I hope will set the Committee’s mind largely at rest, so perhaps we 12986. BARONESS FOOKES: From your point could do that first. of view. 12996. CHAIRMAN: I think that is a very sensible 12987. MR GOODMAN: From our point of view. suggestion and that will then give you some time to Clearly there would be reservations about something take instructions. by which we seek advice from the Promoter about the Promoter’s shortcomings, but if that is all we can MrKeithBerryman, recalled hope to achieve by way of undertaking or recommendation then— Examined byMsLieven 12997. MS LIEVEN: Mr Berryman, I am not going 12988. BARONESS FOOKES: It will be a means, if to introduce you on this last day of the Committee; I you like, of putting pressure on the Promoters by think we all know who you are. There is a number of using the service that is provided. Anyway, I simply points that I want to cover. Can we start on the put that forward as a possible help. consultation/local residents’ involvement point and can you explain to the Committee how it is intended 12989. MR GOODMAN: I appreciate that that local residents will be informed and involved in suggestion. the processes of Crossrail as it goes forwards from Royal Assent? 12990. CHAIRMAN: The other thing, Mr (Mr Berryman) As I think the Lord Chairman has Goodman, is that in other areas where this project is mentioned, we have already established a couple of going to proceed there are liaison groups, and we liaison panels and they will be established for the have had the experience just the other day of one of whole length of the route, including the surface them, and it works extremely well. It is a two-way sections as well as the underground sections. There trade and you will find that the local residents have will be, in addition to that, a number of one-stop meetings on all sorts of technical matters. They are shops, we are calling them, where they will be open, not professionally advised but they have been able to possibly not every day, to allow people to go in and carry on a dialogue with Crossrail which has enabled get information about specific matters. We will have a great number of things to be not yet solved but, at a 24-hour a day helpline. We already have such a any rate, clarified as to what the solution might be. helpline but obviously at the moment no construction is proceeding so the helpline tends to be 12991. MR GOODMAN: Indeed many of those are involved in matters like property purchase and things my clients as part of the wider coalition that I of that sort. The helpline will be beefed up to provide represent today. a full 24-hour service. In addition, there will be a complaints procedure which people will have easy access to which will be headed by a Complaints 12992. CHAIRMAN: It has not been a success in Commissioner who will be a person of appropriate Spitalfields but it has been a success elsewhere. seniority in the community to take that role. Anyway, do you want to put some of those deficiencies to Mr Berryman? 12998. CHAIRMAN: Independent? (Mr Berryman) Independent. On the Channel 12993. MR GOODMAN: If I can have a short Tunnel that role was taken by Professor Kennerly adjournment to take instructions on them. That is the who was I think a Professor of Planning Law, and we only way in which I could feasibly do that. will appoint someone of similar stature to be the Commissioner for that and he will have an 12994. CHAIRMAN: The Promoters can open their independent role almost like an Ombudsman-type of case, you can take some instructions and Mr role, so he will be able to have access to all the Berryman will be in the witness box. information he needs and so on. Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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12999. CHAIRMAN: He would have access to 13004. So then turning to Mr Goodman’s proposal, professional advice if he wanted it? it is not entirely clear to me precisely what the (Mr Berryman) If he felt he needed it. I understand proposal is but let us assume it is in this shape that that on the Channel Tunnel Rail Link that situation there will be some kind of independent advocacy never arose and he always felt the issues were expert body that local residents can go to and say: suYciently tractable for him to deal with himself, but “We do not like 24-hour working at Bond Street for it would be someone with experience of planning law ten days; please advise us whether we can stop it,” or construction or one of those areas that is relevant what kind of problems do you envisage with that? to the process. (Mr Berryman) We would envisage, and I think I have given several bits of evidence on this point, that 13000. BARONESS FOOKES: So he would be his the appropriate body to do that would be the local own expert in many respects? authority, they would provide the independent third (Mr Berryman) In some respects, my Lady, but he party advice, they have the technical expertise to deal would have the capacity to call on expert advice, with the impacts in the local area and the local professional advice, if needed. knowledge which is necessary. I think if there were to be another body, we would be back into the situation 13001. MS LIEVEN: Just staying on the which we described in connection with the Complaints Commissioner for a moment, as far as Corporation of London at the Billingsgate Fish you are aware, through talking to people involved in Market where we have been trying to get approval the project, did that system work well on the Channel from two separate bodies, and that becomes very, Tunnel Rail Link project which has just been very diYcult to do. It is much better if we have an completed? authority, in this case the local authority, who is the (Mr Berryman) Yes, it appeared to work very well. responsible body for ensuring that all that kind of There was only one significant issue which has thing is co-ordinated and we have a single channel of already been raised in front of this House and that approval for all the matters that we deal with. was the issue about working hours at King’s Cross, and that was rather a complex issue, but that was the 13005. CHAIRMAN: And they have got statutory only area where there was any significant diYculty at duties to do it anyway, have they not? all and that matter was ultimately solved by, amongst (Mr Berryman) Indeed they have, my Lord. other things, setting up a liaison panel. 13006. MS LIEVEN: Thank you. Now, can we 13002. I want to then turn to the role of local move on to a related issue— authorities. Just explain to us, if you would, when you come forward with specific proposals for Bond 13007. LORD BROOKE OF ALVERTHORPE: Street Station, where the lorry routes are going to go, Ordinary people—anybody who travels on the or the particular hours that are needed and if there is Underground in the morning will know that any change to the hours, matters like that, will the conditions often are quite intolerable in the rush local authority be involved in those matters? hour. (Mr Berryman) The local authority will indeed be (Mr Berryman) Indeed. involved in them. It is set out on the face of the Bill that those matters need the approval of the local 13008. LORD SNAPE: Not just in the morning! authority and that will obviously be the case. Formally it will be for the local authority to consult 13009. LORD BROOKE OF ALVERTHORPE: residents and so on. I think we have already said in When do ordinary people have a right to complain connection with the Paddington area that where under European legislation about the conditions, or there are special issues which might require do they have a right? consultation with the public, we are prepared to (Mr Berryman) I am afraid you are well outside my circulate documents to appropriate public groups area of expertise there, my Lord. I have no more and residents’ groups and people of that sort at the knowledge than you on that matter and it is same time as we submit them to the Council. something which I have often wondered about myself, indeed with a view to making such a 13003. And will it be open to the Council to consult complaint. more widely with local residents on matters such as section 60 applications if they think it is appropriate 13010. It brings me to the point that Crossrail is on the facts of the particular case? projected to ease the burden that people are suVering, (Mr Berryman) Yes it will and we would expect them particularly in the central area with the projected to do that. growth in passengers on the Underground, but, if Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners there is a delay in finishing this project, who is going (Mr Berryman) Ombudsman-like, my Lady. to be held responsible for it and accountable to the ordinary people? 13015. BARONESS FOOKES: Yes, ombudsman- (Mr Berryman) Well, at the end of the day, my Lord, like character. If he has a position of authority and of I assume it is a government matter because they are knowledge, would he not be able informally, if not held accountable for just about everything, as far as formally, to put considerable pressure on local I can make out. authorities who were not carrying out their duties as they should? (Mr Berryman) I think the intention of the role is to 13011. LORD SNAPE: As they are likely to find put pressure informally or otherwise on the out shortly! nominated undertaker, which we expect to be us, but (Mr Berryman) So I think that that is the sort of I am sure that that could be a part of his role. We matter which is at the government level really. know from the Channel Tunnel experience that Professor Kennerly, who was the necessary oYcial, 13012. LORD BROOKE OF ALVERTHORPE: had a very good working relationship with all the This may seem well wide of what we are dealing with local authorities that the Channel Tunnel Rail Link this morning, but I am just anxious in my head to went through and he was able, in an informal way as establish a balance about the needs and interests of you have described, to expedite and help with some ordinary people and here we are being asked to set up of those matters. an additional body, an additional body, to protect the interests and I have got a good deal of sympathy. 13016. So in fact it would almost be a dual role I live in Brighton where they are proposing to put up because he would be able to bring pressure or at least a 42-storey building in the marina in front of where I fruitful discussions with whoever is the contractor live and this flies in the face of a previous Private and with the local authorities who are a part of this? Member’s Bill which limited any development to the (Mr Berryman) That is right, but I think the formal height of the cliV, but nonetheless, it is going ahead, role would be the first part of that. They would no so I have a good deal of sympathy with what the doubt have, as in most aspects of life, a formal role residents are seeking to achieve here. The balance is and an informal role and I would imagine that that the need for additional housing, social housing would be part of the informal role. particularly, and there is a balance here and I am not quite sure, when we are starting to explore the 13017. Well, I am being pragmatic and I do not care prospects of if we responded to the suggestion that which way it comes as long as the results are there. there should be a further independent expert, where (Mr Berryman) Quite so. the rights of the ordinary citizen who travels on the Underground come in and whether they have an 13018. MS LIEVEN: Just staying on Lady Fookes’ opportunity of coming in to express a view. point, if there was a local authority that was really (Mr Berryman) Well, my Lord, there are an awful lot dragging its feet and not doing its duty by its local of them and, if they came in here, it would be a residents in respect of some aspects of the Crossrail diYcult situation, I am sure! I would imagine that project, is that a matter—I do not know whether you most of the people who travel on the Underground are going to be able to answer this—which the Local get pretty fed up with the overcrowding on it and Government Ombudsman himself could deal with, would be anxious that something is done to relieve not just our commissioner, but would it be a matter that overcrowding, and the Crossrail project is one of for the Local Government Ombudsman? those things which can provide that relief. (Mr Berryman) Well, if it was suYcient, but this is an area which is well outside my area of expertise and I just know as a person who lives in the country that 13013. So there is no formal mechanism? yes, that would be my understanding anyway. You (Mr Berryman) There is no formal mechanism, my will know more than I on that. Lord. I have been involved in many projects in my career and it is always the case that the beneficiaries do not really have a way of expressing their view, but 13019. Yes, I am afraid I am using you as a the people who are going to be aVected always mechanism for putting it in as evidence. Just on the express their view very strongly. specifics here, we have heard from Mr Goodman, speaking on behalf primarily of the Residents’ Association of Mayfair, about a lack of faith in their 13014. BARONESS FOOKES: Mr Berryman, local authority, which is Westminster City Council. going back to the role of your independent Now, I know from the evidence you have already ombudsman, I think you described him as— given that you have had a very great deal of Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners involvement with, discussion with and exposure to 13025. Is he on the end of the helpline? Westminster City Council in respect of the Crossrail (Mr Berryman) The nominated undertaker will be on project. Has that experience led you to believe that the end of the helpline, my Lord. they would be dilatory in the protection of local residents’ interests in respect of the Crossrail project? 13026. MS LIEVEN: And then, if the nominated (Mr Berryman) On the contrary, I have been very undertaker does not do his duties, the Secretary of impressed with the professional competence and the State. Is that right? diligence of the Tower Hamlets oYcers that we deal (Mr Berryman) That is right, but I think it is quite with in— unlikely that the Secretary of State would be on the end of the helpline! 13020. Sorry, Westminster, Mr Berryman. 13027. I appreciate that the Secretary of State, (Mr Berryman) Westminster? whoever he or she may be, at relevant times may not be on the end of the helpline, but ultimately in terms 13021. Yes, that is why I put it in that way. You may of enforcement the line of responsibility goes back to have issues with Westminster oYcers which I am not the Secretary of State? going to touch upon, but, in terms of the level of (Mr Berryman) Although if he or she were, it would eVort they put in to protect local residents’ interests, probably expedite action rather more! do you have any doubts that they will do their utmost to protect those interests? 13028. Maybe it should be a provision that for one (Mr Berryman) None at all, particularly in the case day he or she is required to do so! I will leave that in of Westminster. the hands of the Committee.

13029. LORD SNAPE: There is no inference there, 13022. Can we move on to general environmental Ms Lieven, that the politicians in this or any other protection issues and I just want to clarify something government are out of touch with public opinion! that I think the Lord Chairman raised earlier. Can you just explain to the Committee what the 13030. MS LIEVEN: But I did not say that on environmental minimum requirements are and where instructions, I would rapidly say! So far as the Code they are set out? of Construction Practice is concerned, Mr Berryman, (Mr Berryman) Yes, the environmental minimum I think the most recent draft which is very close to requirements— being the ﬁnal draft is in the information papers at D1. Is that right? 13023. The EMRs. (Mr Berryman) Yes, I think that is right. (Mr Berryman)— the EMRs, as they are called for short, are those provisions which the people building 13031. So it is on the net and it is fully available to the the works are expected to comply with. The public to see? Is that right? overwhelming majority of them are contained in the (Mr Berryman) That is correct, yes, and, as you say, Code of Construction Practice and the Code of it is very close to being agreed by all the local Construction Practice will form part of all the works authorities. This is a matter which comes before the contracts which are let for the construction of the Planning Forum where all the local authorities get works. The relationship, as you probably realise, will together. be that the Secretary of State will appoint the nominated undertaker and the nominated 13032. That is the next topic I just want to touch on. undertaker will appoint the works contractors who Have the local authorities been involved in the do the works. The contract between the nominated drawing up of the Code of Construction Practice and undertaker and the works contractors will include, as the other documents which form the EMRs? part of the documentation, the Code of Construction (Mr Berryman) Yes, they have. They have been Practice which sets out things like hours of working, consulted all the way through and they have agreed noise procedures, dust management, all that sort of the form that they should take and the details as well. thing, and they will be contractually obliged to I would just like to make a point in answer to my comply with those conditions. Lord Chairman’s remarks earlier. Each local authority has taken responsibility for one aspect of the works but they have to secure the agreement of all 13024. CHAIRMAN: Who enforces that? their colleagues on that aspect. One authority has led (Mr Berryman) The nominated undertaker, my the negotiation but at the same time has been seeking Lord, in the ﬁrst instance. and gaining the agreement of all their colleague local Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners authorities before agreeing to the actual wording that similar to those set out in paragraph 8.2 and indeed is put forward. 8.3.

13033. We have talked a little bit about Westminster, 13037. Let us just look at 8.3, “Defects surveys after but so far as Tower Hamlets are concerned, I think it construction of works. Contractors will properly is right that they were the lead authority on safeguard all buildings or other structures or construction noise? erections that might be at risk from the works, from (Mr Berryman) To be honest I cannot remember, but harm, disturbance, or deterioration prior to they were the lead authority on one of the major construction. Contractors will implement all agreed issues, yes. measures required for the protection of all pipes, cables, sewers, railways and other apparatus during 13034. CHAIRMAN: I thought it was Havering. the construction period.” Is that in substance any diVerent from what we are proposing? (Mr Berryman) No. 13035. MS LIEVEN: Havering were fixed plant noise, that is operational vents and things like that, Tower Hamlets were the actual construction noise 13038. Not just what we are proposing but what we and Westminster were working hours. Let us just deal will be required to do, is that right? with one aspect of the EMRs, which is the one that (Mr Berryman) Indeed. the Society and the Mayfair residents5 this morning have referred to specifically. Can I have put up this 13039. I think the final issue that I need to cover with extract from the Network Rail Airdrie Bathgate you briefly is the Wigmore Street/Cavendish Square Railway Environmental Statement? I just want to alignment. First of all, I know that you are very keen go through these two paragraphs and for you to to get this on the record. So far as this conversation explain—it is 8.2 and 8.3—how they are dealt with that was referred to extensively in the House of within the Crossrail scheme of things, but before we Commons between Mr Schabas and Mr Haste, who do that, do you just want to touch on the degree to was then the Chief Executive of CTRL, about the which in any event this Airdrie railway is a relevant consideration of alternatives is concerned, do you precedent for Crossrail? just want to explain so that it is on the record what (Mr Berryman) Actually, I am not all that familiar was actually said as you were there? with it. I understand it is mainly a surface railway. I (Mr Berryman) Yes. Mr Schabas did some work for am advised by agents, who I think were acting for us in trying to develop what he called the river them as well, that it was a surface railway. scheme, the southern alignment. It became very clear to us that there was not much hope that this was ever 13036. Let us deal with the two paragraphs just to try going to be a viable proposition. We arranged a and put this issue at rest. Paragraph 8.2 is entitled meeting with Mr Schabas during the course of which “Structure damage assessments before construction Mr Haste said, in my presence, of which I made a of works”. The Committee can read it for themselves. special note, “I don’t have the time or the money to It is a brief outline of a scheme to deal with ground look at alternatives which have no hope of success,” movement, settlement or heave. How does that relate and that has been repeated by Mr Schabas several to the perhaps rather more detailed provisions that times but missing oV the last clause, which changes the Crossrail project is setting out in respect of the meaning of the words by 180 degrees. settlement issues? (Mr Berryman) To all intents and purposes it is the 13040. Let us look very briefly at this one alternative6 same. As you say quite rightly, it is a very much which is being put up now and where it is being abridged version of our Information Paper on the suggested that we should carry out a further SES, matter. I think the issues with a tunnelled railway as Supplementary Environmental Statement. How opposed to a surface railway are much more many Environmental Statements have we had by complicated and for that reason our Information now? Perhaps you cannot remember. Paper is much more complicated, but the general (Mr Berryman) I actually do not know but it is quite principle is identical to those provisions which we set a large number. down in our policy on this matter. Anyone who has a settlement deed or even anyone who does not have a settlement deed would still be entitled to the benefits 13041. We have had a fourth Supplementary

