The House of Lords Crossrail Committee gave various reasons for rejecting pleas for protection by residents. The Chair Viscount Colville said matters had not been requested earlier (they had, in the Commons and since), matters were not in a digestible form (they were but just ignored), petitioners were not presenting evidence by expensive experts (experts who had been used had faced suspended hearings and accused of libel by Alan Meale MP). All of this was despite hearing that the expert evidence presented by Crossrail in itself was contradictory and based on assumptions not proofs of evidence. Residents received no response after a final letter asking for undertakings was sent which pointed this out. A letter of how petitioners requesting undertakings were treated can be read below. Mr Colville did not want to allow London residents to have any of the following:

independent legal advice or monitoring

allowing Crossrail to remove statutory noise protections

leaving residents to protect buildings through a costly negligence case

refusing to give teeth to a Community Liaison Panel (CLP) it was so toothless that groups were not being given information and Crossrail were inviting groups and people that were not even affected by the scheme

one peer, some lady called Baroness Fookes suggested people should call the Police even though the Bill would make any action by Crossrail lawful

Colville seems to have forgotten what actually happened and is now saying:

"In Select Committee we discussed the involvement of local groups, which would discuss all the time how people would be affected as these matters proceeded, particularly during construction, which is what my noble friend Lord Low was talking about. That will be one of the most critical issues. Some local groups will be there, and are there already. I only hope that the Government and the promoters of this legislation will encourage other areas to set up functioning local groups to do exactly the sort of thing that my noble friend has been talking about: give notice of what is going to happen, and advise on how to get around obstacles and all the other problems that might arise from a temporary construction that may not be all that temporary. If the Government give a little encouragement to the setting-up and maintenance of local groups that involve themselves in these issues, it might almost be a better answer for my noble friend than anything in his amendment. is now referring to addressing concerns and including communities affected by Crossrail. But during petition hearings, Viscount Colville Ross did not want to give residents access to independent legal advice and certainly did not want to offer them legal protection from harm but did want them to attend meetings about Crossrail. Residents who were refused were accused of numerous things even though attendign meeting did not allow you access to full information or have a say in reducing harm from works."

Mr Colville did not want to suggest that Crossrail give what are called undertakings, which are legally binding and unenforceable.

Here is a letter sent to Viscount Colville and other Committee members. They rejected all the pleas and failed to explain their differential treatment of London residents who wanted protection from harm.
THE COALITION SUMMARY OF UNDERTAKINGS
INTRODUCTION - 21 MAY 2008
I UNDERTAKINGS
 A. Compliance with the law and powers granted to the Promoter are proportionate and in the interests of the public and taxpayers
 B. Legal advice of The Coalition is fully disclosed to the public and Parliament
 C. Undertakings with proofs of evidence that Promoter has and will “build on CTRL” implementing all recommendations by Planning Inspector in the CTRL Appeal
II THE LAW
 A. Comply with the EIA Directive produce comparative analysis on alternative Option B and the Wigmore Street alignment and consult
 B. Comply with the SEA Directive ensure least harmful options
 C. Comply with FoI and EIRs and provide full information and consult as required under the Aarhus Convention
III MITIGATION
 A. Adopt only Best Practice for the Code of Construction Practice and nominated undertakers in residential areas not reasonably practicable measures
 B. Fund for a legal and technical advice bureau run by representatives with mandate to represent affected parties
 B. Apply robust measures where Promoter seeks to disapply legislative frameworks (Health & Safety at Work Act 1973, the Clean Air Act 1993, the Environment Act 1995, the Control of Lead at Work Regulations 1998, the Control of Substances Hazardous to Health Regulations (COSHH) 1999, the Health and Safety Executive Guidance Notes EH 40/90 and EH 40/97 on Occupational Exposure Limits and vehicle emissions to follow the EURO standards set for several pollutants from different types of vehicles, PPG15, heritage and conservation laws)
 C. Comply with recommendations in the Control of Dust and Emissions from construction and Demolition Best Practice Guidance report November 2006
 D. Adopt measures in CTRL Health report by Fiona Adshead as recommended by Camden Director of Environmental Health
 E. Independent full condition surveys and assessment of settlement impacts on properties and geological assessments with a provision to compensate for any damage caused
 F. Use all anti-vibration track slab technology as applied on The West Rail project in Hong Kong
 G. Independent monitors for settlement, noise, vibration and pollution following best practice of Camden Council
 H. Justify the need for shaft sites in Hyde Park, Mayfair and Spitalfields. Promoter to provide all information supplied to fire and health authorities with dates on alternative shaft arrangements
IV PROTECTION MEASURES
 A. Reinstate Clause 21
 B. Right of redress if information presented by Promoter is factually incorrect or works are varied so as to be more harmful as per the NEWT principle
 C. Clear and ambiguous compensation in the event of breaches or any harm to property, life or other interests
 D. Rehousing measures in case of disturbance or harm to health or property
V COMMUNITY
 A. Abolish the role of the Independent Complaints Commissioner Professor Tony Kennerley
 B. Consultation rights for all affected parties under section 61 and schedule 7
 C. Community Liaison Panel (CLP) to be funded and run by affected parties following the working practices of tripartite groups in Camden not as suggested by the Promoter

