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COL15 Version: 2 December 2013
THAMES TIDEWAY TUNNEL
CITY OF LONDON CORPORATION’S RESPONSE
TO
THE APPLICANT’S RESPONSE
TO
THE EXAMINING AUTHORITY’S FIRST WRITTEN QUESTIONS AND REQUESTS
FOR INFORMATION
Contents
PART 1 INTRODUCTION .................................................................................................................. 1
PART 2 RESPONSE TO APP01 (Air quality and emissions) ............................................................ 2
PART 3 RESPONSE TO APP05 (Design, landscape and visual impact) ........................................... 2
PART 4 RESPONSE TO APP06 (Development Consent Order Drafting and Related Matters) ........ 3
PART 5 FURTHER MATTERS RELATING TO THE DCO ........................................................... 24
PART 6 RESPONSE TO APP08 (Historic environment) ................................................................. 29
PART 7 RESPONSE TO APP11 (Noise and disturbance) ................................................................ 29
PART 8 RESPONSE TO APP16 (Traffic, travel and transportation) ............................................... 30
PART 9 RESPONSE TO APP19 (Statement of common ground) .................................................... 30
PART 10 RESPONSE TO APP25 (Draft s.106 agreements) ............................................................ 30
PART 11 RESPONSE TO APP26.02.02 (Minor Changes to the Application for Development
Consent – Blackfriars Bridge Foreshore) .............................................................................................. 31
PART 1 INTRODUCTION
1. This Response addresses the Applicant’s Response to the Examining Authority’s First
Written Questions and Requests for Information.
2. We shall avoid needless repetition of the content of the Written Representations
(COL15), the Local Impact Report (COL09) or other documentation previously
submitted. Instead, we shall address only those matters where the Applicant’s Response
has prompted additional points of reply or elaboration. A failure to offer further
comment on matters covered in the Applicant’s Response should not, therefore, be
taken to indicate that any previously indicated point of disagreement has fallen away.
2
PART 2 RESPONSE TO APP01 (Air quality and emissions)
Question 1.1
3. We accept the information provided in the Environmental Statement and Air
Management Plan with respect to the impact of construction traffic and odour control.
We remain concerned about odour being a potential problem once the project is
completed but understand that the use of passive carbon filters for the projected times
when the air pressure is positive from the ventilation shaft provide the best available
technology for dealing with this. We would caveat that the filters will require regular
changing so as to retain their effectiveness although we understand this would be
potentially actionable using Environmental Protection Act if the tunnel owner was not
carrying this out. We would expect that to be a matter of discussion rather than
necessitating legal action, but seek the assurance of an additional requirement to enable
us to approve the details of regular odour management and monitoring.
PART 3 RESPONSE TO APP05 (Design, landscape and visual impact)
Question 5.1
4. Paragraphs 1.1.5c, 1.1.6 and 1.2.39 state that it is considered that the project is in
compliance with the elements of London Plan policy 7.12 and that “Overall, the
project design is considered to be in accordance with the policies and guidance of the
LVMF” and “is in accordance with these elements of the London Plan policy 7.12.”
This would be the case in respect of the submitted plans but under the wide definition
of ‘maintenance’ in the Development Consent Order (DCO) future works could be
carried out that would not. The definition of maintenance is wider than the temporary
effects during construction referred to in paragraph 1.2.8.
5. Furthermore, any future changes may not be in the scope of the environment impact
assessment referred to in paragraph 1.2.5.
Questions 5.3 and 5.4
6. It is accepted that there should be a project wide signature column, the final details for
which would be the subject of site specific requirements, at which stage the final height
at each site could be determined.
Question 5.24
7. The sturgeon lamp standards affected by the project are to be reinstated as far as
possible as reflected in the Design Principles and requirement BLABF 12. The lamp
standards are in a poor condition and in need of refurbishment and we will discuss this
issue with the Applicant.
3
PART 4 RESPONSE TO APP06 (Development Consent Order Drafting and Related
Matters)
Question 6.9
8. The Applicant cites, in paragraph 9.1.3, the precedent of the Rookery South (Resource
Recovery Facility) Order 2011. It is to be noted that the circumstances of that site are
very different from the present. Rookery South is a self-contained facility situated in an
otherwise largely unbuilt area. The Thames Tideway Tunnel will, by contrast, be
integrated into a large stretch of dense urban environment accommodating many
important activities and uses. This means that the potential disruption from future
works is far greater, and heightens the importance of ensuring that the DCO strikes an
appropriate balance between competing interests.
9. In paragraph 9.1.4, the Applicant offers examples of the sorts of work which it
anticipates carrying out under the various heads included within the definition of
“maintenance.” Many of these would be possible under the ordinary powers of
inspection, renewal and repair open to undertakers. The others cover precisely the sorts
of activity which should, in our view, require planning permission from the local
planning authority. We note that the Applicant clearly envisages using the power of
maintenance to carry out work which causes the infrastructure to depart from the
specifications to which it is initially constructed, for instance by altering structures to
improve their efficiency, or installing new technology. Such alterations would leave the
infrastructure operating in a manner which had received no detailed scrutiny from the
Examining Authority as part of the present application.
10. It is not easy to understand the explanation offered by the Applicant in paragraph
9.1.5, but in any event we do not consider that it accurately reflects the present drafting
of the DCO. It may be helpful to break down our comments as follows:
10.1. First, the Applicant indicates that the power is only intended to apply to
“associated development.” This does no more than beg the question. Works of
maintenance amounting to new development can only be authorised as
“associated development,” given that it is the construction of the infrastructure
which is the “nationally significant” development. It is the task of the Applicant
to describe the associated development for which it seeks consent, and that of the
Examining Authority to satisfy itself that such development is indeed
“associated” within the meaning of section 115(2) of the 2008 Act.
10.2. If the Applicant is to be taken to suggest that the DCO should grant a broad
power and leave it to be cut down simply by reference to the vires in the parent
Act, then we suggest that this would be a wholly inappropriate approach. It would
result in a state of wide uncertainty, whereby the Applicant, the local planning
authority and ultimately the courts would be left to determine on a case-by-case
4
basis whether works of maintenance amounting to new development were
“associated” or not. This would be inconvenient, expensive and time-consuming.
What is and what is not associated development is something that should be
determined by the Examining Authority in the course of the application, on the
basis of appropriate particulars supplied by the Applicant.
10.3. In any event, it is not at all clear that the mere concept of “association” could be
relied upon to keep the scale of future works within appropriate limits. To take
the example given by the Applicant, it is by no means obvious, as a matter of
statutory construction, that the decommissioning of a pump would be any more or
less “associated” with construction of the infrastructure than would be the
decommissioning of the main tunnel.
10.4. Secondly, the Applicant points out that the development consent granted by virtue
of article 3 and Schedule 1 does not extend beyond the authorised project. This is
correct but unhelpful. As we have stressed in our Written Representations, the
term “authorised project” extends to all development and all other works
authorised by the DCO. The point is not that article 3 and Schedule 1 might
extend beyond the authorised project, but that the authorised project, and with it
the development consent granted by article 3, extends considerably beyond the
works in Schedule 1. Anything within the terms of the power sought in article 5
and amounting to development would, to the extent that it was within the Order
limits, fall within the development consent granted by article 3, quite irrespective
of the contents of Schedule 1.
10.5. Thirdly, the Applicant seems to draw, from the premise that we have analysed in
the foregoing paragraph, the conclusion that “associated development” is
somehow limited by reference to the final paragraph of Part 1 of Schedule 1, i.e.
to works which do not give rise to materially new or different environmental
effects from those assessed in the Environmental Statement. For the reasons we
have just set out, such a conclusion would be unwarranted. The development
consent which would be granted by a combination of articles 3 and 5 would, by
virtue of the definitions in article 2, be in no way restricted by reference to the
contents of Schedule 1.
11. The Applicant’s submissions on these matters appear to indicate some confusion
between the two notions of the “authorised project” found in the draft DCO, viz. the
“authorised project” defined in article 2 so as to include everything authorised by the
DCO, and the “authorised project” as particularised in the Schedule bearing that title.
We consider that this adds weight to our suggestion that the definitions in article 2 be
revised so as to draw a clear distinction between the authorised project particularised in
Schedule 1 and the ancillary and further activities authorised in the main articles of the
DCO.