5 Environmental Statement, have we not? Practice—Construction of Airdrie Bathgate Railway and linked 6 improvements (SCN-20080508-004) (LINEWD—ES40-011) Crossrail Ref: P80, Network Rail—Code of Construction Crossrail Ref: P80, Bond Street Station—Transport and Access Processed: 14-08-2008 20:08:04 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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(Mr Berryman) We have. benefits were manifestly less attractive, there was no point in pursuing. We did pursue two other 13042. As far as the alternative alignment known as alternatives in more detail: one is called the northern the Wigmore Street alignment is concerned, it runs alignment, which links the mainline railway stations, from Paddington, across the Hyde Park estate and and the other is called the southern alignment, which north of Oxford Street, does it? I have spoken about with Mr Schabas, because they (Mr Berryman) That is right. It runs about here were going to completely diVerent areas. If we had (indicating) where I am just putting the pointer. found that one of those was more attractive in traYc terms then we would have done more detailed design 13043. Just explain to the Committee why that was and more refinement. The Wigmore Street alignment not considered to be a main alternative which needed was dismissed at a fairly early stage because it was to be assessed in the Environmental Statement? clear that it was serving the same destinations but (Mr Berryman) As has been explained to the less well. Committee, we commissioned Parsons BrinckerhoV to do a study of this matter almost at the start of the 13045. MS LIEVEN: In terms of interchange at project. It was not the very first thing that was done Bond Street and Tottenham Court Road, and but it was in the first couple of years, at the time really therefore relieving the Central Line, did the Wigmore long before a Bill was being prepared or even before Street alignment work as well as the Bill scheme? ministers had agreed that we should have a Bill, so (Mr Berryman) No, not as well at all. There would this was a very early study that was done. We looked have been long corridors to allow interchange. at this idea, it had been looked at before by the 1992 Certainly up here (indicating) and also at Tottenham scheme and rejected for a variety of reasons, but we Court Road. Indeed, at Tottenham Court Road— decided that in our consideration of alternatives, this plan does not show it—there is a major problem, which obviously we have to do as part of the process, in that there is a whole group of tall buildings with we would look at it again, so we commissioned a very deep foundations immediately to the north of report from Parsons BrinckerhoV. There were a Oxford Street at that point, and that would have number of problems with it. The particular diYculty pushed the alignment very far to the north, well away was with the stations. We have heard a great deal from the existing Tottenham Court Road station, from the Petitioners here about the harm that will be and obviously, interchange with that station is an caused by the construction of Crossrail. We would important factor in the project. argue quite strongly, as I think you have heard us argue on many occasions, that the only harm that we 13046. Yes. I was just going to touch on those two would conceivably do to people who live in the area is construction problems. I think one of the buildings where we come to the surface. When we are 30 metres you are referring to at Tottenham Court Road is a below ground then we would argue quite strongly building some members of the Committee may be that we do not do any harm. The issue of harm which familiar with, the YMCA Building. the Petitioners’ barrister referred to is really to do (Mr Berryman) I doubt if they are as familiar with it with where the station entrances are and where the as I am, because I designed the basement for the accesses are for the underground works from the YMCA when I was a graduate trainee. You can guess surface. One of the problems with the Wigmore my age from that! Street alignment is it proved to be quite diYcult to identify suitable sites for that to be done. It did not 13047. Just on construction diYculties east of Regent seem to have any environmental advantages over the Street, Oxford Circus, so well away from the route which we have taken forward. The concerns of the Mayfair residents, was there a disadvantage is that it is about 150 metres further problem with putting a ticket hall on Post OYce away from Oxford Street, which is the main land? destination point for people in this area. There is also (Mr Berryman) Yes. One of the issues with these very much more traYc going to the south into Mayfair large stations and very long stations is that you have rather than going north. to have ventilation and escape provision at each end of the station, even if you do not have an entrance at 13044. You do not mean vehicular traYc, do you? each end. In fact, we have entrances at each end in (Mr Berryman) I do not mean vehicular traYc, I most of our stations. Even if you do not have an mean pedestrian traYc. It just seemed that a scheme entrance, you have to have ventilation and escape which had no environmental benefits, in other words stair provision, and they have to come up somewhere. the environmental consequences of building it were It is much better if you can bring them up from at least as bad and probably worse than the between the tracks, for obvious reasons: you can alignment which we finally selected and the transport serve both tracks with one shaft. 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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners very diYcult thing to solve on the sites we brieﬂy 13054. LORD JAMES OF BLACKHEATH: The looked at on the Wigmore Street alignment. one I have just described is very close to Hatﬁeld.

13048. Bringing that all together, was it your view 13055. MR ELVIN: Indeed. The position is this: and that of the project, when the environmental that the modelling which has been done to date at a statement was being drawn up, that it was necessary high level already takes account of such matters but, to consider this as a main alternative? as you will have seen from the paper, there is (Mr Berryman) No, we did not consider it as a main continuing development of the model and the safety alternative. We do not consider that it is a main assessment as the detailed design continues and alternative. whilst the catastrophic cumulative consequences are already factored in at a high level, they will be factored in properly in detail as the detailed design is 13049. MS LIEVEN: That is all, Mr Berryman. I do developed. That sort of modelling will be part of the not know whether you want a break now, my Lord. modelling which will take place and that will then factor itself into the safety mitigation measures and 13050. CHAIRMAN: I was going to suggest we did the development of the detailed design. break now but Mr Elvin wanted to say something, I believe. 13056. LORD JAMES OF BLACKHEATH: For the sake of completeness, Mr Elvin, I might just say The witness withdrew that my concern with the paper that was presented was that it did not adequately address the impact of superimposing another rail structure on top of 13051. MR ELVIN: My Lords, I thought I would another without looking at what the collective eVect come back on Lord James’s query in relation to the of small collective errors might be together in safety paper and the issue as to what extent, in creating a disaster. looking at safety issues, have we modelled catastrophic possibilities, namely, in particular, the 13057. MR ELVIN: My Lord, I am assured—and I cumulative occurrences of events which, in isolation, asked for the two senior staV members who have may be less serious than when they are combined in been concerned with the modelling to come and unexpected combinations. Certainly, it is accepted explain it to me, and I am told that they would expect that, of course, there may well be accidents or failures all of this modelling, as I say, it is partly factored in which occur in combination which may have far because, of course, as your Lordship will be aware, greater catastrophic consequences than if they the modelling takes account of the existing history of occurred singly and in isolation. failures and accidents on the rail networks to date, and some of those, of course, include to a certain 13052. LORD JAMES OF BLACKHEATH: Shall degree catastrophic— we give the bemused Committee an idea as to the cases we had suggested between us would be the sort 13058. LORD JAMES OF BLACKHEATH: I hope of case, that if the increase in the rail lay-out that is you and your colleagues will forgive me therefore, as created put such an extreme strain on the track this is the last day, if I say that in this particular case checking machinery that they had a breakdown of I thought that the exercise that had been undertaken two of the seven pieces of equipment or whatever it is was extremely lightweight and inadequate given the that were available, that they had for a period of time size and horrendous potential for risks that are a deﬁciency of track checking equipment which involved. coincided with a failure of the signalling system, and the two half-factors together combined to create a 13059. MR ELVIN: My Lord, I think we have catastrophe. probably done a disservice to the modelling in producing so short a paper. 13053. MR ELVIN: Can I tell your Lordship—and I hope your Lordship will be pleased to hear this—that 13060. LORD JAMES OF BLACKHEATH: I just there is no issue that those are matters which have to wanted to go on the record with that comment. That be taken into account in the modelling, and certainly was all. it is common ground that such combinations of factors have in the past led to catastrophic failure and 13061. MR ELVIN: My Lord, can I simply say for that catastrophic failures have often occurred as a the record that the paper is only a very general result of unexpected combinations of diVerent statement. The modelling is much more complex and failures. does take account of the catastrophic combinations, Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners the adding together of diVerent factors cumulatively 13072. MR ELVIN: The model takes account of to generate diVerent catastrophic failures than might matters such as the history of previous events, it takes occur if they were to occur individually. That is to be account of frequency, the nature of the events which taken into account. have occurred, the extent to which the events give rise to problems of a particular magnitude, but it covers 13062. LORD JAMES OF BLACKHEATH: I shall not only the National Rail network; it includes also say no more on the subject. I have said my piece. the Underground network. It includes a variety of infrastructure operators and not just Network Rail. 13063. MR ELVIN: Can I give your Lordship one It covers the whole range. For example, to take an example of where this has occurred in the past, where example which comes directly from London the safety measures have built such matters in? If I Underground rather than from the National Rail take Eurotunnel, I am told that because of the network, it models the risk of suicides taken from catastrophe modelling, seven layers of redundancy Underground experience, and that will lead in due were built into the signalling for the tunnel in order course to platform doors such as exist on the new part to take account of precisely the sort of catastrophic of the Jubilee Line. Experience is derived in the combination consequences which might occur, and modelling not only from the national rail network appropriate mitigation measures will in due course be but more generally in the rail industry. built into Crossrail. 13073. CHAIRMAN: Thank you, Mr Elvin. I think 13064. LORD JAMES OF BLACKHEATH: also at some time you want to say something about Thank you. what has been attributed to you by the Woodseer and Hanbury Residents’ Association. 13065. MR ELVIN: I am much obliged. I hope that 13074. MR ELVIN: My Lord, there are a number of deals satisfactorily with that issue. matters that I hope to refer to this afternoon. I would like to respond on the Woodseer and Hanbury letter. 13066. BARONESS FOOKES: Would I be right in I am able to present a position on the freight thinking, Mr Elvin, that if one attempted to go into undertaking and give some further explanation and all the detail about which my colleague has spoken, it some modification to the undertaking which was would probably be incomprehensible? proposed. I have sought clarification of certain matters and I hope I can explain that satisfactorily to 13067. MR ELVIN: The modelling is very complex the Committee. I think I need to deal with the and is very detailed. I have to say, I take, to a large infrastructure manager and give a few separate extent, the blame for the paper being very generalised explanations on that. I think Mr Taylor is going to and for not dealing specifically with that point in the respond to points on the compensation paper. If we initial paper, because I wanted it to be as could deal with that at a convenient point this comprehensible as possible. I asked those responsible afternoon. to explain it in terms which I understood in the hope that I could then explain it to your Lordship’s 13075. CHAIRMAN: Yes. I think we had better Committee but, my Lady, I hope the Committee are deal with the letter from Woodseer and Hanbury reassured that it is only the tip of the iceberg and it is while Mr Goodman is here and the rest we can leave only a general explanation and that far more until later. complexity lies under the surface. 13076. MR ELVIN: Can I deal with that at 2.30 in 13068. BARONESS FOOKES: Thank you. that case?

13069. LORD BROOKE OF ALVERTHORPE: 13077. CHAIRMAN: I wondered whether we could Do the models take into account circumstances come back a little bit before that. where Network Rail does not own the facility? 13078. MR ELVIN: Whatever is convenient to your 13070. MR ELVIN: It takes account of whoever Lordships. owns the facility. 13079. CHAIRMAN: We will come back at 2.15pm. 13071. LORD BROOKE OF ALVERTHORPE: The Committee adjourned from 1.04pm until 2.15pm Because there are circumstances, as we know from past history, where a range of ownerships can lead to 13080. CHAIRMAN: Welcome back. Mr Elvin, do greater risk. you want to say anything ﬁrst? Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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13081. MR ELVIN: I thought your Lordship TfL letter on the basis of if the safety case is then wanted us to deal with Woodseer and Hanbury accepted. My understanding of the position is that if Residents’ Association at 2.15pm. matters move in the direction that the TfL letter hopes will be the case, namely that the shaft is no 13082. CHAIRMAN: If you would like to do that, longer required, it is not proposed to remove the shaft please do. from the Bill, it would be rather too late in the day to do that, we expect, but if necessary we will consider 13083. MR ELVIN: If that is convenient to the whether any further undertakings are necessary. I Committee. Ms Khela and Mr Carpenter are here. If suspect the undertaking to Tower Hamlets already your Lordships recall, on Tuesday evening I meets the requirements, but certainly there will be no suggested that in order to speed matters up written appetite to build a shaft which is unnecessary and material should be submitted to the Committee if spend money which is unnecessary. that is what the Petitioners requested. Written material was submitted last night which we have now7 13091. CHAIRMAN: You just would not do it. received and it is necessary I think that I make some response. The swiftest way of making the response is in Committee. May I ask for the letter to be put up. 13092. MR ELVIN: We just would not do it. As I say, we have given that undertaking. For the record, 13084. CHAIRMAN: We have got it. it is the undertaking to Tower Hamlets, number 394 in the register. That is the first point. 13085. MR ELVIN: It is a letter of 7 May, my Lords. 13093. The second point relates to matters at 13086. CHAIRMAN: I think you start on page paragraph two about defects and health and three, do you not? Committee recommendations. My Lords, we have made our submissions on those issues during the 13087. MR ELVIN: There are a number of matters course of the Spitalfields hearing. Your Lordships that I may need to deal with point by point if the have received the evidence and our submissions on Committee would bear with me. So far as point one those matters and no doubt you will say whatever is concerned, which relates to a letter from Transport your Lordships consider to be appropriate in due for London in the bundle dated 24 April this year course in your report. I have nothing to add to relating to the possibility of the deletion of the anything which has been said on that. Hanbury Street shaft, you will recall I anticipated that letter when I spoke to the Committee on 22 13094. Thirdly, an alleged anomaly with paragraph April. I mentioned it then and I think the reference is three relating to the Strategic Environmental day 21, paragraph 8524. Assessment. My Lords, the simple reason I did not mention it is because I dealt with it in my written 13088. The position so far as we can see from that submissions when Mr Horton was making his letter, you will see it in terms of conditionality submissions. The strategic environmental assessment throughout, we have already given an undertaking, directive does not apply to Crossrail because unlike the Committee may recall, to Tower Hamlets that we the environmental impact assessment directive, the will continue to develop the proposals for the shaft to strategic directive applies to the formulation of plans see whether, in fact, the need for the shaft can be and policies, not to the consent for projects. It is one removed altogether. stage removed at policy formulation stage. SEA does not bite on projects as such, which is why you have an 13089. CHAIRMAN: That I remember. environmental impact assessment directive, because this is a project which is seeking consent through the 13090. MR ELVIN: An undertaking is on the parliamentary process. A strategic environmental register to that eVect and we are pursuing that. All the assessment simply does not apply. It is paragraph TfL letter says is it confirms that that work is still 4496 in the transcript for day 12 and it appears at ongoing. Of course, if it should be the case that the paragraph 22 of my written submissions to Mr regulator and the emergency services are content with Horton, but certainly you have my written the deletion of the shaft, then we will not build a shaft submissions on that point. No one is seeking to avoid which requires the expenditure of public money an environmental impact assessment, it is simply that otherwise. The letter is incorrect in suggesting that SEA is the wrong form of assessment; it is EIA that is there are any new plans. Plans are referred to in the required here and, as you know, subject to arguments 7 about alternatives, that has been done and everyone Association Hearing Submission (SCN—20080508-005 to -008) knows it has been done. Committee Ref: A69, Woodseer and Hanbury Residents’ Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13095. Can I then turn to the assertions of my considered in this report, Alignment A, B and C factually incorrect statement, paragraph one relating eVectively represented the options which we thought to the Heron Tower. Can I be absolutely correct, I did might be available at the time. Option C was ruled refer to the Heron Tower. It is fair to say, that was an out because it did not allow for a station at ill-considered and oV-the-cuV remark made I think Whitechapel, so that was dismissed from the after the fifth appearance of the Woodseer and beginning. Option A is very close to the alignment Hanbury Residents’ Association on 21 March. It is that we finally selected, although it is not exactly the right to say that the statement I made to this same. You can see there that little white space is the Committee—and, indeed, I will back that up in a Hanbury Street site and our tunnels now go on each moment—is correct. Heron Tower was a glint in the side of that site, (indicating) so there has been a slight eye at the time, it was not a specific reason as such. realignment from this very preliminary study. The The more generic reason was that there were a series reasons Option B was not selected were two-fold. of tall buildings with deep-piled basements. The First of all, as Mr Elvin has mentioned, there are a Heron Tower is the current example of it. It was a number of piled buildings around here and in a proposal at the time, but it was the general issue. I moment I will show you another drawing which quite accept that the statement I made to the makes that clearer. The main reason for rejecting it Commons should be corrected and I correct it now, was the diYculty, I would say impossibility of but the statement I made to this Committee, both on providing a station at Whitechapel underneath the Tuesday recalling my statement on I think day 12, Whitechapel Road. When you are building an was factually correct. Underground station of these dimensions, as I have mentioned several times before, you need to have 13096. My Lords, indeed, I propose for the record, if escape stairs and ventilation structures at both ends your Lordships will bear with me, to call Mr of the station. It is much better if you can make those Berryman very briefly just to explain for the record ventilation structures between the tracks because why Alignment B was rejected in 2001. I know your clearly you can ventilate from both tunnels with one Lordships have ruled against it as a question of shaft. There is no way that you can build a station principle, but I think we should have on the record, if underneath a highway. The only example of that your Lordships will bear with me, Mr Berryman which we have got on Crossrail is at Eastbourne simply reiterating the explanation for why it was Terrace with Paddington Station and that can only ruled out. Would your Lordships bear with me on be done because the highways is oVset from the centre that point? line of the station and there are two roads there, as I think you will recall. We could not identify a site for 13097. CHAIRMAN: Yes. a station, whereas at this site here we were able to readily identify sites for shafts at that end of the 13098. MR ELVIN: My Lord, can I call Mr station and this end. Initially we were going to have a Berryman in that case. shaft there but later we identified a suitable site here, realign the station slightly to fit in with that and that is the reason why Option A was selected. Could I MrBerryman, recalled have the other drawing, please. Examined8 byMrElvin