CONCLUSION AND STATEMENT ON LAWFULNESS

The Coalition is advised to expect the Committee to produce a statement on the lawfulness of the Bill in relation to Article 6(2) Environmental Impact Assessment Directive, the Aarhus Convention and the Strategic Environmental Assessment Directive and the reasons to reject protection and mitigation in the form of undertakings. To date, the Promoter has refused to revise undertakings to address the concerns of petitioners. The request for access to independent experts to confirm the accuracy of information presented by the Promoter in relation to lawfulness, comparative analysis of alternative route alignments Options B and the Wigmore Street/Cavendish Square, the full extent of harm and the adequacy of mitigation measures, has been rejected.
The petitioning process has not allowed a full examination of all areas of concern. The legal advice produced on behalf of The Coalition outlines some of the concerns about what are seen as defects in the Crossrail Hybrid Bill, the process and the hearings to date. There has been a failure to address the examples of the Promoter providing contradictory information and the difficulty for petitioners to access independent experts in areas of dispute. However, during the detailed design, the information could be proved to be wrong or inaccurate and the Bill itself may be implemented in a completely different way to that which would be intended by a best practice nominated contractor. Much of the assumption-based evidence has not been challenged or scrutinised with evidential proofs. For example, the Promoters of Crossrail have compared themselves with CTRL and provided an assurance to build on CTRL but have since sought to resist measures that offer the same level of protection. Counsel for the Promoter when comparing Crossrail to Network Rail on the Airdrie railway said the safeguards are “in substance, the same, or possibly a little less comprehensive, than what we are doing”. The Promoter did not provide any proof of this and nor was it requested and petitioners were left to point out that the Crossrail settlement deed does not offer the same protection. This means assumption-based evidence has been accepted as fact or as baseline data and the Committee have refused to provide a remedy should the information of the Promoter prove to be incorrect or the terms of work are varied so as to cause any detriment. Instead, the Committee has simply relied on the correctness of the information presented by the Promoter by asking their experts. Petitioners believe that undertakings are reasonable in the absence of detailed design, proofs of evidence and independent experts. To-date, the Committee has rejected such requests. The Select Committee has made no provision in the case of unforeseen events such as the serious accident in West End, which led to a man being hospitalised.
The Promoter has negotiated £2mn loan for historic ship SS Robin and a compensation package for historic Smithfield Market and undisclosed agreements with others yet is seeking to apply minimum standards in residential areas and refusing to address the concerns through compensation and best practice measures. Petitioners are very concerned that the Committee in line with the Promoter only appear to be concerned about needing to keep costs low in relation to the mitigation of harm for members of The Coalition and not the wider project costs. The Lords Committee has rejected recommending reasonable undertakings requested by petitioners to protect residential and conservation areas in stark contrast to the CTRL Select Committee. Instead, residents in affected areas will be subject to what they believe is unnecessary risk of harm from the Crossrail project in stark contrast to CTRL. The undertakings sought in this document are minimum requirements and do not represent the full concerns of The Coalition. The Promoter has argued that the Bill must not be delayed. However, the petitioning process is not just about getting a Bill through but ensuring that risk, harm and disturbance will be minimised and compensation will be made available in the case of harm. To date, the petitioning process has failed to meet legal and moral obligations.

COALITION UNDERTAKINGS
Email:  crossrailcoalition@googlemail.com
21 MAY 2008


1 ROUTE ALIGNMENT AND SHAFT SITE CONSIDERATIONS

The Promoter is arguing and asking the House of Lords Select Committee to accept the following: There is no duty to consider alternative routes, which form part of the scheme, there is no duty to provide evidences of proof on matters of dispute which question the reasons as presented by the Promoter for dismissing what petitioners contend are viable alternative routes, there is no duty to explain the presentation of contradictory evidence and there is no duty to consult petitioners on route issues even if information has been disclosed subsequent to petitioners being permitted to raise such issues.

2 BEFORE THE COMMITTEE MAKES ANY DECISION:

Independent legal and other experts should address areas of dispute relating to the selection of the route and lawfulness including compliance with the Environmental Impact Assessment (EIA) Directive and the Strategic Environmental Assessment (SEA) Directive. Any remit for legal advice should have due regard to the law, proper standards for scrutiny of evidence presented and best practice as applied on reputable projects such as CTRL and the Jubilee Line Extension. This is a public interest project using public monies and such advice should be made available to the public. The statement made by Michael Schabas at the House of Commons hearings on 18th April 2006 and the suspended 31st January 2007 that the Promoter followed the safeguarded route and refused to consider alternative routes has been corroborated by the Eastern Portal Bow Triangle report 2001. Appendix A, the Client Brief from Mr Berryman says, “the safeguarded designed alignment should be utilised as far as and including Liverpool Street Station but should be optimised further East.” Documents disclosed to the Residents Society of Mayfair and St James’s by the Promoter confirm the Promoter followed a predetermined safeguarded alignment and rejected the Wigmore Street/Cavendish Square alignment, which offers considerable savings to the “public purse”.

The petitioners believe that the proper consideration of the evidence on alternative route alignments will show that the Promoter rejected optimum solutions with the least environmental effects in favour of the predetermined safeguarded route on the central section; petitioners have not so far but should be given a proper opportunity to scrutinise evidence on alternative routes with the promoter with advice from reputable independent rail experts; that if alternative route options do provide better alignments than the Hybrid Bill route based on the Promoter’s own criteria and as required by law then an Additional Provision or Transport and Works Act is introduced to move the route alignment in order to comply with EU law and minimise risk, harm and disturbance.