5
12. The explanation offered by the Applicant in paragraph 9.1.6 does not address the
substance of the point. First, it is not clear what is meant by the statement that article 5
could not be used to take the project “outwith” article 3. As explained above and in our
Written Representations, the effect of article 3 is to grant development consent for
anything authorised by any provision of the DCO which amounts to development. The
only specific restrictions, apart from the Order limits, are supplied by the approved
plans and the scheduled requirements. The approved plans (which are those listed in
Part 4 of Schedule 2) are largely confined to illustrations of demolition work, site
clearance and site parameters, while the extent to which the requirements would be apt
to control post-construction works of maintenance is unclear. Neither of these therefore
provides adequate assurance about the forms of future development which could be
carried out under article 5.
13. In relation to the second element, we accept that maintenance under article 5 could not
take the project “outwith” article 4 without the Applicant’s losing the benefit of that
article. All that this means, however, is that the project must remain capable of use for
the purpose for which it was designed. This is not a limitation of any substance on the
forms of future development which may be carried out under the guise of maintenance.
Very extensive development could be undertaken without in any way affecting the
purpose for which the infrastructure was used.
14. In paragraph 9.1.10, the Applicant states that maintenance is addressed in the
Environmental Statement. It is manifest, though, from the response given in paragraph
9.1.4, that the Environmental Statement describes only a small portion of the work
which might be carried out under the power of maintenance sought in article 5.
Furthermore, as we have noted above in relation to paragraph 9.1.5, the power of
maintenance is in no way limited by reference to the final paragraph of Part 1 of
Schedule 1. It must therefore be concluded that the works within the scope of article 5
(and consequently the development consent granted by article 3) could go beyond any
works assessed in the Environmental Statement, and give rise to different and wholly
unassessed environmental effects
15. The Applicant asserts in this paragraph that the extent of maintenance is limited by
article 3, Schedule 1 and article 4. For the reasons we have already given, articles 3 and
4 do not provide any limitation of substance on the forms of development which may
be carried out pursuant to article 5, while it is not correct to state that article 5 is in any
way limited by reference to the contents of Schedule 1.
16. In paragraph 9.1.11, the Applicant mentions further purported controls in the form of
requirements, protective provisions and side agreements. First, as we have explained, it
is not clear how the requirements in Schedule 3 would restrain the form of development
which may be carried out under article 5. Secondly, the protective provisions contained
in the DCO are highly limited in scope, in that they are confined to the interests of
specified bodies. They are plainly not an adequate substitute for planning control.
6
Thirdly, any side agreements will be entirely voluntary on the part of the Applicant, and
their contents will not be assessed by the Examining Authority during the application
process. They could not properly be relied upon as a substitute for planning control.
17. We therefore find nothing in the response of the Applicant which leads us to depart
from the view expressed in our Written Representations that the power of maintenance
as presently drafted would purport to authorise a very wide range of works without any
proper scrutiny of their suitability or environmental effects.
18. As a final point, we would draw attention to the expectation that the Undertaker will be
a private company that will own and maintain the project (see paragraph 5.6 of the
Funding Statement (Doc Ref: 4.2). It is apparent therefore that the authority in article 5
of the DCO is not an authority which would render intra vires activities that which
would otherwise be ultra vires. The owner of property is ordinarily entitled to carry out
all of the activities described in relation to its property as a matter of personal
entitlement. It follows that in order to serve any purpose at all, article 5 must be
conferring on the Undertaker authority to do something that would otherwise be
unlawful or illegal. The only constraint on that authority is the extent to which the
Order or an agreement made under the Order provides otherwise.
19. In our Written Representations we have adopted the position that article 5, when read
with articles 2 and 3, grants development consent for the Undertaker to carry out the
defined maintenance activities. However, we now consider whether the article goes
further, and effectively disapplies other controls that might otherwise prevent certain
maintenance activities being carried out or control the manner in which those activities
are carried out. In this sense, article 5 would have some overlap with articles 55 and
56, which seek to disapply or modify public and private legislation. In article 56, the
disapplication etc. applies where the enactment is “inconsistent” with “a provision of,
or the exercise of a power conferred, by this Order.”
20. We submit that the meaning and scope of article 5 is obscure, and we would prefer
drafting which is more transparent. If it is intended to disapply planning, environmental
and other controls in relation to maintenance activities, the DCO should identify those
controls and disapply them in clear terms.
Question 6.15
21. We take the view that consent should be required for an assignment to an infrastructure
provider (IP) under article 9. Although the IP would have to have been appointed by
the Secretary of State or the Water Services Regulation Authority, neither of those
bodies would have a separate opportunity to consider whether the proposed transfer of
powers under article 9 is appropriate. It would be entirely within the Applicant’s
discretion as to which of the powers will be transferred (save with respect to articles 27
– 30 and 40). We do believe there should be some oversight to consider whether the IP
7
is receiving all the powers it needs. In this context, it may not be appropriate to transfer
some or all of the proposed powers without some ancillary arrangements. For example,
the IP in any event will not have the powers of compulsory purchase in articles 27 – 30
and 40. A transfer may also have a ‘knock on’ effect on the enforceability of side
agreements which may not be secured through the DCO, for example asset protection
agreements and section 106 agreements.
Question 6.16
22. As set out in our Written Representations, we do not consider that the Applicant should
be able to avoid liability for acts carried out under the DCO, irrespective of whether or
not it retains the benefit of certain provisions. In other words, the Applicant should in
effect provide an indemnity or guarantee in respect of all liabilities arising under or in
consequence of the DCO. This is because there is no means by which third parties can
be satisfied at this stage of the financial standing of any future transferee.
23. The position under the current drafting is not altogether clear. It would seem that the
likely effect of article 9(4)(b), in providing that a transfer of the benefit of a provision
does not prevent the Applicant from benefitting from that provision, is that the
Applicant will still be considered as a person who has the benefit of the DCO for the
purposes of that provision, and thus will continue to fall within the definition of
“undertaker” for those purposes. This may ensure a degree of continued liability on the
part of the Applicant. We do not consider, however, that the effect of article 9(4)(b) in
this respect is altogether clear enough. The definition of “undertaker” in article 2 is
confusing, in that it appears to assume that one person will have the benefit of the entire
DCO. Assuming that two parties can both be within the definition of “undertaker” for
the purposes of a given article, it is not clear what happens when one of those parties
incurs a liability under that article or as a result of acts carried out pursuant to it. The
Response of the Applicant does little to redress this uncertainty. It says that the benefit
of the DCO “can” be in favour of both the Applicant and the IP; but on our
understanding of article 9(4)(b) (and in order to achieve our desired result) the
appropriate word should be “will.” The Applicant appears to link liability with its
continuing to “use” the powers transferred; but “benefit” (or the entitlement to use) is
different from “use.” On our understanding of article 9(4)(b), liability is dependent on
the former and not the latter. Furthermore, we do not understand the reference to
liability remaining “at least in part” with the Applicant. The Applicant should, in our
view, retain full liability on a joint and several basis, whether in respect of its own
actions pursuant to the DCO or those of any future transferee.
24. Accordingly, we consider that this area merits further exploration by the Examining
Authority. We still think it preferable to include express provision setting out the
continuing liabilities of the Applicant, as suggested in our Written Representations.
8
Question 6.18
25. In paragraph 18.1.4, the Applicant justifies the power in article 10(2) by reference to
those contained in the Water Industry Act 1991. This raises the question of why the
power cannot be limited to (or at least based upon) the powers in that Act. They are
directed towards specific objects, i.e. the laying and maintenance of pipes in streets. If
the Applicant required to include other objects (such as the laying of apparatus other
than pipes), these could be set out and their justification could be properly assessed.
Instead, the Applicant seeks the power for any purpose of the “authorised project.”
This, as pointed out in our Written Representations, encompasses everything authorised
by the DCO, including all ancillary powers. For instance, the Applicant would, in
theory, be able to break up the street in order to make it easier for it to carry out
remedial works to a building under article 21. It is not clear that such a wide power
would be justified, at least without the sort of further controls and safeguards suggested
in our Written Representations.
26. We have made clear in our Written Representations that it is only where the powers
sought exceed those normally available to statutory undertakers that our concerns tend
to arise. In such cases, we think it appropriate that further safeguards be included—in
this case a requirement for consent when the streets affected are not particularised in
the DCO.