13099. MR ELVIN: This is the plan your Lordships have already seen. Mr Berryman, can I ask you to state in concise terms why Alignment B was ruled out as it was in the 2001 report? 13100. LORD JAMES OF BLACKHEATH: You (Mr Berryman) The first thing I would say very say that there was no way you could build a station briefly about this 2001 report: this was a report which under a highway, but what was the exclusive reason was done before the Crossrail company was set up. It for Crossrail to take that view because surely the represents the transition between the 1992 scheme London Underground has done that in a number of and the scheme which is currently before the House. places? Why could they do it and not you? It was done in February; the report was in May 2001. (Mr Berryman) The London Underground stations: The Deputy Prime Minister gave authority for the the first thing to say is they are on a very diVerent project to proceed, actually it was on my birthday on scale to our stations. The second thing is that the 1 May, so this precedes the authority for the project requirements for ventilation and escape provisions to proceed. The three alignments that were are much more onerous now than they were at the

8 time when most of the Underground was built. The Option, CrossRail Tunnel Alignments between Liverpool two exceptions to that are the Victoria Line and the Street and Bow Triangle (SCN-200805098-009) Jubilee Line. Committee Ref: A28, CrossRail Eastern Portal—Bow Triangle Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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13101. It sounds like tomorrow’s Daily Mail (Mr Berryman) Well, I have never heard a cohesive headline: “Crossrail claim all London Underground argument to that eVect, my Lord. I have heard lots of stations are unsafe”. people say, “Couldn’t you find another place for it?”, (Mr Berryman) I do not think you would find9 any but it is quite a built-up area. As you recall, the very objections from London Underground perhaps with first site visit we had was to that site and it is a the exact wording, but the principle I think would —- question of finding either buildings which are ready If you could put the other drawing up, please. This for demolition which could be used as sites or sites is a larger scale drawing of the area immediately to the which are already open, and that is what we have east of Liverpool Street Station. This building here endeavoured to do with all the stations. (indicating) is the Heron Tower. This building is the site where there is also an application for a 47-storey 13106. So that was the only site, as you saw it, for block which is currently in process and we were aware the station? of both of these schemes at the time. (Mr Berryman) That was the most appropriate site. You can never say that there is only one site because 13102. MR ELVIN: What does the red show? there are always alternatives. (Mr Berryman) Well, the red represents a piled building. This line C, the one that we rejected because 13107. MR ELVIN: If we could just turn to the there was no possibility of a station at Whitechapel, section of the report, we can see in the second that goes right through the Heron Tower. Line B paragraph reference in the middle, “The site is virtually touches the foundations of Heron Tower directly over the westbound tunnel of alignment B. A and, on this alignment, would probably be further site immediately to the south is the subject of impossible to build. The alignment could have been a proposed 50-storey oYce development.10 This is refined a little bit probably to clear that if there had directly over the westbound tunnel of alignment C, been the prospect of a station at Whitechapel, but it but is almost entirely the limit of the land subject to also conflicted with this proposed building here consultation and the safeguarding direction”. What (indicating) and also a number of other buildings in is that a reference to, Mr Berryman? this area, whereas with this alignment which was (Mr Berryman) As I think members of the selected, we are aware of the depth of the piles in this Committee are aware, the Crossrail safeguarding building and they are relatively shallow. There is a car direction was initially introduced in 1992 and what park building here (indicating) which has got deep that required was for local authorities to inform us of foundations, but we can miss that, so, generally any planning applications which were built within the speaking, it was a better alignment in terms of safeguarded area and it gives us or, strictly speaking, underground obstructions. As I said earlier on, the gives the Secretary of State the power to order that main argument was about the Whitechapel Station planning consent is not granted. Sorry, I have and the possibility of building a station at forgotten the correct term now, but the basic idea is Whitechapel which was a mayoral and a Tower that we can object to schemes which are going to Hamlets ambition. obstruct the tunnels in the safeguarded area. Any building that is built outside our safeguarded area we 13103. CHAIRMAN: But there were not the would not have knowledge of, but we would only development opportunities? have knowledge of what is built inside. (Mr Berryman) To the best of my knowledge, my Lord, there are no development opportunities at 13108. Do we know which building is being identified Whitechapel. as subject to a proposal? (Mr Berryman) Yes, on the previous plan that was the dark shaded area and I understand it is this site 13104. MR ELVIN: Can we just put up briefly one here (indicating). I believe that that planning section of the March 2001 report. This is the section application has now been revived and there is now a which Mr Horton referred to on Day 11 or Day 12. possibility that that development will go ahead.

13105. LORD BROOKE OF ALVERTHORPE: 13109. MR ELVIN: My Lords, that was all I wished Before we leave that, do I not recall that some of the to put on the record just to clarify the reason for the residents argued that some were opposed to a rejection of option B back in 2001. I do not know Whitechapel Station, but, if they had a Whitechapel whether there are any questions for Mr Berryman Station, some argued that there was an alternative arising from that. location for it? 10 9 Option CrossRail Tunnel Alignments between Liverpool Street Liverpool Street and Bow Triangle showing deep-piled buildings and Bow Triangle showing deep-piled buildings (TOWHLB- (SCN-200805098-010) Crossrail19—05-003) Ref: P80, CrossRail Eastern Portal—Bow Triangle Crossrail Ref: P80, Crossrail Tunnel Alignments between Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13110. CHAIRMAN: Not, as far as I can see, would like copies of that material, we can make that from us. available.

13111. MR ELVIN: My Lords, can I then deal with 13115. CHAIRMAN: If that is what happened, we the remaining points in the letter. Point 3 deals with will take your word for it. the same points with regard to option B. Point 4 makes the suggestion that, since11 option B was only made available at the hearing on 31 January before 13116. MR ELVIN: I did show some of it to the the Commons Select Committee, it was not available Commons Committee and I recall speciﬁcally doing to Members of Parliament. My Lords, that is that. I think it can be made available to the Clerk simply wrong. Whilst, as I said the other day, it was electronically. not available on second reading, it was made available, and it was known to Members of 13117. CHAIRMAN: Yes, I think it would be better Parliament, on third reading, and I have already if we saw it. referred your Lordships on Tuesday to the Crossrail overview report which included the whole run of correspondence with Mr Carpenter and the 13118. MR ELVIN: I will make sure that it is copied Woodseer and Hanbury Residents’ Association to the Association as well as to your Clerk. My which dealt with matters, including the alternative Lords, that is all I propose to say in response to that alignments. That was laid before the House in time letter. I am sorry for dealing with it in this way, but, for third reading, so, whether or not it was available rather than correspondence after the hearing has to the House at second reading, it was certainly concluded, I thought it was better to deal with the available to the House along with all of Mr matter in open committee. Carpenter’s submissions for third reading, and, as I said, in any event— 13119. CHAIRMAN: Certainly it is.

13112. CHAIRMAN: What about the Select 13120. MR ELVIN: If there are any other matters Committee? arising from that or the Committee require further clariﬁcation, no doubt the Committee will let me 13113. MR ELVIN: It was debated on 31 January know. and, moreover, on the occasion when I made the inaccurate statement which is referred to and which I have now corrected, which is Volume 5 of the Select 13121. MS KHELA: Do I get a right of response to Committee Report, it was Tuesday 20 March 2007, any of these issues? I have a report here which does so that was three months later, and indeed Mr Whale not mention anything about Whitechapel Station. It of 4-5 Grays Inn Square chambers was representing mentions the 50-storey tower. Residents in the Association on that occasion, and Mr Schabas Spitalﬁelds have spent several years arguing on the was called and expressed his views about option B Heron Tower and today we have heard something and the alignments, and I will give your Lordships entirely diVerent, that it is something to do with the the reference. It is volume 5, pages 1998 to 2002, station, yet the Mott MacDonald report in 2002— paragraphs 21105 to 21140, and the association presented, through Mr Schabas, their evidence on 13122. CHAIRMAN: Are you at the moment option B and the alternative alignments, so it is representing the Association? wrong to suggest that the matter was neither before the Commons Select Committee nor before the House. It was on at least 21 March last year and 13123. MS KHELA: Well, I am the agent, so I before the House on third reading. imagine I am.

13114. My Lords, ﬁnally, reference to the 13124. CHAIRMAN: No, I do not think you are. consultation rounds and the foreign language You have got counsel. versions, well, that is not our understanding of the matter. We are happy to provide copies. If the 13125. MS KHELA: No, I do not have counsel Committee so wishes, we will provide specimens of actually. foreign language information provided to the various communities, including in Bengali. If the Committee 11 13126. MR GOODMAN: I am not instructed for Association Hearing Submission (SCN—20080508-011) the WHRA. Committee Ref: A69, Woodseer and Hanbury Residents’ Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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13127. CHAIRMAN: Are you not? The Committee suspended from 2.42pm to 2.45pm

13128. MR GOODMAN: No. 13139. CHAIRMAN: Now, Mr Goodman, we have the evidence of Mr Berryman. Do I understand that 13129. MS KHELA: There is a report here which I you are not representing Woodseer and Hanbury have provided which quite clearly says, Residents’ Association? “Development east of Liverpool Street Station and Bishopsgate, a 50-storey building, constrains the 13140. MR GOODMAN: My Lord, I am sorry if alignment. Three alignments were considered in the that was not clear. I am representing the Mayfair Crossrail Report: alignments A and B with a station residents’ group and the Coalition which does at Whitechapel and alignment C, without a station, include the Woodseer and Hanbury Residents’ running to the south of Whitechapel approximately Association, but I am not aware of the Petition made along Commercial Road. Of these alignments, B and by that Association specifically. C can no longer be considered due to the development east of Liverpool Street Station, 13141. CHAIRMAN: At the moment let’s stay with Aldgate, a 50-storey development. Should the your presentation. development proposal change, then these alignments may become viable options once again”. If the 13142. MR GOODMAN: Your Lordship did invite Committee does want to hear evidence on the piled me to put any points to Mr Berryman and I have a buildings, which is the recent argument presented, handful of those and then we can conclude. they were the Spitalfields Petitioners who mentioned this and I will refer the Committee also to what Matthew Horton said— 13143. CHAIRMAN: I did indeed because I thought you might like to look at the list of undertakings. 13130. CHAIRMAN: Please will you stop. There is no point in your going on with this. We have heard what Mr Elvin said— 13144. MR GOODMAN: Yes. I will ask a few questions in response to the evidence given by Mr Berryman. 13131. MS KHELA: And Matthew Horton says at 3880— Cross-examined byMrGoodman 13132. CHAIRMAN: Please will you stop. 13145. MR GOODMAN: Mr Berryman, on the subject of various undertakings that were given to us 13133. MS KHELA:—that there is a planning this morning, it is correct, is it not, that there are not application which has been withdrawn which has any specific undertakings relating to the Mayfair now been shown as existing. area? (Mr Berryman) Gosh, that is a bit of a trick question. 13134. CHAIRMAN: If you will not stop, I will adjourn the Committee. 13146. MS LIEVEN: I think that is probably a question for me rather than Mr Berryman. We were 13135. MS KHELA: I am not being heard? asked to produce this in respect of Spitalfields and so it deals with Spitalfields specifically. The first section, 13136. CHAIRMAN: No, because I am telling you which is generic assurances, is applicable across the that it does not make any diVerence. We cannot do entire route. A similar table could be drawn up for anything about it. Mayfair. This was asked for in respect of Spitalfields and so it is done in respect of Spitalfields. I think 13137. MS KHELA: We have not been consulted on somewhere in the course of the afternoon you are option B and we were not allowed to comment. I going to be given a note on generic assurances think that is appalling, that we were not allowed to generally. Do you remember you asked for that a comment, so we were totally reliant on the third couple of weeks ago? reading because we were denied the opportunity to be heard. 13147. CHAIRMAN: I did.

13138. CHAIRMAN: This Committee is now 13148. MS LIEVEN: Mr Goodman is not as adjourned for ﬁve minutes. familiar with the background to all of this as I am. Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13149. CHAIRMAN: There will be a number of 13156. CHAIRMAN: But they have already been generic undertakings and also presumably parts of given. I cannot understand why it is they are not the ERM which relate to Mayfair as well as to known. everywhere else. 13157. MR GOODMAN: Those behind me are 13150. MS LIEVEN: All the generic assurances certainly of the view that requests for undertakings relate to everywhere and so by deﬁnition they relate and assurances have been made. It may be a matter to Mayfair. There are some speciﬁc assurances—I am of the clarity of communication, but that is certainly just trying to think what they would be—that relate the view of those behind me, that requests have been to Mayfair. Let us raise one that came up this made at various stages throughout this Bill. I cannot morning, e.g. Hanover Square. I know there is an go any further with it than that. assurance on the record, it was probably to Westminster, that there will be no tree loss in Hanover Square. 13158. CHAIRMAN: What we have been told is there is a list of assurances and undertakings.

13151. CHAIRMAN: Have you been asked by the Society and the Mayfair residents to give 13159. MR GOODMAN: Yes, not to my clients, but undertakings about anything? a list of those that have been given to Westminster and so on.