Request for Select Committee to provide Undertakings denied by the Promoter

Notwithstanding the presentation of substantiated reasons for any decisions relating to the lawfulness of the Crossrail Bill and selection of the hybrid bill route, petitioners request the following undertakings to ensure that noise, vibration, settlement and dust impacts are minimised and residents are compensated for any harm or breaches of conditions. The petitioning process makes no provision should any of the information presented by the Promoter prove to be wrong or inaccurate. Presently the Promoter has not offered undertakings, which guarantee or compensate against the harm it alleges will not occur and does not provide any reasonable argument supporting the failure to provide such undertakings. Indeed, petitioners hope if the Select Committee have such faith in the Promoter, they will ensure this Bill does not gain passage without the provision of undertakings to afford the highest form of protection in residential areas. Counsel made it clear that petitioners had no confidence in the Borough of Tower Hamlets and Westminster. In response to these concerns, the Chair referred counsel Alex Goodman to the generic agreements between local authorities and that “there should be common ground and a common approach as between all the local authorities” in relation to concerns that Clause 21 removed the possibility of independent redress and remedy as per para 12819. However, this was not correct and the Chair then admitted that the generic agreements of Tower Hamlets do not deal with harm but employment as per para 12958. Counsel for the petitioners made it clear that they do not have resources or access to independent experts although the Select Committee has heard evidence of defects and inconsistencies in the information presented by the Promoter. Neither the Crossrail Bill, supporting documents or the petitioning process itself has made provision for independent experts or the proper scrutiny of information presented by the Promoter so it can be tested with proofs of evidence.

The Committees on the Channel Tunnel Rail Link (CTRL) moved the rail route alignment away from residential areas to minimise risk, harm and disturbance. Petitioners believe they should have a right to have a comparative analysis to evaluate detailed design impacts arising from the Crossrail scheme prior to the Bill gaining Royal Assent. The Crossrail Bill only offers reasonably practicable measures when petitioners, most of whom are residents, have reasonably requested the use of only best practice methodology for all works and operations in residential areas so as to minimise risk, harm and disturbance. Petitioners are concerned that they have not been consulted about the Code of Construction Practice and the protections offered are not even comparable to CTRL and yet the assurance given by the Promoter was “to build on CTRL”. This is an example of how an assurance can simply be ignored unless backed up by undertakings. This is why petitioners have requested undertakings as they can be legally enforced. The Code of Construction Practice offered by Crossrail falls far short of the protection and detail provided in the 103-page CoCP report for the Construction of Airdrie Bathgate Railway and linked improvements (hereafter referred to the Airdrie CoCP).1

3 CROSSRAIL STATEMENT TO “build on CTRL”
a. The CTRL Committees moved the route alignment away from residential areas to minimise and remove risk of harm and disturbance. The Crossrail Code of Construction Practice should be no worse than the Channel Tunnel Rail Link and, indeed give greater protection if it is to build on CTRL. Counsel for the Promoter says it follows the spirit of Airdrie but we believe the Promoter should therefore be in a position to provide an undertaking following the ‘NOTE ENVIRONMENTALLY WORSE THAN” NEWT principle in relation to the Airdrie CoCP.

b. In the CTRL Planning Appeal Inspector reference APP/X5210/CTRL/03/20, hereafter referred to as the CTRL Appeal2, the Planning Inspector deemed it necessary to know as per para 10 the [construction arrangements] have to be sufficiently well defined to enable a proper assessment of their likely impact to be made. The Planning Appeal in Camden was therefore concerned about any failure to supply details of works before being able to consider impacts. Two factors are pointed out by the Planning Inspector at para 12 NEWT the first concern for petitioners is where the “undertaker of the project is obliged to adopt a variation because of a change in ‘the external circumstances of the project or any assumption explicitly made by the Environmental Statement or information explicitly taken into account by the Environmental Statement was not factually correct” The WHRA gave examples of the Promoter’s information about the tunnelling strategy leading to delays and making the project unviable was later proved to be incorrect. The Select Committee has failed to provide a remedy for the possibility that “any information that has been provided in this House or the other House turns out to be incorrect and harm is suffered, and we believe there are no adequate compensation provisions for that” as stated in para 11883. Please can the Select Committee state what remedy will be available when conditions are varied or the information provided to petitioners proves to be factually incorrect?

c. The health impact study produced by Crossrail has been criticised by residents and professionals including the evidence of GP Dr Jeff Safir. There are concerns about any adverse impacts on the NHS medical centre in Mayfair. Petitioners require the Promoter to incorporate all lessons and recommendations following from the Health Impact Study and findings of CTRL Proof of evidence report of Dr Fiona Adshead, Director of Public Health, Camden Primary Care Trust Planning Inspector reference APP/X5210/CTRL/03/20, hereafter referred to as the CTRL Health Study3 Furthermore, it is noted that the Committee refused to hear a passage where at a Camden Council Cabinet meeting specifically agreed to the recommendation of the Director of Environmental Health to continue paying for the study so the evidence can be used in future.4 There is concern that the health study undertaken by CTRL is not being used and the Select Committee seem reluctant to use its findings and recommendations to protect the well-being of residents.

According to the Ove Arup report dated 11 June 20055, Dr Keith Bower said CTRL gave the following two undertakings:

d. There is no reason why Crossrail should not establish the same settlement impacts, which apply to both tunnelling and other works such as shaft construction as per para 5.4. As an illustration the CTRL project provided commitments amounting to the use of best practice in construction and an explicit commitment to the House of Lords to make good any [NOTE ‘ANY’ NOT ‘MATERIAL DAMAGE’] settlement damage to third party assets at no cost to the owner.

e. The CTRL project also committed to the principle that any change to the scheme after the Parliamentary stage should be “Not Environmentally Worse Than” the base case in the original environmental assessment of the scheme. This is known as the “NEWT” principle. What remedy is there if the information provided by the Promoter proves to be far worse than suggested? In the case of Crossrail, most of the information about the environmental impacts has been left to what is called the “detailed design”. Therefore the detail of impacts will not be known after the Bill gains Royal Assent – Petitioners therefore request a remedy giving the right to review any information about likely harm and impacts

4 CODE OF CONSTRUCTION PRACTICE IN RESIDENTIAL AREAS
In the absence of information on the detailed design and being consulted on the CoCP, petitioners request the following:

a. The provision of a Construction Control proforma to record all details of construction operations with supplementary monitoring to provide an instant check on for example, wall displacements.