27. In paragraph 18.1.7, the Applicant refers to the possibility that works outside the
Order limits might enable it to use more “suitable” streets. In our submission, the
question of which streets are more or less “suitable” for use in the course of the
authorised project is properly a matter for the street authority and not the undertaker to
determine.
28. We note that the assertion in paragraph 18.1.8 would only appear relevant to the initial
construction of the project. The need for urgency, even if it is accepted, does not
explain why powers going beyond those ordinarily available (including the exclusion of
normal controls under the New Roads and Street Works Act 1991) might be required
for routine operation and maintenance.
Question 6.19
29. In paragraph 19.1.4, the Applicant refers to the “scale of the project and the dense
urban environment in which it will be constructed.” While we understand why these
considerations might add to the challenges facing the Applicant in the delivery of the
project, and might render broader powers desirable from its perspective, we note that
they also add to the degree of disruption to other activities which might be occasioned
by the project, and to the importance of ensuring that a reasonable balance is struck
between competing interests.
9
30. In the same paragraph, the Applicant justifies the powers sought in article 10 on the
basis that they are “equivalent” to those available to it under the Water Industry Act
1991. This raises the question of why the Applicant is not content simply to rely on
those existing powers (which will not be excluded in relation to the project). We have
been clear that our concerns in relation to this power are directed to those aspects which
exceed the existing statutory powers available to sewerage undertakers, for instance the
more widely phrased objects for which it may be exercised.
31. We do not consider that the prospect of unanticipated changes to the layout of the street
network entitles the Applicant to a general power of its own to alter the layout of
streets, as paragraph 19.1.5 might be taken to indicate. It would appear a rather
unattractive prospect that a highway authority might undertake costly and carefully
planned alterations to the roads in its area, only for the undertaker to reverse or revise
those changes shortly afterwards. The Applicant is not, of course, entitled to have the
road network across Greater London designed solely for the purposes of the new
infrastructure. A more proportionate approach to this situation would surely involve
some form of consultation mechanism for planned changes in the vicinity of the
authorised project.
32. In paragraph 19.1.11, the Applicant indicates that the effect of article 24 is simply to
subject the Applicant’s existing powers under the Water Industry Act 1991 (or those of
any IP to whom the benefit of the DCO were transferred) to the controls found in the
DCO. We do not agree. There is nothing in article 24, so far as we can identify, that
would serve to prevent the Applicant or an IP from carrying out works in simple
reliance on the authority of the 1991 Act, without reference to article 24 or any of the
controls in the DCO. (We expand on this point below, in response to similar
submissions made on behalf of the Applicant in the course of the First Draft DCO Issue
Specific Hearing.) We consider that the true effect of article 24 is that any transferee
which is not an IP will none the less be able to exercise the powers conferred by the
1991 Act.
33. We do not see why the difficulty exemplified by the Applicant in paragraph 19.1.13
could not be avoided through the acquisition of suitable rights of access in the
conventional manner.
Question 6.20
34. The Applicant suggests, in paragraph 20.1.2, that it is not in the Applicant’s interests
to stop up any more highway than necessary, and that the draft DCO “reflects” this “by
expressly linking any stopping up to the purposes of the authorised project.” We remark
that a condition that something be “for the purposes of” the authorised project does not
amount to a test of necessity. Many things could be done “for” a given purpose without
being necessary to achieve that purpose.
10
35. In paragraph 20.1.4, the Applicant cites various precedents in which a power has been
approved in the form presently drafted, and suggests that there is no reason to strike a
different balance in this case. We are not aware that any of the precedents cited relate to
projects carried out, as this one would be, in a large stretch of densely used and heavily
built urban environment. The scale of disruption to existing activities and uses is likely
to be far more significant with this project, and we would consider it legitimate for the
Examining Authority to conclude that a different balance should be struck in this case
between the competing interests.
Question 6.23
36. We have studied with care the Applicant’s submissions about which of the powers
sought amount to compulsory acquisition (in particular annex 6.23.01).
37. We accept that there is a legitimate conceptual distinction to be drawn between the
acquisition of a proprietary estate or interest in land and the conferral of a statutory
right or power in relation to land. We further accept that, in some contexts, the term
“compulsory purchase” might be taken to refer only to the former: see Halsbury’s
Laws, Vol. 18, 5th
ed. (2009), para. 501. On the other hand, we note that the matter
must be considered in the context of the particular legislation in question, and that
sections 159(2) and (3) and 235(2) of the 2008 Act combine to produce a very broad
definition of compulsory acquisition so far as it involves the creation of new rights over
land. This definition is not necessarily consistent with a highly technical view of
compulsory acquisition as limited to those sorts of right which are strictly proprietary in
character.
38. In relation to one of the specific examples given by the Applicant of a power or right
not amounting to compulsory acquisition, i.e. that of laying and keeping pipes under the
Water Industry Act 1991, we note that the exercise of a similar power to “construct” a
sewer in land has in fact been held to amount to compulsory acquisition: see Taylor and
another v. North West Water Ltd. [1995] 1 EGLR 266 (in relation to section 15 of the
Public Health Act 1936 (repealed)).
39. We prefer to reserve our position for the time being on the extent to which the powers
sought in the draft DCO to authorise the interference with or use of land might amount
to compulsory acquisition within the meaning of the 2008 Act. Even assuming that the
Applicant is legally correct in its submissions, however, we suggest that a high degree
of caution is required as a matter of policy in deciding to grant powers which would
confer much of the same practical advantages in terms of land-use (and inflict much of
the same practical deprivation on the landowner) as full acquisition, but which were
devised so as to circumvent the well-established controls and safeguards attendant on
compulsory purchase.
11
40. We also draw attention to the well-established legal proposition that any interference
with private rights of property generally requires specific and express statutory
authority. While the 2008 Act plainly authorises compulsory acquisition, it is more
questionable the extent to which it should be taken to authorise the appropriation or
alteration of land without acquisition. The most relevant provision is that made by
paragraph 2 of Schedule 5, which enables a DCO to provide for “interference with…
interests in or rights over land.” Whether or not this general wording is sufficient to
authorise the carrying out of compulsory works to private buildings, or indeed the
assumption of full possessory rights to land, without the acquisition of any proprietary
estate or interest is, in our opinion, doubtful. We reserve our final position on this
matter until we have had the opportunity to consider the most recent proposals of the
Applicant, and to take any necessary advice.
41. In respect of article 20 in particular, it should be noted that the power is by no means a
“temporary” one, pace the Applicant’s assertion in paragraph 23.1.1. As we have
pointed out in our Written Representations, the works could be carried out “at any time
before or during the carrying out in the vicinity of the building of any part of the
authorised project”; and the carrying out of the authorised project includes the
operation and maintenance of the infrastructure subsequent to its construction. Nor is
the power confined to “identified” works, as the Applicant indicates in paragraph
23.1.4 (assuming that “identified” here means “particularised”). The power extends, by
virtue of paragraph (11), to any works the purpose of which is to prevent damage to a
structure which is mentioned in Schedule 11, whether or not the works themselves are
listed in that Schedule.
Question 6.28
42. We welcome the clarification offered by the Applicant about the intended interaction of
articles 25 and 26. We consider that the drafting should be amended to reflect this
intention expressly, in accordance with the Applicant’s offer in paragraph 28.1.3.
Question 6.29
43. We accept, as the Applicant points out in paragraph 29.1.2, that the DCO could
legally authorise interference with trees in conservation areas in such a manner as
would avoid the notification requirements in section 211 of the Town and Country
Planning Act 1990. The question is, however, whether or not the Examining Authority
ought to agree to include such authorisation as part of the present application.
44. The main purpose of the notification requirements is to give the local planning
authority an opportunity to consider whether a tree preservation order should be made
(see R. v. North Hertfordshire District Council, ex parte Hyde [1989] 3 PLR 89). Given
that the DCO will maintain stricter controls in relation to trees subject to preservation
orders than in relation to other trees, it would seem appropriate that the local planning
12
authority should continue to have the opportunity to determine whether a given tree
ought to be protected by a preservation order before it is felled.
45. It is not correct to state, as the Applicant does in paragraph 29.1.3, that the effect of
paragraph 10(1) of Schedule 19 is to exclude the requirements of section 211. That
paragraph only applies to orders, notice and regulations under the Act, while the
prohibition in section 211 is contained in the section itself and does not depend on any
order, notice or regulation.