13152. MS LIEVEN: My Lord, we have had this very long petition raising lots and lots of diVerent 13160. CHAIRMAN: If they had been given they issues, but what we have not had at any of their would have been on the register. The register is open appearances—and there have been a few of them by to inspection by anybody and therefore it was open now—is a schedule being produced before a to inspection by your clients and if they did not Committee saying, “These are the specific assurances inspect it, they did not inspect it. on these issues we want from the Committee”; we have never had that document in that form. The 13161. MR GOODMAN: Yes, that follows. I just concerns that have always been raised are about have a few questions for Mr Berryman. First of all, alternatives and about not building the Bond Street you gave some evidence about the Channel Tunnel. I congestion relief scheme. We have not had it in a wish to ask you about the construction code of form which would be easy to put up and deal with. practice in respect of the Channel Tunnel because as I understand it that code of practice incorporated a 13153. LORD BROOKE OF ALVERTHORPE: So test that the standards adopted must not be there is an opportunity for Mr Goodman and the environmentally worse than those in the residents to request similar treatment to what Environmental Statement, the so-called NEWT test. Spitalfields has had from your good selves? (Mr Berryman) This is a very complex area of law. The person who is most fitted to talk to this matter, on which I think he considers himself a great expert 13154. MS LIEVEN: I am about to go oV and I am sure he is right, is Mr David Elvin who is instructions so everybody around me can scream if very, very knowledgeable on the NEWT principle they are not happy about this! I can see no diYculty and why it is no longer lawful. in us saying that we will produce a table equivalent to the one we gave you this morning on Spitalfields for Mayfair which records all the existing assurances 13162. MS LIEVEN: I do not think Mr Goodman which are specific to the Mayfair area. Can I get a nod is talking about the Channel Tunnel. I think he is from the Department? Good. I am quite happy to talking about the Channel Tunnel Rail Link Act, have that. What we cannot do is give further assured which is a completely diVerent thing. As far as why parliamentary assurances after this Committee closes we have not followed what is known as NEWT but unless it is specifically recommended we do so. In have gone to a more onerous standard is concerned, terms of producing a comparable table, I will say that that is a matter of the technicalities of European we will do that. environmental law which I am not qualified to (Mr Berryman) But not today, my Lord. comment upon, but if the Committee wish to know more then Mr Elvin is here to answer your questions. 13155. LORD BROOKE OF ALVERTHORPE:I assume Mr Goodman is prepared to accept that it 13163. CHAIRMAN: Let us have the question cannot be done today. again now that Mr Elvin has come in. Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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13164. MR GOODMAN: Essentially there are two which is in an agreed form. It has the same eVect as questions and they have both been answered. One is the words written in that paragraph, but, if anything, that NEWT has not been followed in this case and the it is more detailed. other is that it was followed in relation to the CTRL. That is all I was seeking to establish. 13169. If such a settlement deed is entered into in accordance with your policy will you then 13165. LORD BROOKE OF ALVERTHORPE: compensate for heave, as indeed is set out in 8.2? Did I not hear you say it was more onerous? (Mr Berryman) We would compensate for ground movement. Settlement or heave are just diVerent 13166. MS LIEVEN: What we are doing is more terms for ground movement. onerous, yes. 13170. BARONESS FOOKES: One is up and one 13167. MR ELVIN: NEWT is a concept which is down. really has had its day because what it involved doing (Mr Berryman) Indeed, my Lady. It is extremely was looking at the overall environmental impacts and unlikely but possible that we would cause heave, but then saying, “Well, if something broadly consistent certainly if we did that it would be covered by the with that impact happened somewhere else and not in deed. another place you could transfer impact.” Under an environmental impact assessment that really does not work. You have to assess the likely signiﬁcant eVects 13171. MR GOODMAN: So you would of the project in respect of the area where the project compensate for heave? will have eVect. NEWT is not consistent under (Mr Berryman) If we caused any we would, yes. European law nor UK law with the environmental impact assessment. NEWT is not followed because 13172. I have been asked whether you would register we are now carrying out an environmental impact that as an undertaking? assessment which is more onerous. It does not allow (Mr Berryman) I have just said it in evidence. us to shift around and say, “If we don’t have this amount of noise in this location it is all right if we have it in another location”. We have to assess the 13173. MS LIEVEN: My Lord, our policy on likely eVects in each location and then we set our settlement, which includes heave, is set out in an IP parameters and our environmental minimum and in our settlement deed. If there is an issue on that requirements, which are based on a whole package of then Mr Berryman can be cross-examined on that, assessments and mitigation measures across the but we are not going to give undertakings that change whole scheme, rather than just trying to balance one the settlement deed and change the settlement policy impact here with one impact there. It is not as crude at this stage. I want that to be clear. as NEWT, it is much more sophisticated, but it is (Mr Berryman) I just want to make it clear that the more onerous. I would dearly have loved us to be able settlement policy does include damage caused by to do NEWT because it is a lot easier! ground movements whether it is laterally, vertically or horizontally; whichever way it moves, that is all covered. I do not know how I can make it any clearer, 13168. MR GOODMAN: I am not going to cross- my Lord. examine Mr Elvin much as I would enjoy doing that! I would like to ask a couple of questions about the settlement. Do you have12 the two-page document 13174. CHAIRMAN: I understand perfectly. relating to Network Rail in front of you or can that be passed to you? Perhaps we could have that put up 13175. MR GOODMAN: Those behind me are on the screen, please. In relation to 8.2, you were seeking to have it registered as an undertaking. You asked about this by your counsel and the answer you are not willing to give that as an undertaking, are gave was that the same general principles were you? applied by the code of construction to be followed on (Mr Berryman) To the best of my knowledge and the Bill scheme as set out in 8.2 and 8.3. recollection it is already clearly covered in the (Mr Berryman) That is a slight misunderstanding. It settlement policy. I am sorry, my Lord, but I cannot is set out in our settlement policy and, where see the point of giving an undertaking for something appropriate, people who think they may be aVected we have already committed to. by settlement can enter into a settlement deed with us,

12 Practice—Construction of Airdrie Bathgate Railway and linked 13176. So the only reason that it will not be given is improvements (SCN-20080508-012) because you are satisﬁed it is already committed to? Crossrail Ref: P80, Network Rail—Code of Construction Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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(Mr Berryman) Yes. 13185. You accept you studied it to some extent, but I think the diVerence between us is essentially down 13177. You talked about the Cavendish Square to the meaning of the word “main”, is it not? The alternative and you told us a number of reasons why definition is a main alternative and you say it was not you considered it to be inferior. You said there were a main alternative because in your view you did not no environmental advantages, is that right? get beyond a certain stage in the development of the (Mr Berryman) That is right. proposal, is that right? (Mr Berryman) It was not a main alternative because 13178. There are long corridors on the interchange, it it did not do very much diVerent from what the main is 100 metres from Oxford Street— proposal did and it did it worse. (Mr Berryman) An additional 100 metres from Oxford Street. 13186. CHAIRMAN: Mr Goodman, we have ruled on main alternatives. 13179. More pedestrian traYc? (Mr Berryman) No. I said it is further away from the 13187. MR GOODMAN:13 I shall ask no further desired line of where the pedestrians want to go to. I questions on that, my Lord. The issue of the used the word pedestrian traYc, you are right, but I Complaints Commissioner is referred to in did not say it was more, I said it was further away Information Paper F5. Is this what you were from the desired line. referring to earlier when you were giving evidence about the way in which complaints can be made? 13180. You said something about the issue of the (Mr Berryman) Yes, that is right. station on Post OYce land, is that right? (Mr Berryman) Did I? 13188. It is right, is it not, that the Complaints Commissioner has no power to deal with 13181. You set out a number of reasons. compensation, settlement or conditions issues? That (Mr Berryman) I do not think I said anything about is what it says in F5. a station on Post OYce land. I thought it was Mr (Mr Berryman) Do you mean financial Schabas who referred to the Post OYce railway. It compensation? was not me. 13189. Yes. 13182. You set out a number of reasons why it was (Mr Berryman) That would be dealt with by other considered an inferior alternative. Where can we look matters, either by the Lands Tribunal or the courts. to find those reasons? (Mr Berryman) There is not a document which sets 13190. It says here all settlement issues or all those out in the form of the GOMMS criteria which conditions. we used later in the project. That was at a fairly early (Mr Berryman) He would not be responsible for stage in the development of the scheme, it was before carrying out conditions surveys, but if we had not we were using that formal method of appraisal, so carried out conditions surveys properly then he there is not actually an appraisal document. It is all would have the power to rule that we should do so. It set out in workshops and things of that sort. would not be for him to carry out conditions surveys, no. 13183. Are there any records of those workshops that we can look at for those reasons why it was 13191. Let us suppose my clients do have a problem: discarded? there is an intolerable noise and they cannot take an (Mr Berryman) There may be. I could not tell you for action for nuisance because it has been suspended sure whether there are or not. If there are they will be under clause 21 and so they phone the helpline. What in our archives. then happens at the other end of the helpline? (Mr Berryman) The helpline will either give an 13184. In terms of my ability to find documents explanation for why the noise is occurring or how which evidence what you have said today, is there long it is going to continue or promise to look into it. nothing you can point to which shows that That will be taken forward in the normal way, as it reasoning? would in any situation like that in the middle of the (Mr Berryman) I feel bound to say that this proposal night, by our own site staV and the contractor’s site did not really get past first base. All we did was look staV to attempt to come to a resolution on the matter. at the engineering aspect of it and then we decided it With the kind of thing you are talking about actually was not a principal alternative. No, you will not find 13 very much about it. It was rejected early on. (LINEWD-IPF5-002) Crossrail Information Paper F5—Complaints Commissioner Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners happening in the middle of the night you are not 13197. What the Complaints Commissioner going to resort to the courts then; you have got to information document says is the Complaints deal with the people on-site. That would be the ﬁrst Commissioner’s role will not cover the following: stage. If it was persistent and there was no settlement “Planning Conditions: Where a complainant I would say that the householder would have two disagrees with the determination of conditions the alternatives, both of which could be pursued Complaints Commissioner may be called to mediate simultaneously. He could contact the Complaints on matters of compliance but be able to do no more Commissioner and he could also contact his local than make recommendations to the nominated authority. undertaker and their contractor”. (Mr Berryman) Yes. 13192. So we have this ongoing persistent noise causing nuisance and the helpline cannot take any 13198. So in that respect he has no powers to require action, can it, to help prevent that from occurring if anything to happen. the undertaker is insistent on it? (Mr Berryman) He has no executive power but he (Mr Berryman) The helpline is a telephone line which will have the power of the need to comply with the would allow people to register the fact that there is a requirements for the safe and proper execution of the problem because if we did not have a helpline people projects. would not know where to go to or how to register that something was the matter. 13199. In circumstances where a nuisance is persisting, what compulsion is there available to 13193. It does not perform the function of actually someone who is suVering a noise nuisance? compelling the cessation of the nuisance, does it? (Mr Berryman) The compulsion will be through the (Mr Berryman) No, of course not. It is a helpline to local authority. act as a channel of communication between members of the public and the project. The staV who man the 13200. And if the local authority do not act, as the helpline would not have authority over how the residents are concerned about, where do they go works are being done; that is a matter for the resident then? engineer and the site agent on the site. If the member (Mr Berryman) They do not. of the public cannot get satisfaction from them he would complain to the Complaints Commissioner or the local authority. 13201. So they are wholly reliant on the local authority? 13194. The Complaints Commissioner, as we know, (Mr Berryman) They are reliant on the local also has no powers of compulsion. authority, yes. (Mr Berryman) The Complaints Commissioner does have some powers of direction. 13202. MR GOODMAN: Thank you.

13195. He does not. He has no power of compulsion 13203. BARONESS FOOKES: Surely, there would to prevent the noise from continuing, does he? also be recourse always to the local Member of (Mr Berryman) No, but the local authority does Parliament? have, does it not? (Mr Berryman) Of course, my Lady.

13196. So the Complaints Commissioner is of no use 13204. That would be another route. if compulsion is necessary. (Mr Berryman) That would be another route, but (Mr Berryman) As I said earlier on, the Complaints what I think the Petitioner is asking about is court Commissioner is in the position of a kind of action. Ombudsman, to actually hear what the complaint is and ensure that the necessary action is taken by the nominated undertaker. He does not have the power 13205. BARONESS FOOKES: I see. to walk on to the site and stop work if that is what you mean, but he does have the power to raise the 13206. MR GOODMAN: Again, the local Member matter at the appropriate level within the nominated of Parliament also would not have any powers to undertaker up to and including the Chairman, and compel any cessation. make sure it is dealt with in that way. I do not think (Mr Berryman) Perhaps I live in a slightly diVerent it is any diVerent from any other similar kind of world. None of these people actually have power to organisation. compel, except the local authority. Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13207. CHAIRMAN: It is influence, it is about. to be extensive work and permanent infrastructure at (Mr Berryman) It is influence. Exactly, and that Newman Street, which I believe is a Post OYce applies equally well to the Complaints sorting oYce? Commissioner, to the Member of Parliament, to (Mr Berryman) It certainly is, but I do not recall other bodies, except for the local authority, who do mentioning that in evidence. have the executive power to cause action to be taken formally, directly. 13217. I think you did this morning actually, yes. Is it right to say that when we proposed a temporary 13208. MR GOODMAN: Thank you. Those are my work site on some Post OYce land at Newman Street, questions. the Post OYce were a little unhappy about the suggestion? 13209. LORD BROOKE OF ALVERTHORPE: (Mr Berryman) That is a fairly mild under- You could also go to the police, can you not? statement, yes. (Mr Berryman) You could. That would depend on the section 61. 13218. Would the Post OYce have been enthusiastic 13210. As we are frequently woken up at four o’clock about permanent infrastructure on their land at in the morning with air bombs going oV. There is law Newman Street? and everything to prevent it. (Mr Berryman) No. (Mr Berryman) With what going oV, my Lord? 15 13219. Compensation: just a final area I want to 13211. Air bombs. touch on, Mr Berryman. Compensation and the (Mr Berryman) Really? Complaints Commissioner. Can we just put up C4. If there is a major property claim, that would go 13212. Very big fireworks, yes. through the normal compensation procedure and (Mr Berryman) Good Lord! end up in the Lands Tribunal. Is that right? (Mr Berryman) That is correct, yes. That is what I 13213. If you live in a place like Brighton . . . was getting at before. (Mr Berryman) In Brighton? Of course. A most agreeable place to live, I am sure. Re-examined by MS LIEVEN 13220. If there is a small claim—and I think a small claim is defined as less than £5,000 in paragraph 3.1— 13214. MS LIEVEN: Heave, Mr Berryman—is paragraph 2.6, the member of the public who wants heave what Professor Mair described as, I think, to make a small claim because cracks have appeared “hogging”? and they need to have their house repainted or (Mr Berryman) Not exactly, but it has the same eVect whatever the small claim is, I think the system is they as hogging, yes. go to the Small Claims Administrator but then can 14 the Small Claims Administrator refer the matter to the Complaints Commissioner, paragraph 2.6? 13215. We just put up a section from D12, the (Mr Berryman) Yes. settlement policy, paragraph 6. Just read the opening words of 6.1: “The Promoter will require the nominated undertaker to reimburse property owners 13221. I think what is clear from 2.6 is that there is for the reasonable costs they incur in remedying then a process of arbitration. material physical damage arising from ground (Mr Berryman) Yes. settlement caused by the authorised works” and then there are various caveats. So far as “material physical 13222. So just split our claims into two: if you have a damage arising from ground settlement” is small claim and you are unhappy about how concerned, would that include what Mr Goodman Crossrail are working, the nominated undertaker calls heave? working, you can end up in front of arbitration. Is (Mr Berryman) It would, yes.. that right? (Mr Berryman) Yes. 13216. We may all be flagging a little on the last day, Mr Berryman. Your complete mystification about the Post OYce land: is it correct that under the 13223. And if you have a big claim, you can end up Wigmore Street alignment there would have needed in front of the Lands Tribunal.