b. The use of only industry standard best practice measures in residential areas affecting petitioners.

c. Only the use of nominated contractors with a proven track record of operating safely in sensitive areas should be permitted in residential areas

d. Further protections should included monitoring of noise, pollution, vibration and settlement, record of all complaints and responses and times, record of any damage and inspection times with information and record of breaches of conditions

e. Clear and unambiguous compensation package for breaches of the Code of Construction Practice payable to affected parties


5 AIR QUALITY: DUST, DIRT AND POLLUTION
The Air-Quality information produced by the Promoter makes no mention that the UK particularly the Department for Transport (DfT) has been criticised for its approach to pollution. The Promoter also makes no mention of a new EU Directive on Air-Quality that will be in place by the time the Crossrail works take place but for which the Committee makes no mention or provision. Petitioners request the full implementation of the recommendations of the report on the Control of Dust and Emissions from construction and demolition Best Practice Guidance report, hereafter referred to as the pollution report, which has been produced in partnership by London Councils and the Greater London Authority. Dated November 2006 Emissions from Construction Industry Sites.6 This report says “using Best Practicable Means (BPM) could be used as a defence from prosecution under s80 of the Environmental Protection Act 1990 [These are statutory nuisances for which, a council must take action].” The Olympics will comply with the recommendations in this document. Will the Select Committee provide reasons why there are no recommendations for the Promoter to apply best practice in relation to the monitoring of air quality and mitigating pollutants to the standard of the EU Directive and the pollution report above?

The Promoter’s air-quality note is defective as it considers major arterial road Commercial Street while carefully avoiding evaluating the quieter narrow residential roads in Spitalfields. The roads in the densely populated part of Spitalfields are narrow and noise and other pollutants carry. The traffic models for Spitalfields and Whitechapel, referred to by the Promoter but never presented in Committee, have never been provided to petitioners and the monitoring data show that air quality in Tower Hamlets is some of the worst in the country. Some measures to reduce such air quality impacts include the use of mains or battery electricity for all vehicles. There is no evidence to back up the promoter’s claim nor has the promoter deemed it necessary to carry out any assessment of present health problems in Spitalfields despite the evidence of Dr Jeff Safir and the figures produced for other areas such as Mayfair are absent of impact reports. In addition, the London Borough of Tower Hamlets has a very poor record on enforcement as heard in evidence and at public meetings attended by residents. The Airdrie CoCP acknowledges that dust nuisance is most likely to affect properties within 100 metres of the railway. To this end, we request the following undertakings:

a. As with the Airdrie CoCP1, contractors must comply with the Health & Safety at Work Act 1973, the Clean Air Act 1993, the Environment Act 1995, the Control of Lead at Work Regulations 1998, the Control of Substances Hazardous to Health Regulations (COSHH) 1999, the Health and Safety Executive Guidance Notes EH 40/90 and EH 40/97 on Occupational Exposure Limits and vehicle emissions to follow the EURO standards set for several pollutants from different types of vehicles.

b. Implement all recommendations in the pollution report, which has been produced in partnership by London Councils and the Greater London Authority. Dated November 2006 Emissions from Construction Industry Sites.

c. An Air Quality report produced by Camden Council in 20057 found the following: Although road traffic is the major source of emissions in London, dust emissions from construction sites are still an important factor affecting local air quality. Recent research has shown that PM10 concentrations at 1/4 of London monitoring sites may be affected by local fugitive sources such as construction sites or road works, leading to breaches of the EU limit value. The main motive behind monitoring sites is therefore to identify whether there are additional particulate problems associated with the works and to minimise any harmful impacts on residents and local workers. Incorporate all best practice methodology and monitoring as outlined in the 2005 Air Quality report as implemented by Camden Council.


6 SETTLEMENT, TUNNELLING AND ASSOCIATED WORKS
Presently the settlement data produced by the Promoter is not accepted by petitioners and has even been shown inaccurate in relation to the assessments of listed buildings in Spitalfields where according to the Promoter’s response they have been most careful. Furthermore, Dr Keith Bowers questioned the reliability of the geological assessments carried out in Spitalfields see 3.13 as well as the risks of settlement from tunnelling near the Lambeth Group and London Clay groups see A70 in the Arup report.

The Coalition is advised that the Mott MacDonald report Tunnel East of Liverpool Street Station Feasibility Volume 1 February 20028, hereafter referred to as the 2002 Mott MacDonald report, is correct when it says: “It will be essential in any future consideration of the proposed tunnels to address this topic based on the specific alignments, profiles, tunnelling methods and lining types for the tunnelled route, and to investigate the various types and categories of buildings and services likely to be affected by the tunnel construction…A study to ascertain which of the buildings, services and other tunnels likely to be most at risk from the tunnel construction should be carried out, following by a condition survey of this infrastructure, before any construction work commences. During construction, a monitoring, response and protection programme should be implemented…The Ansettle Program is based on the empirical assumptions of Schmidt (Gauss Curve) and the Boscardin and Cording work in 1989 for building assessment. This assumes that the shape of the settlement trough is not affected by the stiffness of the building…In general the magnitude of the settlement will require systematic building assessment along the route, with mitigation measures proposed for structures at risk. Train induced noise vibration impacts for a new line or increased service need to be considered carefully. The perceived or actual nuisance caused can generate significant local challenges. The shallower tunnels will generate more nuisances than deeper tunnels, and the extent of the problem should be assessed in detail during the design stage. Mitigation measures to be considered during the design stage could include deeper tunnels, anti-vibration track slab and installation of double-glazing and solid doors on affected properties.”