Question 6.31
46. In paragraph 31.1.1 the Applicant states that it proposes to acquire, “all such land and
rights as are necessary for the authorised project to remain in its constructed and
permanent position.”
47. However, in relation to permanent works which are constructed on land under article
34, there is no provision that would require the Applicant to acquire such land or rights.
Indeed article 34(7) may preclude the Applicant from doing so, unless all permanent
works listed in Schedule 14 are confirmed to be subsoil works. It is unclear to us how
the acquisition of the permanent works is intended to be secured, particularly once the
benefit of article 34 is transferred to the IP.
Question 6.33
48. For the reasons given in relation to Question 6.23 above, we reserve our position on
whether or not the power sought in article 47 of the draft DCO technically amounts to
compulsory acquisition within the meaning of the 2008 Act, at least until we have had
the opportunity to give the matter fuller consideration in the light of the Applicant’s
response to the representations already made to the Examining Authority.
49. Notwithstanding the correct answer to this, there is no doubt that the power sought
would authorise a wide degree of interference with private land, which in some respects
would be akin to the direct creation of an easement or some similar proprietary interest.
Caution is therefore necessary in determining the appropriateness of such a power and
its limits, both for reasons of policy and in view of potential objections as to vires as
adumbrated in relation in Question 6.23.
Question 6.35
50. In paragraphs 35.1.11, 35.1.14, 35.1.18, and 35.1.22, the Applicant refers to the
potential need to obtain planning permission for certain works authorised by the DCO
but outside the Order limits. It is our opinion that the exclusion of the Town and
Country Planning Act 1990 in the form currently sought by the Applicant would render
this impossible. We expand on this in relation to Question 6.72, below.
13
Question 6.48
51. For the reasons given in relation to Question 6.23 above, we reserve our position on
whether or not the power sought in article 47 of the draft DCO technically amounts to
compulsory acquisition within the meaning of the 2008 Act, at least until we have had
the opportunity to give the matter fuller consideration in the light of the Applicant’s
response to the representations already made to the Examining Authority.
52. Putting the technicalities to one side, the power would, as explained in our Written
Representations, clothe the Undertaker with what amounted to a full possessory title to
the affected land, while correspondingly depriving the landowner of any beneficial use.
To all practical intents and purposes, the land would have been acquired by the
Undertaker, at least for the duration of the exercise of the power. However, on the
Applicant’s case, the controls on compulsory acquisition laid down by the 2008 Act
would be avoided, simply because no estate or interest was acquired which was
technically proprietary in character. The concerns we have stated in relation to Question
6.23, both as a matter of policy and of legislative vires, would therefore seem to apply
with especial force here.
53. It may be important to bear in mind, in this context, that in such an intensively
developed environment as the City of London, subsoil and air-space can be valuable
property in their own right, commanding significant capital value.
54. We turn to respond to some of the Applicant’s more specific points.
55. In paragraph 48.1.3 (and paragraph A.5.3 of Appendix 6.23.01), the Applicant
indicates that article 47(1) equates appropriation with use. For the reasons given above,
we do not consider that this would affect the proper classification of the power for the
purposes of the 2008 Act. However, we note that article 47(1) does not indicate that
appropriation is the same thing as use: the right to “appropriate” and the right to “use”
are laid out as distinct and consecutive elements of the power. In other words, the right
to use is given in addition to that to appropriate, rather than the two terms being used
synonymously.
56. In paragraph 48.1.4 (and in paragraph A.5.4 of Appendix 6.23.01), the Applicant
seeks to draw guidance about the proper meaning of “appropriate” from the provisions
of Part IX of the Town and Country Planning Act 1990. We do not consider that any
helpful guidance can be drawn from this example. “Appropriation” is there used in a
distinct technical sense to refer to the treatment of land acquired under one enactment
as if it had been acquired for the purposes of another. It does not involve any
interference by one person with land owned by another. This is clearly very far
removed from the power to appropriate with which we are concerned. “Appropriate” is
used here in a sense more akin to that found in the criminal law, i.e. the assumption of
14
the rights of an owner in relation to property belonging to another (see section 3 of the
Theft Act 1968).
57. In paragraph 48.1.7, the Applicant asserts that the power is intended to be a temporary
one. This is not the effect of the present drafting. As noted in our Written
Representations and above, the power may be exercised “for the purposes of the
authorised project,” which expression encompasses not only the initial construction of
the infrastructure but also its subsequent operation and maintenance, as well as the
exercise of any ancillary power. There is no time limit on the period for which land
may be appropriated, nor is a given exercise of the power to be exhausted by the
completion of any particular works.
Question 6.49
58. In paragraph 49.1.1, the Applicant indicates that article 47(3) protects structures “in
the street, or above the street.” The current draft does not use the word “above.” While
it is possible that a projection from a building into the airspace above a street might be
considered as “in” or “on” the street, this would not appear clear as a matter of the
ordinary usage of those words. Moreover, it is conceivable (particularly in the City) that
buildings might include projections over a street even if they did not directly front onto
that street, for instance in the case of elevated walkways. It is for this reason that we
suggested in our Written Representations that the article be amended to make explicitly
clear that the power to appropriate without acquiring a legal interest does not apply to
parts of buildings or other structures projecting above a street.
Question 6.54
59. In the light of the indication given on behalf of the Applicant in the course of the First
Draft DCO Issue Specific Hearing that provisions relating to deemed consent would be
withdrawn, we offer no further comment on this matter.
Question 6.59
60. We note that in paragraph 59.1.1 the Applicant has listed four articles where there is
specific reference to arbitration. It is not clear to us whether disputes arising in relation
to consents that are not referred to article 53(1) would be better referred to arbitration or
dealt with by some other dispute mechanism. If the former, then it may be questioned
whether the President of the Institution of Civil Engineers is the right person to make
the appointment of the arbitrator on all occasions.
Question 6.66
61. In the light of the indication given on behalf of the Applicant in the course of the First
Draft DCO Issue Specific Hearing that provisions relating to deemed consent would be
withdrawn, we offer no further comment on this matter.
15
Questions 6.67 and 6.68
62. The COL remain of the view that a minimum time-scale of 8 weeks will be required. In
the Crossrail Act 2008 the more usual 8 weeks was given for all approvals (see
paragraph 30 (2) of Schedule 7 of the 2008 Act). However the COL found that this
time-scale was tight in relation to some complex issues.
63. We have noted (as the Applicant point out in paragraph 68.1.3 of their Response) that
the time period is extended where the discharging authority applies for further
information. However, the timescale by when that request can be made is very tight,
and in our opinion unreasonable where the issue is complex. It is a mere 7 business
days from receipt of the application. If that time limit is missed, the 5 or 8 week time
limit will not be extended at all, even if subsequently the undertaker supplies requested
further information. Indeed, paragraph 2(4) precludes the authority from even
requesting further information if the 7 business day deadline is missed. In reality the
process of review may reasonably take two or three weeks. Once the additional
information is received, further information may be required as a result. This further
requirement for information does not extend the time limit.
64. In relation to a consultee, it is unreasonable to expect the authority to have issued the
consultation to any required consultee within 1 business day of receipt of the
application. The authority may wish to have at least done a preliminary review of the
application before doing so and raise preliminary issues with the consultee. This
process may in fact work to speed up the process of approval. We would suggest 5
business days is a suitable compromise.
Question 6.72
65. In paragraph 72.1.1, the Applicant suggests that the scheduled requirements (and in
particular the Code of Construction Practice) will to some extent fill the place of the
statutory controls excluded by Schedule 19. Insofar as this might be the case, it is
important to note that the requirements are largely directed to the initial construction of
the infrastructure (and indeed the project-wide Code of Construction Practice is
expressly so confined), while the legislative exclusions all extend (as noted in our
Written Representations) to the operation and maintenance of the infrastructure.
Therefore the mitigation provided by the requirements is partial at best.
66. In paragraph 72.1.2, the Applicant asserts that legislation has only been excluded where
“necessary.” It is our view that the Applicant has not done enough, whether in the
Explanatory Memorandum which accompanied the draft DCO or in the Response with
which we are currently concerned, to demonstrate in detail the practical necessity of the
various exclusions sought.