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(Mr Berryman) Correct. meetings and whatever. In my submission, it is wholly appropriate and completely in accordance 13224. Thank you very much. Thank you, Mr with EU law that the primary route of involving Berryman. local residents from here on to the end of Crossrail (Mr Berryman) I wonder if I could just correct is through the democratically elected bodies of their something I said earlier today to Lord James, when local authority, for two reasons. One is because they I suggested that LUL stations might not be safe. are democratically elected to represent all the people What I intended to say is they do not comply with in the area. Secondly, because, as Mr Berryman current safety standards. In other words, they are said, they have the technical expertise, they have the safe but they do not comply with modern safety noise experts, or they have access to the noise standards. experts, to the traYc experts, to all the gamut of professional expertise that is needed on issues such 13225. LORD JAMES OF BLACKHEATH: Yes, as this. I see. I have been going through in my mind all the places where I could think of stations under 13233. Under both Schedule 7 in terms of further thoroughfares, and it is a very long list. above-ground works that have to have gone (Mr Berryman) It is, my Lord, but you will not find through the approval process of Schedule 7, but also many of them with ventilation stacks and escape under section 61 of the Control of Pollution Act in stairs at both ends of the station. terms of getting consents for work-site working, lorry routes, matters such as that, the local authority 13226. They are so close to the surface that they has a very extensive series of powers that it can use almost get their ventilation from the surface. on behalf of the local residents. It is up to the local (Mr Berryman) The sub-surface lines are, yes, my authorities in that instance to decide what is the Lord. The District Line and Metropolitan Line. appropriate level of consultation—and it does come back to what I said about Paddington a couple of 13227. MS LIEVEN: Those are all my questions days ago. There are very much horses for courses. for Mr Berryman. There will be some section 60 decisions where it would not be appropriate, useful or a sensible use The witness withdrew of public time and money to consult people, and there will be others where extensive consultation will 13228. CHAIRMAN: Are there any other of the be necessary and appropriate. If the local authority Promoter’s witnesses that you want to cross- gets that fundamentally wrong in terms of what examine, Mr Goodman? consultation it takes forward, then there are legal mechanisms and complaints mechanisms against the 13229. MR GOODMAN: No, my Lord. local authority. But that they should be that first tier is, in my submission, wholly lawful and wholly 13230. CHAIRMAN: Ms Lieven, what is your appropriate. answer to this Petition then? 13234. Even beyond that, if the residents are 13231. MS LIEVEN: My Lords, I will do my best unhappy and they feel the local authority is not fully to draw the points together. I think the first point serving their interests, they have other recourses. is one on consultation and information. I hope that They can complain to the Commissioner. I think the Committee understands through the Baroness Fookes put her finger on it earlier. information it has been given over the last few weeks Commissioners’ powers are not generally executive. that we do not view consultation as being a privilege The whole rationale of Ombudsmen, thinking back and that we are very committed to a regime of to the 1970s and when they were introduced, was consultation and information. precisely that they can have an informal role in brokering compromise and discussion behind the 13232. So far as the process going forward after scenes, and that has worked very well on the Royal Assent is concerned—we did cover this in Channel Tunnel Rail Link, and we have every quite a lot of detail yesterday and the day before reason to believe it would work very well here. with Westbourne Park and PRACT—in my submission, the fundamental problem with 13235. If local residents still are not happy and they everything that Mr Goodman is saying is that he is want some kind of bigger fist, they can go to their trying to cut out the local authority and say each local MPs and use the political pressure that way. local resident should be able to go straight to CLRL If the local authority is being so hopeless, and really individually and be able to go to any number of I think the Committee can be very confident that Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners that would not be the case on this route given the 24 hours a day, three years on the trot, outside degree of scrutiny that Westminster and Tower somebody’s house, you can be absolutely certain Hamlets have put us under so far, but just say it did that one of the other local authorities would have happen, then ultimately the residents can go to court picked it up. and take action against their local authority and get injunctive relief. If a noise is being caused which is 13238. Please do not go away and think that this is wholly unreasonable and Crossrail is ignoring the imposing something on people which there has been Commissioner and ignoring everybody, then there no opportunity to balance, to think about, to are mechanisms there. So it is quite wrong to say discuss. It just is not like that. Even in terms of that the residents are powerless. Then of course individual residents, again I have said in opening on there is also the phone helpline, so if somebody is this Petition, and I am going to reiterate, they have drilling outside your door at three o’clock in the had an enormous amount of information and the morning for the fifth consecutive day, you can ring Code of Construction Practice goes on for pages up Crossrail 24 hours a day and actually speak to and pages in the information paper, it is all there on somebody and see that something happens. That is the net. If the residents had some unhappiness about the process that was adopted on the Channel Tunnel some paragraph, it has been on the net for years, Rail Link, where a massive station was built close and the final version has been on the net for months, to local residents and, as Mr Berryman has told you, so they could have come and said, “We do not like it worked well. this.” It is not the case that they have not had the information. 13236. In my submission, we have a whole mechanism there that is wholly appropriate. It is 13239. Can I then turn specifically to clause 21 and also the case—and I think it is important right at the deletion of it. We have not heard very much the end that we acknowledge this and that it is from Mr Goodman about that so far, but the balanced—that we cannot build a £16 billion project reasons I gave in opening are that we need clause 21 through central London without causing a bit of because otherwise the nominated undertaker cannot dust, noise and disturbance to local residents and know what work it can carry out without the danger occupiers. It is an impossible task. It comes back to of a member of the public going to the magistrates’ Lord Brooke’s point, which is that the local court—and the magistrates’ court might take a authorities are there to balance up those interests, diVerence view from the local authority—so it leaves so they can say, “All right, there will be some noise us at risk, if we do not have that clause. In my at night. Is that a reasonable level of noise given that submission, the critical point is that that clause was there is a massive public benefit in this scheme?” accepted in the Channel Tunnel Rail Act and it has Somebody has to do that because, to be frank, the been accepted in an even stronger form in a number person who lives next to the noise is not really going of TWAs. So, in my submission, it is a perfectly to be the person to do that balance. That is again sensible and reasonable clause and it does not where the local authority comes in, and in my remove the local authority’s powers, so if we are submission, that is a wholly acceptable, wholly acting in breach of the section 60 agreement, the appropriate mechanism. local authority can step in, and I revert back to all the points I made about local authorities. 13237. It is important to emphasise, because as Mr Goodman says, “We don’t know what is in these 13240. Environmental protection generally, I think environmental minimum requirements. We don’t I have dealt with. As far as having some third party know whether they’re suYcient and whether they agency or advocacy body, I have made my meet EU standards” or whatever. Every single one submissions on the role of the local authority. In my of these requirements has been agreed with the local submission, to have some other body—which Mr authorities. They have not just been agreed with the Goodman has not explained or called any evidence individual lead authorities. The lead authorities as to how it would actually work—but to have some have gone back to all the other authorities and other body which might take a diVerent view so we agreed with them. These are not standards we have end up with arguments up and down the route as plucked out of the air and imposed on people. These to precisely what standards are being applied is are standards that have been beaten out through simply a recipe for chaos. Again, coming back to meetings over the last three years, and even if the point Lord Brooke made earlier, this is a scheme Westminster had a completely oV day, which I can that is of massive public benefit, that is what both promise you, having met Mr King on a number of Houses have now said, and to potentially delay it occasions is unlikely to be the case, and failed to and escalate the cost through some completely spot that we were proposing to drill unbearably for unnecessary process, which in reality is unlikely to Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1072 committee on the crossrail bill: evidence

8 May 2008 The Petitions of the Residents’ Society of Mayfair and St James’s and the Crossrail Coalition of Residents and Petitioners give any substantive benefit and could cause what has been a very happy Committee generally, extremely great delays and increased cost, is not a ask you to treat Mr Schabas’s evidence with sensible way forward. considerable caution. He told the Committee that there were major benefits to Cavendish Square over 13241. Then the final issue I need to deal with is Hanover Square. Point one on trees: he had not alternatives. The way Mr Goodman is trying to get bothered to find out that we are not taking down in alternatives today is to say he is not promoting an any trees in Hanover Square. He told the alternative route, but we should do a Supplementary Committee that there were no trees in Cavendish Environmental Statement to assess an alternative Square. Anybody who has sat in the John Lewis route in case it is a better alternative route. In my cafe as often as I have knows that there is a large submission, the only point of doing a number of very big plane trees in Cavendish Square. Supplementary Environmental Statement on an He said that the historic buildings were much alternative route is if you think the need from greater in Hanover Square than Cavendish Square. Crossrail could be better met by the alternative Anybody who has visited the place knows that is not route. You do not do alternatives analysis to do a true. Cavendish Square is surrounded by Georgian comparative exercise on harm; you do an listed buildings. alternatives analysis in order to see whether there is a better way of meeting the need. The evidence of 13246. CHAIRMAN: And one side of Wigmore Mr Berryman is absolutely clear, there are no Street is also flanked by probably listed buildings. advantages to the Wigmore Street/Cavendish Square alignment; there are major disadvantages, so 13247. MS LIEVEN: We have not even gone there, it was not a main alternative and there is absolutely my Lord. Anybody who has been to Wigmore no justification now for going back and doing Street—we have not done an analysis of how many another SES which can tell you nothing and would residential properties there are—but Wigmore Street not have any consequence in terms of giving better is a very historic area. I would hate to think what protection to the people of Mayfair. the noise impact on the Wigmore Hall would be. We would have worksites in Portman Square, in 13242. There is also the very important point that Connaught Square—just imagine the problems with to now require another SES would involve major that—it is endless. The suggestion that just because delay to the project, again coming back to Lord you take it out of Mayfair you have got an Brooke’s point. In fact, it probably would cause environmental benefit is, in my submission, very major delay because the way we have extremely one-sided. approached SESs so far is that they have required an additional provision in the Bill and that would 13248. So my Lords, no substantive benefit, no require us to go back to the House of Commons, so substantive justification, major delay; in my in any event it is a delay and, if we were to follow submission, no possible reason to go down that that route again, it is very major delay. course. 13243. CHAIRMAN: Ms Lieven, it would also 13249. Thank you very much, my Lords. Unless require major consultation with the people on the there are any questions I can deal with now on line, would it not? this issue. 13244. MS LIEVEN: Absolutely, that is the first stage of the delay. We would have to do the thing 13250. CHAIRMAN: Thank you, Ms Lieven. A and that in itself is a big job because you have to final word for you, Mr Goodman. Have you consult people, you have to carry out the discovered who you are representing? environmental assessment, it takes months and months and months and, particularly if you are 13251. MR GOODMAN: My Lord, I think I have going to do it for the whole of an alternative route, been quite clear from the very outset, it is on the it is a major exercise but, in my submission, the heading of the written submissions I gave to you evidence is absolutely clear; it is not justified. first thing this morning. If it needs clarification, I am representing the Residents’ Society of Mayfair 13245. If—and I do not suppose for a moment that and St James and the Crossrail Coalition of the Committee is going to get to this stage—you Residents and Petitioners. have to weigh up the evidence of Mr Berryman on this subject and the evidence of Mr Schabas, then I 13252. CHAIRMAN: Who are the members of the would, and I hesitate to say this right at the end of Coalition? Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13253. MR GOODMAN: Which residents’ groups, 13265. MR GOODMAN: The proposal I was was that the specific question? making was a very simple one, along the lines of a citizens’ advice bureau with people who have 13254. CHAIRMAN: Yes. expertise and that then enables people to put their case eVectively. 13255. MR GOODMAN: My apologies. Within the Coalition are the Mayfair Society, the WHRA, 13266. CHAIRMAN: But to whom? Spitalfields— 13267. MR GOODMAN: The mechanisms would 13256. CHAIRMAN: I thought it was the WHRA. have to remain the same. I am not proposing, save in respect of section 20 where I am proposing it, that 13257. MR GOODMAN: The Hyde Park Group. actions through the courts be legitimised, but all the mechanisms described by the Promoter, first of all, 13258. CHAIRMAN: This includes the WHRA, you have to go through the helpline, you have to does it not? chase your MP, you have to chase your local authority, that whole process is one that is very 13259. MR GOODMAN: It does include it. diYcult for many people, and it is one that there is no reason to doubt that assistance from 13260. CHAIRMAN: Yes, so you are professionals would not be welcome. That is a representing them. modest proposal, one that does not go against the principle of this Bill or endanger it in any way. 13261. MR GOODMAN: Well, it is a separate There is no prospect of it being held up. It is simply organisation. The Coalition is an umbrella to provide that reassurance to people that if they are organisation which works to co-ordinate the eVorts finding diYculty getting any response to problems of the diVerent residents’ groups. I think they tend that may arise from this, that they have somewhere to divide up the issues by having that co-ordinated to turn to and someone with expertise who can approach. stand up for them. That was the extent of the suggestion. 13262. CHAIRMAN: All right. 13268. My Lords, the suggestion was made that 13263. MR GOODMAN: Very briefly to recap, the perhaps the helpline could be expanded as a service. points raised are set out in my written submissions That as a compromise is certainly something that I this morning. The response given by the Promoter would welcome if it does result in the giving of is that the local authority will look after the interests expert advocacy or assistance to those who need it of local residents and there is no need to worry, but beyond simply oVering a point of contact with the that falls into the very trap, or the very approach, Promoter when drilling things outside someone’s which, in my submissions this morning I was house in the middle of the night. seeking to urge upon your Lordships was an outdated way of seeing things, that there are 13269. As to the Supplementary Environmental independent interests of those persons aVected and Statement, I have set out, and the opinion I have that modern environmental legislation points submitted to you has set out quite clearly our views towards the need for those persons to be represented on the law on that matter. As to whether this is a not only by paternalistic authorities but in their own main alternative, the evidence given essentially was right, and not only does this Bill make no provision that the Wigmore Street option was studied by the for that, nor is there any undertaking provided for developer, it was an alternative considered but, in that, but, in fact, the constitutional safeguards we their view, it did not constitute a main alternative, have by way of actions through the courts are so essentially the point comes down to a diVerence removed by this Bill, by clause 21, and so private of view as to how one interprets that term, whether actions for nuisance are actually taken away, so the it is subjectively interpreted by a developer or is local residents are in fact put in a worse position capable of an objective interpretation. In my than they would be in respect of construction submission, it is not one to be determined wholly by projects other than those under this Bill. the views of the developer.

13264. CHAIRMAN: If you had your parallel 13270. I have made clear my clients’ intentions at organisation with experts and all the rest of it which the foot of my submissions that they do consider enabled representations to be made, to whom would that there are points of considerable importance in the representations actually be made? environmental law, both under the EIA directive Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Mr Leo Walters and under the strategic environmental assessment 13273. MR GOODMAN: I am grateful. directive, and I do not go further than that, simply to make clear that that is something they may wish 13274. CHAIRMAN: I think the arrangement is to pursue. that Mr Walters is going to go next and after that I believe that Ms Khela wants to put a few questions to Mr Berryman; is that right? Has she gone away 13271. My Lords, in that context, and in that again? strength of feeling, the modest proposals I have put forward to provide some way by which the fears and 13275. MR MOULD: My Lord, if she wishes to apprehensions of the people that live in these areas do so, we are content that Mr Berryman will seek can be met and moderated is, in my submission, to assist her in relation to a very few questions that something that will be sensible and appropriate for we expect she may want to raise. the future smooth running of this project, not something that is there to disrupt it, but something 13276. LORD BROOKE OF ALVERTHORPE: that is there to alleviate the concerns and oVset the An encore. possibility that people feel they have no alternative but to pursue this further through the courts. It is 13277. CHAIRMAN: A brief encore I hope. something which will provide a sense of empowerment and, in my submission, is something 13278. MR MOULD: Then no doubt the “fat to be welcomed for the beneﬁt both of the residents lady” will have her chance. and of the Crossrail project as a whole. I am very grateful for your patience today in hearing me. 13279. LORD SNAPE: You are on dangerous Those are my submissions. ground now!

13272. CHAIRMAN: We are very grateful to you, 13280. MR MOULD: It is a traditional expression Mr Goodman, because you have crystallised a lot I believe. of things that have been causing major problems and you have put it all very clearly and very 13281. LORD SNAPE: It does not make it any succinctly, and we are much indebted to you in fact. more acceptable, I am afraid.

The following Petition against the Bill was read:

The Petition of Mr Leo Walters

MrLeoWalters appeared in person

13282. MR MOULD:16 I know. But having said that, that raised by Mr Goodman during the course of may I just introduce Mr Walter’s Petition to you. today, it is perhaps that which arises under What I have done is I have put up a plan of the paragraph 5(c) of his admirably succinct Petition, Mayfair area. Mr Walters is the long leaseholder of and it is to eVect that he sees scope for a multiplicity a flat at number 6 Dunraven Street. That is this street of claims in the courts for compensation for negligent here that I am just showing you on the plan on the performance of the Crossrail works as a result of an screen (indicating). Mr Waters, I believe, is just above alleged lack of detail as to the environmental controls the Crossrail running tunnels in Dunraven Street. I that are going to be deployed by the nominated advisedly do not provide you with any detailed undertaker at the behest of the Promoter as and when information about Mr Walter’s property at this stage the scheme comes to be built. because, as you will have seen from reading his Petition, his case is really not in any detail about the eVect of the project upon his property per se. His 13283. My Lords, for reasons that have been amply case, as I understand it, is very much to lend his explained by Mr Berryman and by Ms Lieven during support to the submissions that you have heard ably the course of today, and indeed we have sought to presented by Mr Goodman in support of the deal with it on other occasions, we do not accept the Residents’ Society of Mayfair and in particular, in his premise. We say that the regime for the control of Petition, he focuses on what he sees to be the environmental impacts, which we have explained to advantages of alternative routes that your Lordships you, is one which is ample to provide an indication at have been told about during the course of today’s this stage as to the way in which the project will be proceedings. If there is a point that he takes beyond managed and that in itself, we confidently say, should 16 limit very much the need for those aVected by the (WESTCC-35—04-053) scheme to have to resort to claims for financial Crossrail Ref: P80, Park Lane Shaft—Crossrail proposals Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Mr Leo Walters compensation in relation to the impacts of the works. to go the old way?” Do you know, those two bodies, To put it simply, we, as you know, are very much Eurostar and Crossrail, had not even spoken. So here addicted to the concept of prevention rather than you have an enormous project, £17 billion now, and I financial cure. My Lord, having set the scene in that am sure, having dealt with a lot of vast public projects way, I think it is probably sensible if I hand over to myself, this is going to be £30 or £40 or maybe £50 Mr Walters to explain his concerns. billion in the end, how can we go ahead in this tragic mistake of building it in the wrong place because it is 13284. CHAIRMAN: Mr Walters? 21 years out-of-date. They have kept to the same route. I have got nothing against the Crossrail 13285. MR WALTERS: My Lord Chairman and people—they are perfectly polite and all the rest of members of the Committee, I have lived in Mayfair a it—but they just pretended to look at our alternative long time, about 40 years altogether, and I was route. They have not really looked at it and we are Chairman of the Residents’ Association of Mayfair. just a small organisation who have employed people This is an enormous project, as you know sir, £16 or like Mr Winbourne and so on to help us with a few £17 billion, and it has got to be right and it has really thousand quid literally, 25,000 or 30,000 quid, and got to be put in the right place. We have been through we have been up against this mammoth organisation. all this before. It is a real David and Goliath because And they have not looked at the alternative. I have you just have a few residents of Mayfair who are gone into it myself. I have tried to find out from the fighting a Crossrail team who have used about £400 diVerent people I know, and they have not looked at or £500 million of public money to devise this the alternative. I know you are constrained, it is a scheme—and we are not against Crossrail, we want great shame you are, but, there you are: if you want the west-east route across London—but we have a massive project like this to go ahead in the wrong been through all this before, sir, as you well know. In place then so be it. 1994 the Opposed Bill Committee of the House of Commons, an all-party Committee, having heard all 13287. The only other thing I would like to say, sir, is the evidence, 34 days of it altogether, rejected this this: talking about the local authority, I know outright, and decided it was the wrong route, and of Westminster pretty well, although obviously I am not course it was devised in 1987 so it is 21 years out-of- an authority myself, but when this planning date. This is my main contention. I know you are application went originally for Crossrail to the constrained. It seems so unfair to us that if it had been Westminster Planning Committee, with enormous a public local inquiry we could have put the objections from all over Mayfair, I went to the alternative routes in, but the Bill was drafted in such meeting and it was not even discussed whether the a way that we cannot and coming to the House of route was the right one or the wrong one; it was not Lords I had hoped, because I was told that in the even discussed. I was actually present. It was just House of Commons the Committee there, the passed in a vote and that was the end of it, so can you Labour members at least, were put on the Committee imagine how much confidence we have in a local simply because they did not vote the right way in the authority to look after somebody’s wall that has Education Bill and that is the sort of thing we are up cracked, you have got to phone up the helpline—and against as members of the public, but I hope even we all know how helpless most helplines are and all though you have been half destroyed by the present that. You can imagine if you, sir, yourself were living Government at least we will have independence and where we live in Mayfair how you would feel. I am fairness here. not an expert by any means but these tunnels are eight metres in width and all that noise and all the rest 13286. I am also at the moment, my Lord Chairman, of it. I am not arguing about that; I am just saying this the Mayor of Windsor and Maidenhead. The ginormous project is being built in the wrong place Eurostar people came down to Windsor the other day right through the heart of the Mayfair Conservation to address us about Eurostar, which opened up at St Area, which is right at the centre of London, and you Pancras and King’s Cross in November last year. I can imagine the chaos. was astounded when I asked the Eurostar representative there, “Have you spoken to Crossrail?” because here you have, what is the 13288. Sir, you have probably had enough of alternative the Society and the Mayfair residents listening to all this evidence but there is one person, route to go to King’s Cross, a real traYc hub, to the Sir Peter Hall, who summed it up, and he is the north of England, the cross-Channel Tunnel, to President of the Town and Country Planning everything you can think of. Just as an example, the Association and he said this: “The one evident fact headmaster of Eton said, “Well, how are we going to which increasingly stares any dispassionate observer get from Eton to Crossrail? Can’t we go to St in the face is that the oYcial Crossrail scheme makes Pancras; it is the obvious hub route? Have we still got absolutely no operational or economic sense at all. It Processed: 14-08-2008 20:08:05 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Woodseer and Hanbury Residents Association urgently needs saving from itself.” That is all I wish 13296. CHAIRMAN: Yes, of course you can. to say and thank you for listening to us, sir. 13297. MR WALTERS: All I want to say is this: all 13289. CHAIRMAN: Thank you very much, Mr the Crossrail present route does is relieve congestion Walters. Do you want to say anything, Mr Mould? on the Central Line. What we want and what we should be having is a strategic route connecting the Channel Tunnel, as I have said, the north of England, 13290. MR MOULD: Only this, that members of Eurostar, all that. All this does is relieve the Central this Committee will recall, I think, in opening the Line. That is all it really does from the west to Canary Select Committee proceedings all those weeks ago, Wharf and the City. we referred to the important work done at the behest of the then Deputy Prime Minister in examining 13298. CHAIRMAN: I am afraid, Mr Walters, there options for a new rail route across London which you is nothing this Committee can do about that. We are know is the London East-West Study, and it was the very much obliged to you, not least for your brevity. results of that study and the consideration of Ms Khela, I think would like to ask a few questions alternative routes, including those that have been very brieﬂy. touched upon by Mr Walters in his submissions, that were the principal driver for the hybrid Bill scheme and the scheme which you have before you in the 13299. MR ELVIN: I will recall Mr Berryman in Bill today. that case.