The above information on settlement as contained in the 2002 Mott MacDonald report is absent from the Bill documents and yet was available and known in 2002. A letter from Camden Council9 to CLRL agrees with concerns expressed by petitioners in Hyde Park, Mayfair, Spitalfields and Whitechapel about the failure to provide adequate mitigation and protective measures for heritage and conservation areas. The letter is dated 2005 and yet the Promoter has carried no assessments that would address such concerns. It is of course in the interests of the Promoter to say there are no risks but such a statement should then be accompanied by detailed design evidence, guarantees or compensation especially as it affects people’s homes. Instead the Promoter has taken the opposite approach and sought to limit liability rather than extend protection by the use of terms such as only agreeing to make good “material damage” and only after this has been substantiated at great cost to the affected party. The Committee has neither heard nor requested information about how different buildings with variable stiffness would be affected by settlement and are presently therefore only considering one half of the settlement story. Dr Bowers of Ove Arup even questioned the geological assessments produced by the Promoter and so there are many concerns in relation to damage, defects and deterioration impacts caused by Crossrail. The proposed excavation and tunnelling of the main running tunnels and of station tunnels is likely to have adverse settlement impacts which may cause damage to buildings and structures. Your petitioner has general concerns about those impacts on buildings in the Borough, and particular concerns as regards certain categories and areas. The matters of particular concern are firstly listed buildings above the running tunnels and station tunnels, secondly properties which are historic and not listed and thirdly those that were built without Building Regulations approval. The nominated undertaker should be required to provide, in advance of commencement of tunnelling, details of expected impact on every building in the three categories within the zone of influence of underground works. This information should be supplied to your petitioner, building owners and other interested parties as appropriate, and should be accompanied by a statement of the method by which the impact is to be monitored before, during and after construction.

The Promoter who is only offering compensation for “material damage” wants petitioners then to be responsible for substantiating the cause of the limited “material damage” without any independent assessment of surveys on listed properties, no surveys on non-listed properties and without taking into account varying levels of stiffness or cumulative impacts. Petitioners will therefore be left to fight a negligence case as can be seen by the Promoter’s responses on settlement questions 79,8010. It should be noted that the conclusion of the HSE enquiry into the collapse of ground at Lavender Street, Stratford on the CTRL on 8th February 2003 was that “the investigation has not identified a clear explanation for the progressive collapse that occurred on 8th February”. More recently an accident took place in the West End for which we have no heard no evidence presented by the Promoter to this Select Committee and no recommendations have been made to make the findings public. The nature and circumstances of the accident and the health and safety implications have not been subject to any proper or peer reviewed evidential scrutiny in the petition hearings. There is a general concern about the safety and health and well-being Construction and Design Management of this project as the petitioning process and the Select Committee to date has made no provisions in the event that the information presented by the Promoter prove to be inaccurate or unforeseen events arise. Further concerns about the studies consist of the Promoter’s failure to show construction investigation with regard to the correlations between soil characteristics deduced from in situ and laboratory tests and the real soil behaviour (derived from monitoring of real constructions as referred to in the GeoTechNet report produced with European experts and Arup Geotechnics.11

Independent experts should be advising petitioners and this Select Committee on this matter as there is no duty on the local authority to undertake assessments and provide information on impacts on non-listed buildings in this regard. Petitioners do not believe any members of the Select Committee have sought to remedy this failure in either House. Petitioners ask the Select Committee to provide evidence showing that there will be no risk of adverse effects on grounds, buildings and health and safety in residential areas. Crossrail are keen to make comparisons with the Jubilee Line Extension (JLE) trains but the diameters of the Crossrail tunnels and trains are larger and more comparable with that of the Channel Tunnel Rail Link. However, even in the case of the JLE, sensitive historic buildings were harmed.12 The Promoter’s deed of settlement D12 makes no provision to pay for anything other than material damage. Settlement damage to the tune of £2million was conceded in relation to the Jubilee Line Extension but no payment was made as court cases can take many years.12 Such incidences in the petitioners’ area will lead to hardship brought on by disproportionate interference caused by this Bill as a direct failure of providing adequate protective measures. A petitioner that is left in the position of having to substantiate damage will have to engage in a costly and prohibitive negligence case. This is expensive and prohibitive and would lead to hardship. The Arup report at para 5.4 say: “It would be reasonable to argue that CLRL should commit formally to at least industry standard methods of damage risk assessment and control. Similarly it would be reasonable to seek a commitment that any damage caused by the works should be put right at no cost to the property owners affected.” The Promoter has not inspected non-listed historic buildings or structurally susceptible modern buildings and therefore cannot know the impacts on structural features and defects. At para 12951 Ms Lieven says: “Mr Berryman will go into the witness box in a minute and explain that the safeguards that Network Rail are giving on the Airdrie railway are, in substance, the same, or possibly a little less comprehensive, than what we are doing.” Petitioners would rather rely on the wording of the Airdrie document as they reject the submission that Crossrail are offering something more comprehensive as suggested by Lieven. The settlement studies makes no assessment of buildings in terms of existing features and defects. The failure to make such assessments leaves them carrying a disproportionate risk. Petitioners have considered the Network Rail CoCP1 and therefore seek the following undertakings are sought to ensure that the proposed works do not cause harm to buildings in the conservation area and to seek minimal ground settlement and proper compensation for loss.

a. As in 8.2 of the Airdrie Code of Construction, before commencing any construction works, the Project Manager will prepare a schedule of buildings and other structures assessed as being within the zone of influence from engineering work. The schedule will identify those properties which may be at risk from ground movement (settlement or heave), problems arising from blocked drainage or vibration arising from the construction or operation of the railway based upon the final design and method of construction for the railway works. The Project Manager will appoint in the joint names of the Project Manage and the interested party, a reputable firm of Chartered Surveyors or Engineers approved by both parties to prepare a defects survey of each building, structure of major utility which is identified in the schedule of properties within the zone of influences as having a risk of damage.