67. In the same paragraph, the Applicant repeats its assertion that local legislation is only
excluded insofar as “inconsistent” with the DCO. We have already noted in our Written
16
Representations that this would not appear to be correct: the very broad exclusion in
article 56(2)(k) is subject to no criterion of inconsistency. The effect of the words, “in
particular,” which open paragraph (2) is obscure, as it is in fact clear that the paragraph
goes beyond the scope of paragraph (1), not least in that it applies to unscheduled
enactments. In any event, for the reasons given in our Written Representations, the
criterion as presently drafted imposes no limitation of real substance on the scope of the
exclusions.
68. We turn now to consider the submissions of the Applicant in relation to the exclusions,
as found in Appendix 6.72.01. As a general preliminary point, we draw attention to the
Applicant’s method of relying on various “controls” within the DCO, which, it is said,
“would ensure that the public interest objective underlying the excluded provision
would continue to be met, without undue interference to the effective and efficient
implementation of the project.” The natural concomitant of this, of course, is that the
scope of the exclusions should not generally exceed that of the controls which take their
place. This is of particular (although by no means exclusive) relevance in connection
with our concerns about the continued effect of the exclusions beyond the period of
construction, when, as the remarks below will illustrate, many of the “controls” cited by
the Applicant will not apply.
Highways Act 1980
Section 141
69. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3.
70. It is difficult to see how the contents of Schedules 1 and 2 would serve as a control on
the planting of trees. No mention of such planting appears in Part 1 of Schedule 1,
while Part 2 of that Schedule authorises in entirely general terms “works to trees and
landscaping not comprising development.” Of the plans in Schedule 2, the works plans
in Part 1 appear to have effect only to determine the Order limits and limits of
deviation, the land plans in Part 2 are relevant only to compulsory purchase, the access
plans in Part 2 are relevant only to rights of way and of navigation, and the approved
plans in Part 4 are largely confined to illustrations of demolition work, site clearance
and site parameters.
71. Schedule 3 would include controls on the planting of trees, through the landscaping
details which are required to be submitted to and approved by local planning
authorities. It is not at all clear, however, that the drafting of the relevant requirements
is apt to encompass all of the works authorised by the DCO which might involve the
planting of the trees. For instance, while details of all landscaping works must be
submitted, it is only in relation to the “authorised development” that a direct obligation
is imposed to abide by the details. This would not include the planting of trees
authorised by Part 2 of Schedule 1, which excludes works amounting to development.
17
Nor is it clear whether subsequent works under the power of maintenance in article 5
would be bound to the same extent as the initial construction.
72. Accordingly, we maintain that the exclusion of section 141 should only apply in
relation to planting details of which have been submitted to and approved by the local
planning authority pursuant to a requirement listed in Schedule 3. It is only to this
extent that the controls cited by the Applicant can justify the exclusion.
Section 167
73. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3.
74. Schedules 1 and 2 would not appear to provide any proper means of control or scrutiny
in relation to the erection of retaining walls. Schedule 3 would include controls on the
erection of retaining walls, through the requirements for the detailed design approval of
above-ground structures. It is not at all clear, however, that the drafting of the relevant
requirements is apt to encompass all of the works authorised by the DCO which might
involve the erection of retaining walls, particularly in relation to walls which may be
partly below ground or to works carried out under the power of maintenance.
Accordingly, we maintain that the exclusion of the provisions relating to the erection of
retaining walls (i.e. subsections (2) to (4)) should only apply to the extent that details of
the wall have been submitted to and approved by the local planning authority pursuant
to a requirement listed in Schedule 3. This would more precisely align the extent of the
exclusion with the controls cited by the Applicant to justify the exclusion.
75. None of the controls cited by the Applicant would appear to have any relevance to
walls which have in fact become a danger to persons using the street. They do not,
therefore, fulfil the “public interest objective” of subsection (5), and do not justify the
exclusion of highway authorities’ powers to protect public safety in respect of such
walls. We maintain the view expressed in our Written Representations that subsection
(5) should not be excluded.
Sections 169(1), 172 and 173
76. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3. Schedules 1 and 2 would not appear to provide any proper
means of control or scrutiny in relation to scaffolding or hoarding. Schedule 3 would
import certain requirements about hoarding, through the Code of Construction Practice,
Part A. However, this only applies to the construction of the project; and, in any event,
it is a weaker form of control (involving no process of approval by the local authority)
which would only be justified in the special circumstances of the construction of the
infrastructure. Therefore the controls cited by the Applicant do not justify the continued
exclusion of section 172 and 173 beyond the construction period.
18
77. Since the submission of our Written Representations, we have reviewed the Code of
Construction Practice and found that it does not mention scaffolding. There does not
appear to be any other requirement in Schedule 3 which is relevant to scaffolding. It is
hard to see, therefore, how the controls cited by the Applicant have any relevance to the
“public interest objective” of section 169(1). Accordingly, in addition to maintaining
the view that the exclusion of section 169(1) should not extend beyond the construction
period, we would question whether the exclusion is appropriate even during that period
(unless the Applicant is able to point to some further means of control which might
have escaped our attention).
Building Act 1984
78. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3.
79. Schedules 1 and 2 would not appear to provide any equivalent form of control to that
found in the Building Regulations. While Schedule 3 does include some requirements
which might sensibly take the place of the Regulations to a certain extent, we are by no
means satisfied that the cumulative effect of the requirements is of comparable scope.
In addition, there are the uncertainties we have expressed above in relation to other
exclusions about the application of these requirements to works not amounting to
development or to works carried out subsequently to construction under the power of
maintenance. Accordingly, in the continued absence of any detailed explanation of the
adequacy of the controls cited by the Applicant, we maintain the view that insufficient
assurance has been received to permit the exclusion of the Regulations.
New Roads and Street Works Act 1991
80. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3.
81. Schedules 1 and 2 would not appear to provide any means of controlling the disruption
caused by street works in the course of the project. Therefore they do not serve the
same purpose of the provisions sought to be excluded.
82. As for Schedule 3, the only specific requirements referred to by the Applicant (in
relation to sections 56(1) and (1A), 58(1), 74 and 74A of the 1991 Act and the various
relevant provisions of Schedule 3A thereto) are those relating to phasing. These are,
however, non-binding and for the information of local authorities only. They only serve
to denote the general timing and location of works, and do not go into the sort of detail
covered by the excluded provisions. Importantly, they are only relevant to the initial
construction of the infrastructure, and not to its subsequent operation and maintenance
(both of which currently attract the powers to execute street works).
19
83. The Applicant also refers to the site-specific requirements relating to highway works.
These, however, would only appear to relate to the design and layout of certain
specified highways after works on them have been completed, and not to the disruption
caused in carrying out the works. They are therefore of little relevance to the function
of the excluded provisions.
84. Of greater relevance might be the various site-specific requirements to submit
construction traffic management plans. These, however, nominally relate only to the
works of construction, and would not seemingly apply to works carried out in the
course of the subsequent operation and maintenance of the infrastructure.
85. Accordingly, nothing in the various controls cited by the Applicant would appear to
provide any support for the exclusion of the identified provisions of the 1991 beyond
the period of construction.
Traffic Management Act 2004
86. The submissions given above in relation to the New Roads and Street Works Act 1991
are repeated.
Party Wall etc. Act 1996
87. The controls cited by the Applicant in support of this exclusion are the fact of the
project’s authorisation in article 3 and, in relation to the exclusion of section 1(2) and
(5) and that of sections 1(6) and 2, the notification requirements found in article 21.
88. These would only appear relevant to the provisions relating to notice, as found in
section 1(2) and (5). Presumably the underlying contention of the Applicant is that
there is no need to give notice of new building in the course of the authorised project,
as sufficient details are available in the documentation published as part of the
application.
89. We fail to see how this furnishes any justification for the exclusion of the substantive
private rights conferred by the excluded provisions. The purpose of the notices required
by section 1(2) and (5) is not simply to inform the adjoining owner of the intended
building but rather to engage the substantive rights and obligations contained in the
other provisions of that section. Sections 2 and 6, moreover, confer substantive rights
without any precondition of notice (although section 6 does include notification
requirements). The essence of the excluded provisions is not the notification of
adjoining owners but rather the conferral of rights to take practical measures to protect
their interests.
90. Therefore the Applicant has cited no provision of the DCO which would in any way
“ensure that the public interest objective underlying the excluded provision[s] would
continue to be met.” Nor has it provided any reasoning to the effect that that public
20
interest objective must give way to some other imperative in the circumstances of the
project. Accordingly, in the light of the Applicant’s submissions, we are minded to
oppose this exclusion outright, subject to any further justification which the Applicant
might offer.