MrKeithBerryman, recalled 13291. The transport planning advantages which will Cross-examined byMrKhela derive from the construction of the railway that is set out in the Bill have been explained to you. They have enjoyed cross-party support, both in the House in the 13300. MS KHELA: Are you ready, Mr Berryman, other place and indeed at second reading in this to answer some questions? House –precisely, as I recall, because of the (Mr Berryman) Sorry? substantial advantages that will flow to Londoners and others who use the public transport network 13301. Are you ready to answer some questions? through the centre of London, in particular the (Mr Berryman) Yes. Central Line—cross-party support and a recognition of the benefits that will flow from the scheme which 13302. You will recall on 12 March 2008 when Mr is set out in the Bill before this House in the event Horton said two of these—and I am referring to this that, as we expect, that Bill becomes law later on map which is Crossrail Eastern Portal Bow Triangle this year. Option. (Mr Berryman) Yes, that is a map that I just put up a few moments ago myself. 13292. My Lord, it is the principle of seeking those advantages for the public that lies at the heart of this project. We have examined the alternative that Mr 13303. Can you confirm when this map was supplied Walters looked at. We have explained, and it is on to residents in Spitalfields? record in information paper A1 and in other (Mr Berryman) I do not know the answer to that documents including the Environmental Statement, oVhand. It was fairly late in the piece. I ought to as to the comparative disadvantages of that explain the reason for that— alternative, and it is one of the reasons why the route is proposed as set out in the Bill before you. 13304. I did not ask you the reason for it. (Mr Berryman) Oh, you did not ask for the reason. 13293. My Lord, if I go on any further I shall begin very greatly to repeat matters that this Committee is 13305. I am asking you when it was supplied? very well aware of and, unless there is anything else I (Mr Berryman) I do not know the date; it was fairly can assist you with in relation to this Petition, I shall late in the process. stop there. 13306. MR ELVIN: It was January 2007. 13294. CHAIRMAN: Thank you, Mr Mould. 13307. MS KHELA: Was it consulted upon as part of the route? 13295. MR WALTERS: Can I just say one more (Mr Berryman) I am sorry, could you repeat the thing, sir? question? Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Woodseer and Hanbury Residents Association

13308. The preferred route consultation that took 13313. MS KHELA: Well he did not appear. place, was this map consulted upon? (Mr Berryman) No, it was not. This had already been 13314. CHAIRMAN: Well maybe not, but he was rejected by the time that took place. not called as a witness. If you wanted him as a witness I have no doubt he would have been available.

13309. Was it consulted upon when the WHRA 13315. MS KHELA: That is a bit of information appeared on 21 of June 2006 at the Commons? that we were not told. We were advised we could only (Mr Berryman) No, it was not consulted on by call witnesses if the Promoter’s Counsel had called anybody except internally within the project. him and then he could be examined. He has only appeared today, hence why I had the opportunity to 17 examine him.

13310. I now turn to 12 March 2008, paragraph 13316. CHAIRMAN: You now have him there as a 3880. Two of these, A and B—I am referring to this witness, why do you not ask him the questions you map—will permit an additional Crossrail station at want. Whitechapel and then the next sentence, “No specific design has been developed for the station” and then 13317. MS KHELA: I would just like to make that the next paragraph, “Alignments B and C would pass very clear. I have not got the pile data with me and I below known piled buildings and proposed am very reluctant to ask questions when I do not have developments just east of Bishopsgate. A planning the relevant data with me and advice on that issue. application has recently been submitted, but Had Mr Berryman appeared with Mr Schabas back subsequently withdrawn for a site including Stone in January when we raised this issue initially or, House and Staple Hall. This site is directly over the indeed, on 12 March, this issue could have been dealt westbound tunnel of Alignment B. A further site with very adequately. I am not in a position to do so immediately to the south is subject to a proposed 50- at present. storey oYce development directly over the westbound tunnel of Alignment C. That is almost 13318. CHAIRMAN: If you do not want to ask him entirely outside the limit of land subject to any questions he can withdraw. consultation in the Crossrail safeguarding direct. The Crossrail project has already indicated that it does 18 13319. MS KHELA: No, I have one other issue. I not wish to comment upon this planning application. would like to put the Mott McDonald report Currently this application has been called in. For forward. This was produced in 2002. these reasons neither of these alignments have been considered in any detail. I do not know whether that corresponds to the explanation given orally to the 13320. CHAIRMAN: What is this? Committee, but as I understand it, seven years ago that is why these alignments were at the outset not 13321. MS KHELA: This is the Mott McDonald taken further”. report which I have submitted with my submission. Can you read what it says at 4.2? (Mr Berryman) “Three alignments were considered in the Crossrail report: Alignments A, B with a 13311. At the same hearing, as I have identified, Mr station at Whitechapel and Alignment C without a Horton also questioned whether the Heron Tower station to the south of Whitechapel, approximately conflicted but, Mr Berryman, you chose not to along Commercial Road. Of these Alignments B and appear on that day, did you not? You did not answer C can no longer be considered due to the any questions. You have chosen to appear today development east of Liverpool Street Station at when those people are not present to answer those Aldgate, a 50-storey development. Should the piled questions. Is that correct? You did not choose development proposal change, then these alignments to appear, can you explain why you did not appear? may become viable options once again”.

13322. MS KHELA: That is my point. I have no 13312. CHAIRMAN: Ms Khela, it is not a question further questions. They become viable options, of whether he chooses to appear, it is whether he is which is quite clear, they were viable options. called as a witness. Please do not impugn things Nowhere does it say that there were any piled against him. buildings, nowhere does it mention there was a

17 Whitechapel interchange, all of these points have of Lords Select Committee on the Crossrail Bill on 12 March 18 2008, Para 3880 MacDonald Report, February 2002 (SCN-20080508-014) Uncorrected transcript of oral evidence taken before the House Committee Ref: A69, Para 4.2 Bow Triangle Issues, Mott Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Woodseer and Hanbury Residents Association been raised after the event. Had Mr Berryman 13333. MS KHELA: Matters that Mr Elvin has appeared earlier, Michael Schabas was happy to deal raised about my submission. I only raised that one with that point. That is it. I have no further questions. point; I have several other matters which I would wish to raise that have not been answered and they 13323. MR ELVIN: I would like Mr Berryman to are quite clearly set out. continue by way of re-examination. 13334. MR ELVIN: My Lord, if the Committee are happy, I have no objection to Ms Khela outlining her 13324. CHAIRMAN: Yes, by all means. response to my points. It is probably the simplest way of dealing with matters. Re-examined byMrElvin 13335. CHAIRMAN: I should think so. What are

13325. MR ELVIN: Mr Berryman? we meant19 to be looking at? (Mr Berryman) My Lords, I have already explained the thinking that went into the selection of 13336. MS KHELA: My submission, the letter of alignments in the Whitechapel area. The matters 7 May. which have been raised by the Petitioner relate to consultants’ reports which are produced for us. We 13337. MS KHELA: The first point, I did not just release all this information through the Freedom of mention the Hanbury Street shaft, I mentioned that Information Act. They do not necessarily represent an email had been sent out to all Petitioners along the our considered and final opinion. This is the advice of route saying that there may be a possibility of professional experts who are putting down points dispensing with the need for shafts. I was trying to which need to be considered. They are not intended make it very clear that this undertaking had been to be, nor could they ever be, comprehensive given almost a year ago. I wanted to ascertain what examinations of all the options in detail taking into work had been undertaken by the Promoter in account all the factors. There are a number of very relation to this and I asked a very specific question. If good reasons why Option A was selected. The necessary, I will put that under the Freedom of principal ones are to do with the station of Information Act. We would like to know when full Whitechapel and the diYculty of building a station at revised plans have been submitted to the relevant Whitechapel under Option B. In that report Mott authorities in terms of the shaft alignment so that McDonald were not asked to consider that point. they can adjudicate whether it is possible to have a diVerent shaft arrangement and at what date that 13326. MS KHELA: On that point, can you took place. Previously we were told it was an clarify— extremely challenging situation that they had to deal with. 13327. CHAIRMAN: I thought you had finished your questions. Ms Khela, either you are going to ask 13338. My second point is at some point I wanted to Mr Berryman questions or you are going to say that know if the Chair would make a statement on which you have not got any more. I thought you said the undertakings the Spitalfields community would latter. receive as recommendations because they were dissatisfied with the undertakings that they received in the Commons, in particular that the Promoter 13328. MS KHELA: I did. would be monitoring settlement instead of an independent body and they were further concerned 13329. CHAIRMAN: In that case you can sit down. that the clause material damage is included instead of any damage. We did not see the relevance of using the 13330. MR ELVIN: I have nothing further to ask word “material damage”, so we ask that to be Mr Berryman, unless the Committee has. substituted with “any damage, defect or deterioration “. The witness withdrew 13339. As I understand it, Patricia Jones requested this and nothing came of it, but we would like it on 13331. MS KHELA: I do have other points in my record that if any damage, defect or deterioration submission that I need to deal with that have not been occurs because of that, this is on record that we answered. requested independent monitoring. The area, and I will put this Mott McDonald report back up, 13332. CHAIRMAN: I do not know what you are 19 talking about. Association Hearing Submission (SCN—20080508-005 to -008) Committee Ref: A69, Woodseer and Hanbury Residents’ Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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Spitalfields, they said, in 2002 is identified as being 13351. CHAIRMAN: If somebody raises it, yes. extremely sensitive environmentally. Subsequently, I have never seen that statement ever produced in 13352. MS KHELA: Well, I am raising it. Crossrail reports, so it would seem that some remarkable event has occurred in Spitalfields where it 13353. CHAIRMAN: No, no. I am talking about a is no longer sensitive environmentally. That is all I Member of the House and I do not think you have would like to say on that point. got that far yet! 13340. On my third point, I have stated that there has been an anomaly. Matthew Horton’s point was 13354. MS KHELA: So I have dealt with point 3, heard. The strategic environmental assessment point that we are not satisfied, and we would like that on that I raised was particular as I understand it applies the record, that the least harmful route has been to policies. Now, I am informed by a letter presented selected. We would further like to point out that to me by the WHRA that the Government considers many of these documents were not disclosed and, had the tunnel alignment to be policy and, when this Bill they been disclosed, we would have liked to have been gets Royal Assent, the tunnel alignment will be the consulted and we have not been consulted contrary principle of the Bill and be the main decision that will to 6(2) of the EIA, so neither on the Strategic take place. The decision on this route was taken at the Environmental Assessment nor on the EIA does this safeguarding which was at the time when the strategic Bill actually comply with the requirements to consult environmental assessment applied. This requires the with the public, and third reading with MPs is not least-harmful route to be selected. We do not believe consultation with the public. Consultation with the the least harmful route has been selected either here public was requested by the WHRA, by the or elsewhere on the central section, so, therefore, we Spitalfields Small Business Association and that did believe that point ought to be considered. not occur. Now, dealing with Mr Elvin’s points—

13341. CHAIRMAN: What do you want us to do 13355. CHAIRMAN: Well, Mr Elvin has already about it? answered these.

13342. MS KHELA: Well, as I understand it, after 13356. MS KHELA: Well, I have some issues with having read Matthew Horton’s transcripts, I believe his responses. you suggested that there could be some sort of recommittal. 13357. CHAIRMAN: So you want to cross-examine Mr Elvin? 13343. CHAIRMAN: No, I do not think we have got any powers to do that. 13358. MS KHELA: No, I do not want to cross- examine him, but— 13344. MS KHELA: I have read that that was the case. If that is no longer the case— 13359. CHAIRMAN: Mr Elvin has already dealt 13345. CHAIRMAN: It never was the case. Where with all of these. have you read it? 13360. MS KHELA: Well, I do not think he has 13346. LORD BROOKE OF ALVERTHORPE: dealt with them to the extent that they deal with the Where is it from? Where is the piece of evidence? points where I have said that they do not respond to the issues that I have raised. 13347. CHAIRMAN: Do you mean that it goes back to the floor of the House for a public 13361. CHAIRMAN: Well, you have raised them, committee stage? they have been answered and I do not think we are going to go over it again. 13348. MS KHELA: Yes. 13362. MS KHELA: Well, I do not believe that the 13349. CHAIRMAN: Well, that will happen information presented during the first round was anyway. produced in Bengali. I have letters from MPs confirming that and I have letters from the WHRA 13350. MS KHELA: But will this particular point be confirming that, so I would like that to be answered. raised, that we have raised this as a problem, that we Was information produced in Bengali and Somali do not believe that the least-harmful route has been during the first-round consultation and, if so, where selected? Will that be raised as a point? is the evidence? Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 The Petition of Woodseer and Hanbury Residents Association

13363. MR ELVIN: My Lords, I have already 13375. MS KHELA: I think the situation, as many answered that point and I have already indicated that of the residents and Petitioners feel, is that I do not I will supply examples. think this Committee is minded to do anything about it and, therefore, I think the residents— 13364. MS KHELA: No, I do not want examples of second-round consultations— 13376. CHAIRMAN: About what?

13365. MR ELVIN: Ms Khela, I will supply what I 13377. MS KHELA: About the fact that they do not supply in accordance with the request made of me by believe that the least harmful route has been selected, the Committee. and this Committee is not allowing the consultation that the people of Spitalfields were denied on a least 13366. MS KHELA: Well, my request is for first- harmful route to take place, even though these round evidence as I do not believe that information documents were released late, and that consultation was supplied during the first round in Bengali. never occurred, contrary to Article 6(2), so we will be enforcing that right in whichever way we can find. 13367. My second point is that Mr Elvin mentioned that the WHRA had a fifth appearance. We only 13378. CHAIRMAN: Are you talking about the appeared twice in the Commons, I believe. EIA process or are you talking about route B? 13368. MR ELVIN: That is quite incorrect. 13379. MS KHELA: I think I am talking about 13369. MS KHELA: Now, I would like to put this both. letter up. This letter is from Mr Elvin and it says, “On the issue of the Heron Tower, I understand from Mr 13380. CHAIRMAN: Well, in that case, I have ruled Berryman that further investigations have on both of them and, in that case, there is not a lot of confirmed— point in your going on.