b. As in 8.3 of Airdrie CoCP after the construction works have been completed and at any time up to two years after the opening of the railway to public traffic, the interested party may, upon providing the Project Team with objective evidence of damage (for example, a photograph) request that a second defects survey is undertaken. This will take the same form as the first survey and be undertaken by the same firm of Chartered Surveyor or Engineers at the project’s expense. Any identified damage must be repaired within reasonable time and returned to the standard of repair and stability prior to the works.

c. As in the Mott McDonald 2002 report, systematic building assessment along the route, with mitigation measures proposed for structures at risk or buildings, which have not been accounted for in terms of differential movement.

d. As in the Mott McDonald 2002 report, mitigation at design stage should following consultation with independent experts include deeper tunnels, anti-vibration track slab and installation of double-glazing and solid doors on affected properties.

e. The use of the industry best standards for all tunnelling activity with nominated contractors with a proven track record in safety and protection of sensitive areas

f. The use of best practice systems including the industry accepted Observational Method monitoring systems as outlined in 3.6.2 of the GeoTechNet report produced with European experts and Arup Geotechnics. Geotch

g. The provision of a Quality Plan, which shows the designers predictions based on a defined construction sequence and which includes trigger values for the different stages of the construction sequence.

h. The provision of independent monitors experts for noise, vibration, pollution and settlement

7 FLOATING SLAB
Floating slab track costs £467 per metre more than standard track and for 4.17km of the route it will add £2m to the cost of Crossrail. Presently, the Promoter only intends to lay slab track underneath Soho, the Barbican Hall and Bow in East London. The use of floating slab track technology has been denied in residential and conservation areas. The refusal to consider floating slab track in residential areas is contrary to best practice measures supported by the Mayor and international railway projects in residential areas.
The Crossrail proposals are at odds with 4b of the Mayor’s Ambient Noise Strategy13, which specifically deals with track type and quality and building insulation. 4B Railway Noise, which forms part of the Mayor’s Ambient Noise Strategy, says it will be generally be less costly and more effective to noise and vibration control measures to be incorporated from a very early stage in programmes and projects rather than added as remedial actions. There is not sufficient evidence to show people will not be affected by the operation of the railway and certainly some of the curvatures suggest that the protection is inadequate. However as the Promoter has selected a route tunnelling under residential property it seems reasonable to request an initial outlay of money so full protection for residential homes so maintenance and other problems are minimised. Paul Eade14 of Acoustic Designs in his article on railways noise and vibration issues says: “Sites exist where vibration can be felt in the ground at over a hundred metres from the railway and the sensation…feelable vibration can however still be produced if the building usually the floors exhibit a resonant response.” It is odd that the former Mayor Ken Livingstone says in the Ambient Noise Strategy 4b.1 that he is a consensus around creating a world-class transport system but sought to deny residents protection under his flagship project Crossrail. The Coalition is advised that “Slab track reduces the noise by about 30-35dB and was last used in the UK in 1996 on the tube.” Please can the Committee explain failing to support London densely populated residential areas that are requesting floating slab track measures when the Mayor’s Ambient Noise Strategy on Rail Noise supports it?
The Hong Kong West Rail Project used floating slab tracks (FST) bearings designed to support heavy precast concrete slabs on which the rail was attached to meet critical and design requirements for Hong Kong as one of the most densely populated cities in the world.
Please can the Committee explain why petitioners in densely populated areas of London are being treated less favourably on a £16bn project given that Hong Kong uses floating slab because it is one of the most densely populated cities in the world?
The Coalition request the following undertakings:
a. The laying of floating slab underneath all residential properties in Hyde Park, Mayfair, Spitalfields and Whitechapel.
b. Resilient baseplates, ballast mats and full floating slab systems on pre-cast concrete slabs on continuously welded track should be a minimum requirement in residential areas.

c. Such mitigation must, in addition, be extended beyond the boundaries of affected properties due to the carrying of noise and vibration effects. We refer you to example of the use of resilient basepads/bearings being used to dampen vibration and noise from railways see:  http://www.railway-technology.com/contractors/noise/getzner/

8 SPECIFIC SETTLEMENT MEASURES

a. To produce further assessments of all listed and historic buildings after an internal inspection and a full structural survey of each property likely to be affected in and just outside the zone
b. A full geological audit to properly assess settlement and protective measures.
c. All protective measures are agreed with the petitioners. To provide a direct form of redress known as a collateral warranty from those who have prepared all reports on settlement and noise and vibration for the promoter in favour of the petitioners
d. That any damage defect or deterioration caused by the project (as set out in the settlement policy of CTRL see the Arup report), which includes without limitation the construction of the tunnels, any engineering mitigation measures such as dewatering, and any vibration by construction traffic or from the operation of the trains should be made good at the promoter’s cost to the owner’s satisfaction and that such undertaking should extend not just to the fabric of the building itself, but to any contents which are damaged. That the undertaking to repair or rectify should not be limited to “material” damage but any damage defect or deterioration caused
e. That the promoter should pay for suitable accommodation should the owner have to relocate during any period of repair or damage that affects their quality of life.
f. That the undertaking should include the remedying of any existing defects, which are worsened by the project.
g. That the owner should not be required to obtain competitive quotes for repair, bearing in mind that these buildings are specialist and that the market for those specialists is extremely limited. That the owner should not have to wait for the work to be carried out by the Promoter but should be entitled to carry it out itself at the Promoter’s cost; that all costs incurred should bear a penalty rate of interest if not paid to protect the petitioner from having to incur cost and have a delay in obtaining reimbursement
h. That all reports made by or on behalf of the promoter should be subject to verification by the owners’ own engineers appointed by petitioners at a cost to the promoter.
i. Independent monitoring takes place for 5 years before construction
j. The streetscape following construction of the shaft should be enhanced in a manner appropriate to the conservation area in like for like manner including materials quality appearance and workmanship
k. Best practice construction methodology is used to minimise settlement and any other adverse impact and that a statement of methodology is agreed with the petitioner before works start
l. All third party costs incurred by the petitioner are paid by the Promoter
m. The Promoter provide a fund for petitioners to appoint independent heritage structural engineer to consider impacts