Planning (Listed Buildings and Conservation Areas) Act 1990 etc.
91. The controls cited by the Applicant in support of this exclusion are the requirements in
Schedule 3 and the protective provisions in Schedule 16.
92. Of the requirements specifically cited, requirement PW9 applies only “during
construction or to mitigate the effects of construction.” Moreover, it is relevant only to
listed buildings and not to conservation areas. Requirement PW10 is of limited scope,
applying as it does only to the demolition or removal of certain heritage assets.
93. The protective provisions in Schedule 16 are also highly limited in scope, in that they
are confined to the interests of specified bodies. They are plainly not an adequate
substitute for planning control.
94. Therefore we see nothing in the controls cited by the Applicant which would justify this
exclusion beyond the period of construction. Nor, for that matter, do we consider the
exclusion justified during the period of construction in relation to works not fully
particularised in the application or otherwise not within the development consent
granted by article 3 (for instance unscheduled works carried out under articles 20 or
21). In relation to the latter case, the Applicant has accepted that planning permission
will be required for development outside the Order limits (although see our submissions
below on the exclusion of the Town and Country Planning Act 1990), so it is difficult
to see why listed building consent should not likewise be required.
Local Government (Miscellaneous Provisions) Act 1976
95. We do not agree with the Applicant’s description of the effects of this exclusion. The
normal effect of section 46 of the 1976 Act would not be to make the DCO subject to
“future local acts,” but to make it subject to the existing enactments relating to town
and country planning, historic buildings and ancient monuments, and deposits in the
sea.
96. Having noted this, we do not object to the substance of the exclusion.
Town and Country Planning Act 1990
97. These comments relate only to the exclusion in paragraph 10(1) of the Schedule.
98. In describing “the usual effect of the legislation referred to,” the Applicant refers to
“special controls in relation to trees.” In describing “the effect of the exclusion,” the
Applicant states that it would “not have to comply with restrictions relating to
21
trees/plants.” Under the head of “relevant DCO provisions,” the Applicant refers to
articles 25 and 26, both of which deal with trees.
99. This falls some way short of providing an accurate account of the nature of the
exclusion sought. Paragraph 10(1) applies, in what we presume to be deliberately wide
drafting, to any “order, notice or regulation under the Town and Country Planning Act
1990 in relation to the preservation or trees, the state of land or any other matter”
(emphasis supplied). In other words, it would exclude any “order, notice or regulation”
under the Act, irrespective of the subject-matter.
100. A more helpful (although not necessarily complete) list of the provisions which would
be excluded on the face of this provision might proceed along the following lines:
- Development orders under section 59 (including the General Permitted Development
Order, which contains permitted development rights for sewerage undertakers).
- Local development orders under section 61A.
- Neighbourhood development orders under section 61E.
- Environmental Impact Assessment regulations made under section 71A.
- Provisions which may be made by development orders by virtue of section 74.
- Notices of appeal to the Secretary of State under section 78.
- Notices of refusal after an appeal has been made under section 78A.
- Completion notices under sections 94(2) and 96(1).
- Orders revoking or modifying planning permission under sections 97 and 100.
- Orders requiring the discontinuance of, or imposing conditions on, the use of land,
or requiring the alteration or removal of buildings, under sections 102 and 104.
- Notices of the intended enforcement of planning obligations under section 106(7).
- Notices of the determination of applications for the modification or discharge of
planning obligations under section 106A(7).
- Notices of appeal against the determination of applications for the modification or
discharge of planning obligations under section 106B(3).
- Regulations governing claims for compensation against local planning authorities
under sections 107, 115, 186, 223 and 250 (see section 336(1) (“prescribed”)).
- Compensation notices under section 111.
- Purchase notices (and the regulations governing the service of such) under section
137.
- Notices requiring the purchase of blighted land under section 150 (and counter-
notices under sections 151 and 152).
- Planning enforcement orders under section 171BA.
- Planning contravention notices under section 171C.
- Temporary stop notices under section 171E.
22
- Enforcement notices under sections 172 and 182.
- Regulations governing appeals against enforcement notices under section 175 and in
respect of the execution of such notices under section 178(3) to (5).
- Stop notices under section 183.
- Breach of condition notices under section 187A.
- Provisions made by development orders in relation to applications for certificates of
lawful use under section 193.
- Tree preservation orders under sections 198 and 202.
- Tree preservation regulations under section 202A.
- Notices requiring the reinstatement of trees under section 207 (and regulations
governing appeals against such notices under section 208(4)(c) and in respect of the
execution of such notices under sections 209 (3) to (5)).
- Notices of intent to interfere with trees in conservations areas under section
211(3)(a).
- Regulations for the disapplication of section 211 under section 212.
- Notices requiring the proper maintenance of land under section 215 (and regulations
in respect of the execution of such notices under section 219(3) to (5)).
- Regulations for controlling the display of advertisements under section 220.
- Notices of intent to obliterate placards and posters or to remove structures used for
unauthorised displays under sections 225(3) and 225A(3).
- Action notices under section 225C.
- Defacement notices under section 225F.
- Notices and counter-notices in respect of the intended use of powers in relation to
undertakers’ land under section 225K.
- Orders requiring the acquisition or development of land under section 231.
- Notices of intent to dispose of land held for planning purposes under section
233(4)(a).
- Orders for the stopping up or diversion of highways under sections 247 and 248
- Orders extinguishing the right to use vehicles on highways under section 249.
- Orders extinguishing public rights of way under sections 251, 257 and 258.
- Regulations governing concurrent proceedings in connection with highways under
section 255.
- Orders for the stopping up or diversion of footpaths and bridleways under section
257.
- Notices and counter-notices in respect of the extinguishment of undertakers’ rights
under section 271, or those of electronic communications network operators under
section 272.
- Notices and counter-notices in respect of the removal or re-siting of apparatus under
section 273.
23
- Orders extending or modifying the powers and duties of undertakers under section
275, or relieving undertakers from obligations under section 276.
- Notices of the exclusion of section 280 given by undertakers under section 281.
- Regulations concerning fees for applications and appeals under sections 303 and
303ZA.
- Regulations modifying the application of the Act to the land of or development by
planning authorities under sections 316 and 316A.
- Notices in respect of ecclesiastical property under section 318.
- Regulations concerning the procedure on certain appeals and applications under
section 323.
- Notices of intent to exercise a right of entry for the purposes of surveying under
section 325(1)(b).
- Notices requiring the provision of information about landlords’ interests in land
under section 330.
101. We would have significant objections to the exclusion of certain of these provisions.
We do not expand on this at present, though, as we do not think that such a wholesale
exclusion of the planning system (which would render its basic machinery inapplicable
or inoperable in respect of the entirety of the authorised project) can in fact represent
the true intention of the Applicant. This is because the Applicant acknowledges the
need for separate planning permission for certain forms of development authorised by
the DCO (and thus falling within the meaning of the “authorised project” under article
2): see in particular paragraphs 35.1.11, 35.1.14, 35.1.18, and 35.1.22. Exclusions of
the breadth currently proposed would make it impossible that such matters could be
dealt with through the ordinary planning process.
102. We therefore reiterate the submission made in our Written Representations that the
Applicant should specifically identify and justify the provisions of the 1990 Act that it
wishes to exclude in relation to the project, and to what extent. Given the number of
provisions potentially in issue, little more can usefully be said on our part until greater
particularity is forthcoming. We note, however, that the extent to which the regime
introduced by the Planning Act 2008 should supersede that of the 1990 Act will have
been very carefully considered and given effect in the drafting of the 2008 Act, and that
further widespread exclusions of the 1990 Act through the general medium of section
120(5) of the 2008 Act are therefore unlikely to be appropriate.
Flood and Water Management Act 2010
103. The Applicant states in Appendix 6.72.01 that matters in relation to flood protection
will be controlled through, among other means, “arrangements being entered into
between Thames Water and authorities responsible for such matters.” We would
mention that the City of London Corporation is a flood authority, but we do not seem to
24
have received any details of the proposed arrangements. We would be pleased to have
clarification on this point.
National Parks and Access to Countryside Act 1949
104. The controls cited by the Applicant in support of this exclusion are said to be provided
by Schedules 1, 2 and 3, and by articles 14 and 15.