13370. CHAIRMAN: Just hang on a minute. This 13381. MS KHELA: Which is why I said that I do letter is from Mr Elvin to whom, dated when? not believe that the Committee is minded to do anything on the points that I have raised, even 13371. MR ELVIN: My Lords, I think I can help. It though it is very diVerent from the points that is part of the run of correspondence between Mr Matthew Horton raised. I am saying there has been a Carpenter and myself to the Chairman20 of the defect and an injustice in the process of releasing Commons Select Committee dealing with matters information late, releasing it piecemeal, involving a following the first hearing of the Hanbury residents in paper-chase with the Promoter where this 2006 and, as you can see, it is dated 4 May. It is part information was only released after a Freedom of of that bundle of documentation which was put Information request which has put us in a situation before the House at third reading in the Command where the Petitioners, namely the WHRA and the Paper. Spitalfields Small Business Association, have been prejudiced, and we will seek a remedy. 13372. CHAIRMAN: Is this going to help us very much at this stage? 13382. CHAIRMAN: Ms Khela, I have ruled on the question of whether the standing orders of this House 13373. MS KHELA: “On the issue of the Heron have been complied with which deal with the Tower, I understand from Mr Berryman that further incorporation into English law of the EIA directive, investigations have confirmed that option B would and I have ruled that they have been complied with. have had to run under the piled foundations of that Now, there is no point in your going on arguing part of the site where the tallest construction and about this. deepest piles would have been required. I attach a plan which shows this. Planning permission was 13383. MS KHELA: I was advised by the Clerk in granted in July 2002 and amended in September an email and in a telephone conversation that the 2005”. This is clearly referring to the Heron Tower. ruling was to be on Matthew Horton’s point and, as I have made it very, very clear, Matthew Horton did 13374. LORD BROOKE OF ALVERTHORPE: not raise Article 6(2) on any occasion, but we are. I Ms Khela, I am not sure what you are asking us to do. think that is my submission. 20 the Chairman of the House of Commons Select Committee on the Crossrail Bill, Response to the WHRA Letters of 4 April 13384. CHAIRMAN: I do not know what Article Crossrail2007 (SCN-20080508-016 Ref: P80, Correspondence to -017) from David Elvin, QC, to 6(2) is. It is not in your Petition. Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13385. MS KHELA: The consultation is in our 13399. MS KHELA: The legal opinion which Petition and also lawful compliance. Richard Harwood has submitted, which is the last point I am going to make, disagrees with that point. 13386. CHAIRMAN: What does Article 6(2) say? 13400. LORD BROOKE OF ALVERTHORPE: 13387. MS KHELA: It deals with consultation with Paragraph 22 you are after. the public. 13401. MS KHELA: Thank you very much. 13388. CHAIRMAN: And where is it in the Therefore, that is all we would like to say and it is statutory instrument that transposes this? very clear how the residents feel both in the legal opinion submitted by Richard Harwood for the 13389. MS KHELA: It is all in the opinion that you Woodseer and Hanbury Residents’ Association and also the Crossrail legal opinion, and we have no have, but I also have21 it here. further comments. 13390. MR ELVIN: I have put on the screen Article 6(2) of the directive. 13402. CHAIRMAN: Thank you very much. Any answer? 13391. CHAIRMAN: It is in the directive? 13403. MR ELVIN: My Lord, I am conscious that 13392. MR ELVIN: Yes. Ms Khela should have the last word on that, but I am going to breach that, albeit it briefly. The strategic 13393. CHAIRMAN: And I assume it is also in the environmental assessment, Ms Khela really has regulations? misunderstood this. Ms Khela is confusing the response given on an FOI request for information which relates to FOI exclusions with any principle in 13394. MR ELVIN: The regulations do not apply to the directive. This is the strategic environmental the Bill process, though the directive applies directly assessment directive, I am afraid with my scribbling to that. on it, and you will see Article 2(2) on the right-hand side, “Subject to paragraph 3”, which you do not 13395. CHAIRMAN: But they do through the need to worry about, “an environmental assessment standing orders? should be carried out for all plans and programmes”. It is not for projects, it is for plans and programmes. 13396. MR ELVIN: They do in part through the standing orders, but we seek reliance on the 13404. CHAIRMAN: I understood it that the legislative exemption, Article 1(5), so we comply in strategic directive does not apply to Crossrail. substance with the directive, though we are not required to comply with the regulations, but the 13405. MR ELVIN: It does not apply to projects, principle is the same. Article 6(2) is the one requiring no. If you look at the definitions section under (a), public consultation in relation to the Environmental “Plans and programmes means plans and Statement. It does not require consultation in respect programmes, including those co-financed by the of matters which are not in the Environmental European Community, which are subject to Statement and, as your Lordship has ruled, we are preparation and/or adoption by an authority of dealing with matters which were ruled out long national, regional or local level or which are required before the Environmental Statement was presented, by legislative, regulatory or administrative and the Committee has already made its decision that provisions”. Crossrail falls into none of those it was not a main alternative, not required to be in the categories. Environmental Statement and, therefore, there was no requirement to consultation whether under the regulations or the directive. 13406. CHAIRMAN: It is things like the structure plans. 13397. CHAIRMAN: Or standing orders. 13407. MR ELVIN: Structure plans, regional economic strategies, master plans required under 13398. MR ELVIN: And, by application, the policies, all the sorts of development plan documents regulations through standing orders or through that your Lordship will have been familiar with from standing orders. a former existence. It does not include projects. As I 21 said when Mr Horton made his submissions, Council of 27 June 2001 on the assessment of the eVects of certain plans and programmes on the environment (SCN- paragraph 22, you will recall that I missed out a Directive20080508-019 2001/42/EC and -020) of the European Parliament and of the strategic “not” before the word “projects” in Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 Promoter’s Closing Statement paragraph 22. This is the SEA directive and it does do that, he is here, but let me read out the position as not apply to projects. we understand it and see where we can get to.

13408. CHAIRMAN: And I do not think the 13421. My Lords, the way that the construction standing orders apply to it either. railway works is that, as the TBM advances, temporary tracks are laid behind in the invert or 13409. MR ELVIN: No, but in terms of the bottom of the tunnel and the tunnel construction legislative role of the House, there is nothing on trains run on this, and they comprise a locomotive which the SEA directive could bite. My Lords, clearly and rolling stock. It is likely that the trains will if Ms Khela wants to come back on that, I have no consist of a locomotive and three flat-bed trucks to objections to her doing so. carry the concrete segments and another flat-bed for miscellaneous materials, a grout container car and a 13410. CHAIRMAN: Yes, of course she can. man-rider for the workforce, so that is the form of the construction train. 13411. MS KHELA: I am just going to repeat my point. When this Bill is adopted, the Bill will be 13422. CHAIRMAN: Of course the spoil is going adopting a route going through the central section. out on the conveyor. That route, we are told in an FOI request quite clearly by the Government, will be a policy, a policy that will 13423. MS LIEVEN: The spoil is going out on the be adopted. I also gave evidence which suggested that conveyor, so this is the trains bringing the materials there was going to be a master plan with Crossrail in to eVectively support the TBM. The locomotives over Whitechapel in my own presentation and, are likely to be diesel-powered with hydrodynamic or therefore, that is all I need to say on it. hydrostatic transmissions, and I am going to refer to the noise information below. I have got material on 13412. CHAIRMAN: Very well. Thank you. the frequency, but I do not think that matters too much at this stage. The normal working speed of the 13413. MR ELVIN: My Lord, if it is convenient, Ms construction trains is 15 kilometres per hour and, in Lieven is going to deal with the issue of construction working areas and at switching crossings, the speed noise, then Mr Taylor is going to deal with the will be reduced to five kilometres per hour. There will request for clarification on the compensation note be a set of crossovers adjacent to the Westbourne and then I will round oV with the remaining notes, Park footbridge and others adjacent to the including the undertaking issue. Westbourne Park worksite, so one can see from that that we are talking about very low speeds here. 13414. CHAIRMAN: Well, I have got quite a lot of things that need tidying up as well. 13424. The construction noise assessment, which was carried out for the Environmental Statement, shows 13415. MR ELVIN: Indeed. Would it be convenient that baseline noise levels for Westbourne Park Villas at that time were assessed as 64dB L eight hours if we at least got some of those out of the way and Aeq then perhaps your Lordship could let us know if there at night. Now, that was for the ES, so it was some are any other matters that we can answer? time ago. The predicted construction noise level during the tunnelling phase, that is the 24-hour operational phase, from the above is 56dB L and 13416. CHAIRMAN: Any witnesses ought to be that was assessed for 99 Westbourne ParkA Villas.eq heard first. Therefore, the tunnel trains would have to be considerably louder than the other plant operating to 13417. MR ELVIN: I do not think we have any increase the predicted noise level by a suYcient more evidence to call. amount to cause a significant construction noise eVect, and the manufacturer’s noise information 13418. CHAIRMAN: Nothing from Mr Thornely- obtained indicates that that is very unlikely to be the Taylor? case. A point to emphasise here, and I can call Mr Thornely-Taylor to deal with this if the Committee 13419. MR ELVIN: I will hand over to Ms Lieven. want to take it further, is that my instructions from him are that the predominant noise source from this 13420. MS LIEVEN: My Lords, in response to the kind of activity is the train being loaded. It is not the questions yesterday, I was going to read something trains going along the tracks, it is the train being out which has been compiled by the team. Of course, loaded, so it makes very little diVerence whether you if the Committee want Mr Thornely-Taylor to go have a battery-operated train, a diesel-operated train back into the witness box, then we are quite happy to or indeed, as Mr Thornely-Taylor put it to me Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 Promoter’s Closing Statement outside, a horse-drawn train because it is not the to use, as of course will be the reality of whether we trains going along that are making the material noise can get battery-operated trains to do the job in any here. In addition, consideration of the operation of event. the construction trains shows that they will create noise for a much shorter proportion of time than the 13429. I have given that really in order to save time as other plant and equipment. It remains a possibility we are on the last day, but if the Committee want Mr that movements in the construction train may be Thornely-Taylor to give evidence or just to go into audible to nearby residents on some occasions, but the witness box— that has to be considered in the context of other construction activity and mainline train traYc. 13430. CHAIRMAN: Before we decide on that, did I understand you to say that it is not the locomotive 13425. The other point for the Committee to note in that is going to be causing the noise; it is putting the terms of the reality of what is happening here is that segments or whatever it is on to the presumably flat mention was made by Mr Berryman of battery- wagons? operated trains, and my instructions are such that such trains have been used overseas, for instance, we 13431. MS LIEVEN: The predominant noise source think, on the mass transit system in Hong Kong, but is the train being loaded. I do not want you to think we are simply not sure at this stage whether it would we drop the segments and they go “crash!” because be feasible to use battery-operated trains here, even if apparently that is not what happens. Apparently, a it were justified, because we have very long tunnel major part is the crane noise of bringing them over. drives. Since we changed the tunnelling strategy a It is the train being loaded; it is not the actual noise couple of years ago, we now have these very long from the locomotives. It is completely diVerent from tunnel drives, and my instructions are, to put it non- the EWS issue at the batching plant, where the noise technically, that we are just not sure whether the source is the noise coming out of the top of the train. batteries would manage to get the trains to the right We are talking about a very diVerent scale of noise place, and they might run out of—I was going to say here. “steam”—while in the tunnel. 13432. CHAIRMAN: You are putting material on 13426. There were issues such as that which simply to the flat trucks with a crane. have not been determined, but the important point to understand, away from the technicalities, is that the Promoter has made a commitment to apply section 13433. MS LIEVEN: Yes. 61 of the Control of Pollution Act process to the construction sites and that requires that the 13434. CHAIRMAN: Presumably, it makes a noise nominated undertaker demonstrate that best when they get on to the platform of the vehicle. practicable means to control noise have been utilised. 13435. MS LIEVEN: Yes, my Lord. I keep being 13427. In the context of the construction train and told it is the crane, not the material hitting the the selection of either diesel or electric trains, the flatbed truck. Promoter will have to demonstrate that the train type selected is the best practicable means to control noise. 13436. CHAIRMAN: It is the crane that makes It is for that reason that if circumstances demonstrate the noise. that a particular train type has material advantages over another train type, that will be highly material to 13437. MS LIEVEN: It is the crane that makes the deciding what is best practicable means. Therefore, noise. to specify at this time a particular type of locomotive could be counter-productive to achieving the best practicable means, because you might specify now 13438. CHAIRMAN: So it is a diesel crane. battery-operated and you might find that that was not best practicable means. So actually, it is not in 13439. LORD JAMES OF BLACKHEATH: It is anybody’s benefit to try to pin this issue down at the chain in the crane that makes the noise. this stage. 13440. LORD BROOKE OF ALVERTHORPE: If 13428. The commitment to use best practicable Mr Berryman had said this yesterday in the first means in this regard means the Committee can be instance, rather than giving the impression that there completely confident that this issue of whether there might have been some advantage with having is any material impact on noise will be fully taken into battery-operated trains, I would not have put you to account in the final decision as to what type of train all this trouble. Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 Promoter’s Closing Statement

13441. MS LIEVEN: My Lords, I am sorry he did 13450. The structure of the funding arrangements for not. I am sure it is entirely my fault in our preparation Crossrail are very complicated and, as my wife will of the case. I had not seen this as being a major part tell anybody, I am not very good at explaining of the noise element, so we had not gone through the funding arrangements for anything, but what I can evidence, checked the ﬁgures, got Mr Walters to go say is that the part of the £16 billion costs that we back to the manufacturers, all the things we would have heard so much about in these proceedings have done if we had known. That is nobody’s fault. includes the cost of the works to the existing railways, It is the way this rather truncated procedure works. I and indeed new infrastructure to be provided on am sorry. those railways, and, as we have just seen, paragraph 1.3 of this note explains that those costs will be paid for by Network Rail. As such, the additional 13442. LORD BROOKE OF ALVERTHORPE: infrastructure that is provided becomes part of The beneﬁt may be for the residents, that you will do Network Rail’s regulated asset base and, as a result your utmost to minimise. of the general operation of the railway industry procedures, they then recoup the costs through the 13443. MS LIEVEN: The critical point for the access charges that they charge over many years. The residents is that, because of the commitments we have additional infrastructure that is provided as part of made, in response—touching back to points I made the Crossrail scheme is treated just as any other rail earlier—to very strong pressure from local infrastructure project would be treated. authorities, we have committed to using best practicable means to control construction noise, and that means that here the residents can entirely rely 13451. The costs though are costs that are necessary on that. to secure Crossrail in coming forward and so as such are properly included as part of the costs for the project as a whole. The fact that costs are recouped 13444. CHAIRMAN: That is done under section 61. does not mean that those costs are not proper costs. For example, the costs of the other infrastructure, the 13445. MS LIEVEN: That is done under section 61, central tunnels, et cetera, will be recouped through my Lord. Yes. ticket sales to passengers, and indeed, other access charges. That does not mean that, because the costs of the infrastructure on Great Western and Great 13446. CHAIRMAN: Any other points on that? Eastern are recouped, and the costs of constructing Thank you for clarifying that. the tunnel are eventually recouped, that the project does not cost anything. It just means that there is a 13447. MS LIEVEN: My Lord, I am sorry we did cost and there is a mechanism for recouping for those not do so eVectively yesterday. costs. I hope that explains our position.

13448. MR TAYLOR: I have been asked to respond 13452. LORD BROOKE OF ALVERTHORPE: to the point raised this morning by Lord Brooke in Yes, that is straightforward. The only point that relation to the paper on railway compensation. As I struck me was whether Network Rail had a view on understand the point, at paragraph 1.3 of the paper these six projects, whether they were anxious to see we have put in relating to railway compensation, them happen. there is reference to works being undertaken by Network Rail such as electriﬁcation and the six works on which EWS have sought undertakings, and 13453. MR TAYLOR: They were here and I do not the note explains that those works will be designed in recall them expressing a view. I am obliged. detail by Network Rail and the non-network change disruption planning will also be Network Rail’s 13454. CHAIRMAN: There is a number of other responsibility. things still to be dealt with. One of them is the amendments. You have given us a revised list of 13449. Then there is the sentence “Network Rail will amendments. also be paying for these works and recouping the cost through access charges.” It is that sentence, as I 13455. MR MOULD: My Lord, yes, I believe that understand it, that set a particular hare running as to is right. whether or not, as I understand it, the costs of the six works that EWS are referring to are really costs of the project if those costs are being recouped through 13456. CHAIRMAN: Quite diVerent from the access charges. original one. Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13457. MR MOULD: Yes. I know that the separate legislation approved by Parliament, the document has been passed to you and it does, I Railways Act 1993, because the ORR has made it believe, correct a number of points. I regret the fact clear that any decision as to whether to allocate that the ﬁrst stab was not entirely successful. future parts, how to parcel out future capacity and who to, must be a matter for industry processes in the 13458. CHAIRMAN: I think it is taken that the future. The last sentence, said perhaps inelegantly, Committee agrees to make those amendments. was seeking simply to make that point.