9 NOISE AND VIBRATION
To ensure that the noise and vibration impacts of the railway do not detract from the peace and well-being of the petitioners:
a. The highest form of accepted noise mitigation for the residential and commercial properties in the vicinity of all worksite and on traffic routes with monitoring stations approved by best practice methodology accepted in the Borough of Camden
b. Monitoring of noise and vibration measures on types of buildings in residential areas and any likely impacts on settlement or quality of life following best practice models adopted by the Borough of Camden.
c. Projective measures in terms of track design and other suitable measures to ensure that noise levels from the operating of the trains do not exceed 25dcb
d. Compliance with the Mayor’s ambient noise strategy and part E of the building regulations


10 COMPENSATION AND BLIGHT PROVISIONS
At a meeting between the CLRL and the WHRA on June 6th 2006, CLRL's operational property manager Geoff Bailey to discuss mitigation, protection and compensation measures. Mr Bailey referred the WHRA to discretionary hardship policy reference C8. Mr Bailey said several people had applied and none had qualified. The promoter rejected the proposed compensation scheme for Central Railways15, which is viewed as a benchmark for fairness. The promoter said Crossrail only propose to comply with minimum statutory requirements. The UK law has been severely criticised for being unfair in relation to compensation and the Committee can remedy this. In Rome and in other European countries, full consequential damages are payable in the event of harm. We further submit that any works in such close proximity to the petitioners’ areas will result in a considerable reduction in the value of these properties and will make the habitation of these properties extremely unappealing to any potential purchaser or other party should we attempt to sell or rent our properties. Should the promoter not agree to this, would the Committee make recommendations for those not able to purse a claim against the Promoter to compensate them for the loss in property value/assets that they will incur should this project be approved?

a. Provision of compensation scheme following the best practice model of Central Railways (see comparison between CTRL v Central Railways attached doc 14)
b. Blight provisions following those of Union Railways
c. Provisions for petitioners to appoint independent condition survey experts pre, during and after works at a cost borne by the Promoter
d. Compensation for all types of damage not just “material damage”
e. Provision for any damage for instance if a building is deemed to be uninhabitable because of any aspect of this Bill
f. Provision for consequential losses
g. Discretionary hardship policy must provide the ability for affected petitioners to be legally entitled to hardship if the Crossrail works are likely to or will impact on or be injurious to their health, well-being and ability to work or carry out their vocation


11 REHOUSING
A further concern in relation to the protection afforded for health impacts relates to Crossrail’s rehousing provisions. During the meeting with the WHRA on June 6th 2006 CLRL’s operational property manager Geoff Bailey said only one person was rehoused during the Channel Tunnel Rail Link. You will note this was despite complaints and a referral to the Planning Inspector. The attached Planning Inspector’s report outlines that some people stayed with other relatives but some had no choice and suffered the impacts of living close to the sites. It will be noted that Mr Berryman said how well CTRL worked under Professor Tony Kennerley without any calling of witnesses or experts. Camden Council director of the Environment said the following about the CTRL health impact study.14 the health impact assessment could continue, to enable the resulting evidence to be used in future. Councillor Stewart also requested that the Director put pressure on the Primary Care Trust for it to continue funding the assessment. Yet we see no undertaking that the findings and recommendations of the CTRL health impact study will be taken on board by the Crossrail.3
a. Re-housing or compensation provisions to be made and agreed with petitioners representatives in the event of harm to health and home, noisy operations or other works carrying risk to health and safety.

b. Special provisions for vulnerable sectors including aged, those on means tested benefits, those living in social housing or on low incomes.


12 COMPULSORY PURCHASE AND DEVELOPMENT

If any aspect of the building of this railway can be shown not to be for the purposes of not building a railway and instead for the ancillary purposes of development, petitioners reserve the right to bring an action against the Promoter and any parties that have withheld this information from the public and petitioners and seek appropriate remedies for the disproportionate interference with property rights.

a. Any development rights in petitioners areas to be secured for the benefit of affected communities only and to be used for improvements in their areas
b. No compulsory or temporary acquisition of properties by or on behalf of the Promoter or developers for the purposes of development rather than building a successful railway.
c. Any monies secured from any ancillary form of development rights secured in undertakings or agreements reached in or outside the Committee rooms to only offset any underwriting liabilities incurred by London taxpayers and farepayers for Crossrail. If not this should be actionable by law as a recoverable cost for all London taxpayers and farepayers on an individual basis.