105. We fail to see how anything in these “controls” would meet the “public interest
objective” of the provisions of the 1949 Act which the Applicant seeks to exclude, i.e.
the advisory designation of the Thames Path as a route along which the public should
be able to make extensive journeys on foot. Indeed, article 14 proposes to stop up part
of the Path without providing an alternative right of way. The Applicant offers no
reason why this project might in any way affect the desirability of a long-distance
pedestrian route besides the Thames, nor any explanation of what practical effect it
seeks to achieve by excluding the 1949 Act. Accordingly, we reiterate our opposition to
this exclusion.
Control of Pollution Act 1974
106. We note, further to the point made in our Written Representations, that no reason is
offered by the Applicant why underground tunnelling should be placed altogether
outside the scheme of sections 60 and 61 of the 1974 Act, while powers in respect of
other works are simply made subject to a duty to “have regard” to the Code of
Construction Practice. The Code and the other requirements would not appear to
contain any greater controls on noise arising from underground tunnelling than that
arising from any other works. In the absence of any reasoned justification for affording
special treatment to underground tunnelling, we are minded to oppose this exclusion.
Local legislation
107. We are grateful for the further explanation provided by the Applicant of the reasons for
seeking to exclude the particular enactments listed in Part 2 of Schedule 19. We will be
reviewing those which affect the City of London with a view to identifying any
potential adverse effects, and may offer further submissions in due course.
108. The proposed exclusion of the City of London (Various Powers) Act 1967 is of
particular relevance to the potential designation of the new foreshore structure at
Blackfriars Bridge as a city walkway. We are currently considering proposals from the
Applicant received on 27th
November, and will continue to liaise with them.
PART 5 FURTHER MATTERS RELATING TO THE DCO
109. This would appear to be an appropriate juncture to mention certain additional matters
which do not arise from the Applicant’s Response but rather from submissions made on
its behalf in the course of the First Draft DCO Issue Specific Hearing. In the course of
25
preparing for that hearing, further questions also came to mind about the drafting of the
requirements, which it might be helpful to set out now.
Statutory nuisance
110. It was indicated by Counsel for the Applicant that article 7(1) of the draft DCO was
intended to displace the wider defence to proceedings for nuisance which is
provisionally made available by section 158 of the 2008 Act, i.e. that it would serve as
“contrary provision” for the purposes of section 158(3) of the Act. We had not
previously considered article 7 in the light of section 158, as we had taken the latter to
refer to nuisance at common law rather than to statutory nuisance under the
Environmental Protection Act 1990. If article 7(1) is indeed intended to have the effect
of disapplying a defence which would otherwise be available under section 158, it
would make for better drafting, in our view, to set this out expressly. At present, the
article is expressed in terms which would appear to indicate the provision of a new
defence rather than the curtailment of an existing one, and while the inclusion of
specific provision in the DCO might be taken to exclude by implication the wider
defence under the 2008 Act, this is not necessarily or self-evidently the case.
Parallel powers
111. In the course of discussion about the power sought in article 35 of the draft DCO, the
question was raised why the Applicant could not rely on the powers of entry for
temporary works purposes that it enjoys under the Water Industry Act 1991. Counsel
for the Applicant responded to the effect (if we understood correctly) that the Applicant
wished for all of the powers exercisable in relation to the project to be brought together
in one place, where they would be subject to the same constraints and controls. (This in
fact reflects, we see, a submission made by the Applicant in paragraph 19.1.11 of its
Response.) This is something which would be relevant not only to the power in article
35 but to a number of other powers sought, such as that of executing street works in
article 10.
112. We do not consider that the DCO as currently drafted reflects this proposition. It would
not appear to contain anything which would preclude the Applicant (or another IP to
whom the benefit of the DCO was transferred) from relying on its existing powers
under the 1991 Act or other legislation in respect of matters within the scope of the
project. Therefore we would not be in a position where all of the powers relevant to the
project were brought into one place and subject to the same constraints, but one where
the Applicant or IP would have the benefit of two parallel regimes between which it
could pick and choose according to its advantage in any given case.
113. It may therefore be appropriate, in order to give effect to the thrust of the Applicant’s
submissions, to include provision which would either preclude reliance on any parallel
power for activities within the scope of the authority conferred by the DCO, or
26
alternatively make the exercise of any parallel power subject to the requirements and
other controls contained in the DCO.
Temporary works powers
114. The Applicant’s reliance on the Water Industry Act 1991 in support of the power
sought in article 35 of the draft DCO invites a closer comparison of the temporary
works powers provided by that Act and those sought in the DCO as presently drafted.
The relevant powers in the 1991 Act would appear to be those found in sections 159
(which confers a power to lay and maintain pipes in private land) and 168 (which
confers a right of entry onto land for the purposes (inter alia) of exercising the power
conferred by section 159).
115. Although we have not conducted a full analysis, it would appear that the powers in the
1991 Act are subject to certain controls and safeguards which are not found in the draft
DCO. They are as follows:
- Section 181 of the 1991 Act enables a person to complain to the Water Services
Regulation Authority if an undertaker has exercised its powers unreasonably or
without adequate consultation, and to be awarded compensation.
- Section 182 of the 1991 Act requires the undertaker to draw up and submit to the
Secretary of State a code of practice for the exercise of powers on private land.
- Paragraph 8 of Schedule 6 to the 1991 Act requires a person executing a power of
entry to produce evidence of his authority.
- Paragraph 10 of Schedule 6 to the 1991 Act requires an undertaker to secure
premises against access by trespassers as effectually as they were secured before the
exercise of a power of entry.
116. We would therefore ask for consideration to be given to the appropriateness of
including equivalent provision in relation to the temporary works powers in the DCO
(assuming that they are retained notwithstanding our Written Representations).
117. We also note that Schedule 12 of the 1991 expressly identifies depreciation in the value
of land as a separate head of compensation in respect of the exercise of works powers.
We would like to be assured that this is covered by the simple reference to “loss or
damage” in the current draft.
118. It might be interesting to note that the equivalent power in the recently published High
Speed Rail (London - West Midlands) Bill to that sought in article 35 of the draft DCO
is rather more narrowly confined. The power in the Bill (as contained in Part 2 of
Schedule 15) is limited to land which is both within the Act limits and within a distance
of 20 metres of the work to be maintained. Furthermore, it applies only for a period of
five years after the relevant work is brought into use.
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Requirements
119. The first point concerns not the drafting of the scheduled requirements, but the manner
in which they are given effect. The scope and effect of the provisions of a schedule
depend, of course, on the provision in the main body of the instrument by which they
are introduced. We have the following concerns:
119.1. To what extent do the requirements operate outside the Order limits?
119.2. To what extent are the requirements limited to the construction phase of the
project?
119.3. Even if the requirements could be phrased so as to apply post-construction, so
that the undertaker is required to comply with the Design Principles, the Code
of Construction Practice and the related plans, those requirements are not
designed to last for the life-time of the project. Policies and the needs of
society change over time. It would preferable if there was a requirement for a
maintenance plan to be submitted on the ten yearly basis, which would allow
for replacement or modified requirements to be attached and a consultation
process to take place in relation to specified activities.
120. We have addressed elements of those issues below.
121. The approach taken in the DCO is to attach the requirements to the authority conferred
by articles 3 and 4. This is, however, only part of the authority conferred by the DCO as
a whole. First, article 3 does not authorise any work outside the Order limits. Secondly,
there are a number of other powers exercisable within the Order limits which do not
depend on the development consent granted by that article. For instance, the combined
effect of articles 10 and 50 is that development consent is not required for street works
executed under the DCO. Powers such as that of temporary stopping up or traffic
regulation likewise do not depend on development consent. Indeed, works of routine
maintenance authorised by article 5 would not appear to depend on development
consent (leaving to one side the separate issue about works of maintenance potentially
amounting to development). Nor would any of these appear to rest on the “consent”
granted by paragraph (b) of article 3, in that the relevant articles appear to confer
entirely free-standing powers. Article 4, meanwhile, relates only to the operation of the
new infrastructure.
122. One reading of the present draft would be that the requirements are only intended to
apply in relation to works carried out under the authority conferred by articles 3 and 4.
This would leave considerable and, we presume, unintended gaps in the coverage of the
requirements. We accept that this is not the only possible interpretation of the wording.