13459. MR MOULD: We are obliged for that. 13466. CHAIRMAN: Is not the simple thing to take the last sentence out of the undertaking? 13460. CHAIRMAN: So the Bill will go back to the recommittal with these amendments in it, and 13467. MR ELVIN: Absolutely. therefore be reprinted. 13468. CHAIRMAN: If you want to put it in as a 13461. What has happened about the undertaking, footnote, you can. about the last sentence about the OYce of Rail Regulators? 13469. MR ELVIN: My Lords, I make it clear, the undertaking that was given by Mr Taylor should now 13462. MR ELVIN: My Lords, can I say this. The be read with the deletion of the sentence “The last sentence is not intended to be read as part of the translation of such capacity into the allocation of undertaking. Can I explain this in a little more detail? capacity is for the ORR to determine.” That sentence The purpose of the undertaking, the reason we should be deleted and I simply say that it is there as rephrased it, is to target very precisely the concern of explanation that it is without prejudice, of course, to the Rail Freight Group and EWS, who petitioned the ORR’s statutory role. your Lordships’ House on these issues, which was concerned not with the ORR’s role, nor with the 13470. CHAIRMAN: Thereafter it is a matter of infrastructure works we were proposing, but with the law. possibility that we might delete certain infrastructure works which are currently sought powers in the Bill 13471. MR ELVIN: Yes, but I hope your Lordships and that we might put pressure on the ORR in due understand why we have drafted it the way we have, course to modify the issues. and we have targeted the speciﬁc—

13463. The reason we have drafted this—and I have 13472. CHAIRMAN: Lord Brooke spotted it. to confess to having some hand in the drafting of this undertaking—is to make it clear that this is tied in 13473. MR ELVIN: Yes. My Lords, I do not want with the deletion of proposed infrastructure works, to bicker about this but whichever of your Lordships but in order to deal with the pressure put by the was responsible for raising the point and spotting it, industry, we have sought to tie this to the ORR’s I hope at least that explanation puts your Lordships’ decision of 14 April, which specifically deals with concerns at rest. capacity for rail freight to 2015, which was based on figures, if you recall, in the Crossrail model which, as 13474. BARONESS FOOKES: Does it help to have Mr Garrett explained, in evidence on behalf of the it as an explanatory note? Petitioners was accepted by the parties to the ORR’s hearing. So we have tied ourselves not to any future 13475. MR ELVIN: I have given the explanation to arguments about capacity but to the capacity figure the record and no doubt we can put on the record of accepted by the ORR on 14 April. So we are undertakings a note to the eVect of the explanation I specifically seeking to tie that undertaking to that have just given, that it is without prejudice to the agreed figure with the rail freight industry rather than ORR’s statutory role, if that is of assistance. anything that might be argued after 14 April. 13476. LORD SNAPE: Actually, it is not of 13464. CHAIRMAN: So is the last sentence not part assistance. I hate to fall out with my colleague on the of the undertaking? very last day but I am a bit surprised. I do not think adopting that approach is of any great assistance. It 13465. MR ELVIN: The reason for the last is implicit in the response that Mr Elvin has just sentence—and it should not be read as part of the given, but I would hope that he will not be too undertaking—is this. We simply have to make it clear tempted to include it; having promised to strike it out that of course, as the undertaking must be without of the original response, I prefer him not to include it prejudice to any role the ORR has which is under as a footnote. Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 Promoter’s Closing Statement

13477. MR ELVIN: My Lord, can I make it 13489. So far as the access regulations are concerned, absolutely clear? I will happily read the undertaking there is not as yet consensus, hence the issue with as it now stands, if that clarifies matters for the Network Rail. That will have to be agreed, because record. The undertaking that will go on the register ultimately, if it is the Secretary of State who exercises will not have the last sentence. My qualification, the compulsory purchase powers under what will however it is dealt with—and your Lordships may become the Crossrail Act, and there is a possibility want to recommend how we deal with the that those powers can be delegated under the Act, if qualification, if at all, in your Lordships’ special it is the Secretary of State, then of course, control will report in due course. vest in whoever the Secretary of State gives control to under whatever agreement is reached, but we are 13478. CHAIRMAN: It will be in the transcript seeking, as we said during Network Rail’s Petition, to now anyway. agree between the various interested parties. So, my Lords, the infrastructure manager has not yet been 13479. MR ELVIN: It will be in the transcript now. finally appointed but it is a matter for further We are happy to do whatever the Committee thinks negotiation and discussion, as we explained during is appropriate. It is not part of the undertaking, if the Network Rail Petition. that puts my Lord Snape’s concerns at rest. 13490. CHAIRMAN: Let me try and get this clear, 13480. LORD SNAPE: I had better defer to my because we were asked by Network Rail to colleague. recommend that they and not TfL should be the infrastructure manager for the central tunnel. 13481. LORD BROOKE OF ALVERTHORPE:I am satisfied. 13491. MR ELVIN: That is correct.

13482. LORD SNAPE: We are satisﬁed. 13492. CHAIRMAN: But that would be two diVerent infrastructure managers for the central tunnel according to which regulations you look at. 13483. MR ELVIN: Very well. 13493. MR ELVIN: That is absolutely right. 13484. CHAIRMAN: The other loose end that I have is this question of the infrastructure manager. 13494. CHAIRMAN: As I understand you are saying for the moment, for the purposes of the 2006 13485. MR ELVIN: My Lords, can I deal with this regulations, which is the ROGs, it will be Network issue. Your Lordships will have seen from the paper, Rail. in which I have had some hand, the diYculty is this. Infrastructure manager, as you will have seen, has a diVerent deﬁnition in both the ROGs and the Access 13495. MR ELVIN: There is no dispute that it Regulations. The infrastructure manager in reality should be Network Rail. Network Rail I think are for the Access Regulations is whoever has the rather reluctant to take on that role unless they have appropriate degree of control. In both cases, it is a the other role as well. matter for negotiation between the interested parties, which is why this issue arose with Network Rail. 13496. CHAIRMAN: However, Transport for There were negotiations with Network Rail, TfL, of London would like to have the other role? course ourselves as Promoter and the ORR is going to be involved, as we told the Committee it would. 13497. MR ELVIN: That is what I understand.

13486. The infrastructure manager has not been 13498. CHAIRMAN: Then they are going to ﬁnalised for either sets of regulations. It is not in contract out track maintenance work. dispute that Network Rail should be infrastructure manager under the ROGs, as I said during the course 13499. MR ELVIN: Transport for London wish to of the submissions by Mr Purchas. have the central tunnel deregulated. They wish to have control of it and they wish to deal with the 13487. CHAIRMAN: For the tunnel? management of the infrastructure via contract, which may be to Network Rail but Network Rail do not 13488. MR ELVIN: We are dealing only with the want that type of arrangement. central tunnel. Network Rail is the infrastructure manager for the national network before you get to 13500. CHAIRMAN: Are we really going to have the central section. two infrastructure managers? Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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13501. MR ELVIN: My Lord, as I explained to you 13509. LORD JAMES OF BLACKHEATH: before, the Secretary of State is in a rather diYcult Surely the question is a reasonable one in terms of position, having to take part in the negotiations and how you organise the structure and the make a decision in due course. As I said when responsibilities appointed. Network Rail presented its position, I can see the force in Network Rail’s submission but that has to be 13510. MR ELVIN: My Lords, I did put in some of resolved through the negotiation under existing the legislative duties in the risk assessment note. Of legislation. Your Lordships may wish to express course, the health and safety legal duties are imposed views as to the sense or otherwise of the position and on railways, as your Lordship will know, under the no doubt we would welcome whatever views the 1993 Act, section 117 and thereafter. That may well Committee had as to the correct way forward. influence the application of the corporate manslaughter provisions. I really would be straying 13502. CHAIRMAN: Under both sets of well outside my area of expertise if I ventured a view. regulations. 13511. LORD JAMES OF BLACKHEATH:I 13503. MR ELVIN: My Lord, we are content for think what we are actually looking at is a situation whatever advice the Committee is willing to tender in where the whole of the industry has not yet resolved respect of either set of regulations, the only point where responsibility is going to lie post the Act. This being that under the ROGs, there does not appear to is likely to be one of the first and biggest issues in be any dispute as to who should be the infrastructure Crossrail and any other rail aVair which has to manager other than that Network Rail is, perhaps resolve that question. understandably, reluctant to take on that role if they do not have the control of being infrastructure 13512. MR ELVIN: I sincerely hope the question manager under the Access Regulations. That was the does not arise in a practical context in the context of thrust of their case and if your Lordships consider Crossrail. that an appropriate matter for recommendation, as I say, we would welcome whatever advice the 13513. LORD JAMES OF BLACKHEATH: You Committee has. I emphasize again—and my Lord, and I both know that it will. the Lord Chairman, did tease me on this—it was not my role to present TfL’s case but simply to explain to 13514. MR ELVIN: I am afraid, my Lord, I must you what the arguments that were being run on the diVer from your Lordship, with the greatest of other side of Network Rail were. We have yet to respect on that. make a decision. 13515. CHAIRMAN: Any more questions? 13504. CHAIRMAN: But you might be helped if we made a suggestion. 13516. LORD BROOKE OF ALVERTHORPE: This is truly a concluding one. It goes back to the 13505. MR ELVIN: Your Lordships approaching conclusion reached by the House of Commons Select the matter objectively from the point of view of a Committee, page 56 in the special report, particularly Select Committee of Parliament, your views would be paragraph 244. Similarly, during the course of the ten most welcome, yes. weeks we have been hearing Petitions, I think the issues of communications and consultation again 13506. CHAIRMAN: I think we can probably do have emerged as some of the major topics which that. continue to create possible hazards for the development of the scheme. In part, in producing information, as you have done today, for Spitalfields, 13507. LORD JAMES OF BLACKHEATH: The with the opportunity there for people from Mayfair only thing I would say, Lord Chairman, is that we did too, you have identified an area in which maybe you at that point make a comment upon the application can try a little harder in the future to endeavour to of the Corporate Manslaughter Act, and I have never focus information. Information which you are heard a resolution as to who is going to go to jail if producing in generic terms maybe might be better the necessity arises. focused for particular residents or businesses where they see they have a special problem arising that 13508. MR ELVIN: As long as it is not me, my could conceivably continue to cause diYculties. I Lord. I am not in a position to answer the question; would hope that you might draw some lessons from simply put it to Network Rail. I would hesitate to give the ten weeks you have spent on this and in the light any view at all. of the experience you have had with the Commons. Processed: 14-08-2008 20:08:06 Page Layout: LOENEW [E] PPSysB Job: 405394 Unit: PAG1

1088 committee on the crossrail bill: evidence

8 May 2008 Promoter’s Closing Statement

13517. MR ELVIN: My Lord, the need to 13522. MR ELVIN: My Lord, no one doubts the communicate eVectively is not lost on those importance of communities understanding and responsibility for the project, and your Lordship’s engaging with the works which will take place and words will no doubt be taken very seriously, and, no that process does not stop today, it continues until doubt, any recommendations which this Committee the project is over and, indeed, beyond the end of the makes. project in certain circumstances. We will try to learn and continue to learn. 13518. Can I just say though, in defence of those who have worked assiduously behind the scenes for 13523. CHAIRMAN: Mr Elvin, it may be that when Crossrail, for your Lordship has seen a number of we have got to the end of the Select Committee complaints, a relatively small number of complaints, proceedings things may become a bit easier. I think if I may say so, the work involved in communicating that we all would like to see liaison groups operating the vast amount of information on this massive in whatever local areas are suitable and operating complex has been truly enormous. This is the ﬁrst continuously and satisfactorily. As I read the Hybrid Bill which has gone through the House in Petitions that we have been looking at today, one of many years. It is probably the biggest rail project in the reasons why some of the communities will not over a century. come is because they want all sorts of conditions and preconditions and warranties and guarantees and so on and so forth and they hoped in the Petitions that 13519. Your Lordship can imagine the diYculties this Committee would grant them. I am not going to which exist in making sure that not only do we have say yet what conclusions we are going to come to the information set out as we have on websites, in about this, but supposing that we are going to end up paper format, information rounds, consultation without making, for instance, recommendations that rounds and the like, all of which is set out in the they should all have professional advice at your information papers, but actually, the diYculty is not expense about everything, which is one of the things. so much always in setting out the information, but in engaging the community in understanding that, and 13524. MR ELVIN: So I understand. in many respects we are dependent upon engagement from the community. You have heard, for example, of particular problems with Spitalﬁelds, and we have 13525. CHAIRMAN: Supposing we do not been over that many times. You can see, on the other recommend that, it may very well be that will be a hand, for example, with PRACT in the Paddington barrier out of the way because they are no longer area how such a process can be that much more hoping to get something which they are not going to eVective. get. It may be that they will co-operate more readily. I think you must pursue these matters. There are obviously some very sensitive feelings about these 13520. I say this in genuine defence of those who I things, but you must pursue them without letting up know have worked very hard behind the scenes. It is a because if you do not have these liaison groups, I two-way process. We have continued to learn lessons believe that we will go on having the sort of trouble throughout the two and a half years we have been we have been listening to in the two areas we have before Select Committees of Parliament and we been dealing with today, which, as you rightly say, continue to learn that there are better ways of doing have not happened where PRACT is operated. It is things, and I am sure there are lessons which are still the PRACT model and, indeed, the Camden model to be learned as we take the project forward. We take for the Channel Tunnel Rail Link that we prefer and your Lordships comments very seriously, but I do we would hope to see will be incorporated sincerely wish to make it clear how much work has throughout the length of the route. gone into trying to communicate with communities aVected. 13526. MR ELVIN: My Lords, we agree. My Lords, if there are no other matters, might I say a few 13521. LORD BROOKE OF ALVERTHORPE:I remarks in conclusion given that this is the end of the can accept that. I think you have also recognised that Committee hearing. My Lords, can I, on behalf of the the Committee has been aware that in certain entire team of the Promoters and the Counsel team in circumstances the two-way traYc, so to speak, particular, thank your Lordships for the courtesy between yourself and communities has not worked as and the consideration which you have shown during eVectively as we certainly would like it to be the weeks of the Select Committee hearings, the operating. I think we should perhaps be saying attention to detail and the way in which Petitioners something about that. and Promoters alike have been dealt with. Processed: 14-08-2008 20:08:07 Page Layout: LOENEW [O] PPSysB Job: 405394 Unit: PAG1

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8 May 2008 Promoter’s Closing Statement

13527. Can I also thank the Committee clerks, Sarah 13529. MR ELVIN: My Lord, as your Lordship and Darren, particularly for their help to all those said the other day, “Double eulogies all round”! My involved in the process, both Petitioners and Lord, I am not sure whether I count as the fat lady Promoters. Can I also thank those who often go and I am not intending to sing; Mr Mould always has unsung, the shorthand writers who have had to sit the right word for these occasions, but thank you. late fortunately fewer times before your Lordships than they did in the Commons. Can I also thank the two Committee assistants, in particular Mr Harry 13530. CHAIRMAN: The Committee has now Younger, who has been operating the computer concluded the hearing on the Petitions. We will equipment and coping with its oddities as we have continue to meet in private to discuss and agree the progressed, and Mr Daniel Grocott, who sits behind Special Report and the recommendations contained and has also been assisting in organising papers in it on the various Petitions. That will be published, behind the scenes. We are very grateful to them and I hope, later this month because we are going to get we are very grateful to your Lordships and look on to work on it straight away. There will be hard forward to receiving in due course your Lordships’ copies sent to all Petitioners. It will be put on the recommendation. Committee’s website and then, of course, the Bill goes back to the ﬂoor of the House. It will go back I 13528. CHAIRMAN: Yes. We reciprocate the think through the remaining stages, re-committal, at thanks that you have expressed, not least to the which stage the railway clauses will presumably be various people who have made the process moved out of it and then there will be a report stage comprehensible and now transparent through the and Third Reading. Then it will be returned to the transcripts. This will be of great beneﬁt to everybody. House of Commons to then consider the The Promoters have put forward their case with amendments. I think that is the usual procedure for courtesy and clarity and so have the Petitioners, for public as well as Hybrid Bills. I will just reiterate that the main part anyway! It has been, from our point of it is a very happy moment that we have reached the view, a pleasant procedure and one that I do not end of this on a note of great goodwill and think we regret in any way having volunteered to take contentment all around. Very well. This Committee part in. That makes both sides happy. is adjourned until we get into private session.

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