The intention is probably that the scope of the requirements attached to articles 3 and 4
be assessed disjunctively from that of the positive authority granted by those articles,
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i.e. that the entitlement of the undertaker to carry out the development within the Order
limits, and then to operate the infrastructure, depends on its compliance with the
requirements across their full scope as determined on the basis of the wording of
Schedule 3 taken in isolation.
123. This would seem, however, a needlessly sophisticated approach to adopt (although we
accept that the Applicant has done no more than replicate the Model Provisions in this
respect). We consider that it would be far more straightforward, as a matter of drafting,
to deal with the requirements in a separate article, laying down simply that all activities
within the scope of the authority conferred by the DCO are subject to the requirements
in Schedule 3. (The term “authorised project” could be used on the current definition,
although not the one we have suggested in our Written Representations). If any
particular requirements are intended to be more limited in scope, this could then be
made clear in their individual drafting. This would, it seems, avoid any unnecessary
ambiguity or room for future dispute.
124. Turning to the drafting of the requirements in Schedule 3, two broad questions arise.
The first concerns the fact that some of the project-wide requirements are expressed to
apply only to the construction of the infrastructure, while the site-specific requirements
covering the same subject-matter are expressed to apply simply to the “authorised
development.” For instance, requirement PW6 applies the Code of Construction
Practice, Part A, to the “works to construct the Tunnel,” while requirement BLABF1
applies Part B of the Code to the “authorised development.” It could be said, therefore,
that street works carried out for construction purposes would attract the application of
both Parts of the Code but that the equivalent works carried out for maintenance
purposes would only attract Part B. There would not appear to be any obvious reason
for such a divergence. A similar issue arises in respect of the Design Principles:
requirement PW7 refers only to construction, while those site-specific requirements
which incorporate the Principles apply generally to the authorised development (e.g.
requirements BLABF4 and BLABF5).
125. The second, related question is that of why some of the requirements (including many
of the project-wide requirements) are expressed to apply to the “authorised project” and
others (including but not limited to most of the site-specific requirements) to the
“authorised development.” Again, there is no immediately apparent reasoning
underlying the choice of the respective terms. If the intention is to exclude ancillary
works from the scope of the site-specific requirements, this might undermine their
effectiveness. One example, already touched upon in relation to the proposed exclusion
of section 141 of the Highways Act 1980, relates to trees: there is an express power to
plant trees as an ancillary work, but the requirements to carry out work in accordance
with approved landscaping details are presently confined to authorised development.
Likewise, street works will not ordinarily constitute development, by reason of article
50 of the draft DCO. There may be other examples, although we have not carried out a
full analysis at this stage.
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126. We accept that the requirements are still a work in progress, and that some of these
issues might appear differently in the light of other changes which might be offered by
the Applicant. We draw attention to them at this stage so that they might be borne in
mind when further consideration is given to the drafting.
127. On a separate issue we anticipate that in the light of our review of the Applicant’s
submitted documentation, we will be seeking additional site specific requirements, and
these will be discussed with the Applicant.
PART 6 RESPONSE TO APP08 (Historic environment)
Question 8.3
128. Paragraph 3.1.3a: Both the English Heritage Inspector of Ancient Monuments and the
local planning authority should be initially notified in respect of works within the City
of London.
Question 8.12
129. Paragraph 12.1.4: The content of this paragraph is agreed. However, the 1960’s river
wall may include structures of Victoria Embankment where the two abut and Listed
Building Consent would be required where modern construction is attached to listed
structures, for example, Blackfriars Bridge and Victoria Embankment.
Question 8.14
130. Paragraph 14.1.5: This section of the parapet wall needs to be recorded, numbered,
and stored as appropriate for its re-use.
131. Paragraph 14.1.6: A method statement would be required for these works.
PART 7 RESPONSE TO APP11 (Noise and disturbance)
132. With respect to the Code of Construction Practice (COCP) Part A we anticipate that
our local authority colleagues in the London Boroughs of Tower Hamlets and
Southwark, who are taking the lead on the response to that issue, to co-ordinate
responses from all affected local authorities. We have no problem with the COCP
although we would highlight the following issues.
133. It is suggested in COCP Part A that there will be a liaison protocol. However for the
COCP Part B for Blackfriars Foreshore there is a note to the effect that the contractor
would be expected to apply in advance and agree demolition and construction method
statements. It should be noted that these will expect liaison arrangements to also
comply with the City’s Code of Deconstruction and Construction Practice edition 7.
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134. In COCP Part B, most matters will be dealt with through the same demolition and
construction method statements. On working hours, it is noted in COCP Part B that the
City Corporation normally applies quiet hours to these activities. The statement that
‘standard’ hours (from COCP Part A and Part B) will apply is not agreed. We would
expect to take a pragmatic approach and not apply these quiet hours unless it is
essential for the protection of existing businesses, but that is not yet agreed, as the
methodology can only be agreed with the contractor once appointed.
135. We agree with the amended Environmental Statement issued in September 2013. There
will need to be detailed discussions before there is agreement of the working hours and
methodologies employed in order to safeguard the City of London Boys’ School from
the impact of noise from operations in proximity to the School. Of significant concern
is the 2 months of piling (and cumulative impact of noise). The measures proposed in
the COCP are too general to confirm removal of the effects, and there will need to be
significant detail added in consultation with the School.
136. We accept the provision of 15 minute dBLAeq as representing a base level for ambient
noise. We would also like to see maximum noise levels recorded during these periods
so that these can be used to assess any works that are carried on outside of ‘standard
hours’. Given modern equipment we would expect this data to be readily available from
those undertaking the monitoring for the project.
PART 8 RESPONSE TO APP16 (Traffic, travel and transportation)
Question 16.1
137. The Applicant makes reference to a Transport Strategy that is to be delivered through
an agreed process secured through a requirement. However, we are yet to see the
suggested requirement, which is not presently included in the draft requirements in
Schedule 3 of the DCO.
PART 9 RESPONSE TO APP19 (Statement of common ground)
138. The initial Statement of Common Ground (SoCG) submitted by the Applicant has been
superseded as a result of continuing discussions and submissions. Our Written
Representations provide a more up to date note of the matters yet to be agreed or still
the subject of discussion. It is proposes that a revised SoCG is produced once we have
seen the Applicant’s response to our Written Representations, at which point the
matters outstanding between us should be clearer.
PART 10 RESPONSE TO APP25 (Draft s.106 agreements)
139. Discussions on a s.106 agreement are continuing and we are awaiting an updated draft
from the Applicant. We are reviewing their proposed protocol for closing or limiting
public access to the public realm, if necessary, to enable maintenance to be carried out.
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140. We are still in the process of considering the Applicant’s analysis of, and proposed
solution, to the problem of securing the performance of section 106 obligations where
the Applicant is not the owner of the land in question. In particular we need to be
satisfied that the powers under article 34 are sufficient for this purpose. At this stage,
we would like to reflect on the fact that the article 34 powers are temporary, and insofar
as they relate to land within the Order limits, limited to those works that have been
specified in column (3) Schedule 14 of the DCO. These may not necessarily cover
s.106 obligations.
141. We would also like to examine how the section 106 obligations may be secured through
the DCO. In particular we have to take account of the fact that the Applicant proposes
to transfer the benefit of article 34 to an IP, but cannot transfer the benefit of the
compulsory acquisition powers. Therefore we would need to understand how the
obligation to enter into a confirmatory deed (as referred to in paragraph 6.3) would be
binding on a transferee of the article 34 powers.
PART 11 RESPONSE TO APP26.02.02 (Minor Changes to the Application for
Development Consent – Blackfriars Bridge Foreshore)
142. In relation to paragraph 2.3.8 which refers to the scoping response dated 25th
October
2013, we would ask whether the revised documents consider the Millennium Bridge,
which was outside the scope of the original report.
143. In relation to paragraph 2.3.11 we would point out that the sheet piling will need to
provide support for our structure and we would be pleased to know where this might be
addressed.
144. We have some further brief points to make.
144.1. We would require all the sediment from dredging to be removed by river
transport.
144.2. The disclaimers on the HR Wallingford reports are such that we are not able to
rely on their information. This weakens their value.
144.3. We note that the reports do not cover the proposed piers’ interaction with the
existing river wall structure and integrated pipe (services subway). However,
provided that these works do not damage the existing structures or impose
additional loading (without corresponding strengthening works), these should
be acceptable.