13 TRAFFIC AND NOISE
Reputable councils such as Camden avoid consents for allowing HGV traffic down streets where there are likely to be a danger whereas a road with three schools was a preference of officers at Tower Hamlets Council. The Committee does not appear to believe the health and safety of children at local schools requires input from local residents and does not appear to have requested evidence of traffic impacts on a road with three schools where two children previously died. There is no consideration of the traffic impacts on the NHS Medical Centre in Mayfair.
a. Monitoring and mitigation of all harmful traffic impacts
b. No on street loading/unloading
c. Constant supervision of traffic to ensure the safety of pedestrians
d. No floodlighting in hours of darkness
e. Best practice environmental protection from dust and pollution including enclosure of work site and sheeting of all lorries
f. Speed restriction on all lorries
g. No queuing to access the site by traffic
h. No wheel-washing outside the site
i. No construction activity before 8am or after 6pm other than below ground tunnelling
j. No access at all to the site before 7am and no access at all by lorries before 8am or after 6pm weekdays
k. No weekend working or deliveries
l. Compensation for loss of revenue suffered by the commercial properties affected
m. Ensure no lorry routes along streets with health facilities or schools or no HGV movements past schools at the beginning and end of the school day and at lunchtime and monitoring of impacts on health and achievement


14 NOTIFICATION OF WORKS TO RESIDENTS
Project Manager must be appointed in residential areas and must provide the following:

1. A full description of the work to be carried out
2. Measures that will be taken to control noise or other disturbance
3. Measures for any risks and mitigation measures
4. The proposed hours of working
5. Step-by-step guide to register complaints including contact details
6. Information about hotline
7. Monitoring of complaints and disturbances arising from any works

15 REMOVAL OF STATUTORY REGIMES
a. The Crossrail Bill contains provisions which provide outline planning permission for the development authorized by the Bill and misapply a number of other statutory regulation regimes which would normally apply in relation to construction and associated works which include but not exhaustively the listed buildings and conservation area controls in the Planning (Listed Buildings and Conservation Areas) Act 1990, the Control of Pollution Act 1974 and the Lorry Ban. Your Petitioners want undertakings if any statutory controls are to be removed or suspended, they are replaced by a robust alternative approval mechanism in each case, in which your Petitioners and independent experts appointed at a cost to the Promoter play a full part and have a right of appeal outside local authorities.

b. The highest form of mitigation measures for any consents which conflict with industry standard best practice policy or legislation, existing or due to come into effect. This should include best practice policies for example on rail noise, the Mayor’s ambient noise strategy and the new EU Directive on Air Quality.

16 IMPACTS AND COMMUNITY LIAISON PANEL

Crossrail have been very unsuccessful with community relations but they can learn the lessons from successful schemes, which reformed their approach by including communities to foster both trust and constructive dialogue through the provision of full information and involvement in mitigation measures.
1. The Community Liaison Panel should be provided with a single person to liaise as with the Airdrie CoCP, which followed the National Standards for Community Engagement (NSCE). Please can the Select Committee specify which Code Crossrail Community Liaison will follow? At Airdrie, the Project Communication Manager (PCM) will facilitate these forums, the purpose of which will include: • providing a face-to-face dialogue between the project and local communities • review of works to date • community feedback to date • delivery of new information on forthcoming works • consultation prior to new works; • integration of ideas from local communities; • ideas for involving local communities • determining the frequency and content of project newsletters. • Results of noise and dust monitoring • review the Landscape and Habitat Management Plan • agree date of next forum • discuss means and manner of engagement • arrangements for consultation to ensure mitigation measures for operational noise are in accordance with the consensus view of residents affected.

2. An example of the need for consultation arises from the difference between diagrammatic models produced and the reality of what take place on the ground. This is highlighted by the Planning Inspector in the Appeal Decision2 where he says that “noise predictions made for schedule 6 purposed tended to be underestimated…I place more reliance on what I would term practical judgment than on detailed predictions of ‘time adjusted equivalent’ ”

17 SECTION 61 AND SCHEDULE 7 UNDERTAKINGS

The major differences between CTRL and Crossrail is the amount of work undertaken to protect the amenity and residents undertaken by Camden Council, which has a good reputation for protecting residential amenity and had consulted the community and opposed the 24-hour works. The tripartite group was based on trust and proper consultation taking the views and concerns of the community into account. Report: Camden Channel Tunnel Rail Link Pancras Station Contract April 2004 and 07 December 2006.16 In particular, see 3.1 and 3.2 shows that the consultees invited are affected groups not some arbitrary definition of inclusiveness, which in the case of CLRL, seemed designed to dilute the voice of those concerned about the adequacy of the Code of Construction Practice and the mitigation of any adverse impacts. The report shows that the tripartite group, which comprises of CTRL, representatives of affected groups and Council officers have met regularly since the 2004 and the three have reviewed the proposals in detail. Officers have also met representatives of the Coopers Lane Tenants and Residents Association to discuss the detailed Section 61 application that, as stated above, has been submitted in parallel with this Schedule 6 submission. At para 11926 Mr Elvin says: “We have already said we are content, if that is what the community wants, to have the King’s Cross tripartite model.” In line with the commitment, will the Promoter and the Committee provide an identical undertaking and if not, why?

The Crossrail requests the following:
The Secretary of State will undertake to direct the nominated contractor to submit all Section 61 and Schedule 7 applications, with supporting documents, to the Spitalfields/Whitechapel Mayfair/Hyde Park Community Liaison Panels 6 weeks prior to submission to the local authorities. This is in order that the community representative members can:
• Comment with full knowledge of all applications that are to be submitted;
• Assess the potential impact that all applications will have on the local community; have the right to comment on or express any concerns about the potential impact that all applications may have on the local amenity and is reasonably capable of being so modified;
• The right to appoint independent experts on air quality, noise, surveyors and engineers in the absence of independent expert views given that the Council had accepted all the submissions put forward by the Promoter in 2004.
• Ensure that all comments are acknowledged and the contractor and local authority, prior to the applications being determined, address all concerns.
• Hours of working are a crucial matter which petitioners may need to modify in order to preserve the local environment and local amenity.

18 INDEPENDENT COMPLAINTS COMMISSIONER

The Community Liaison Panel (CLP) and provisions of F12 and F5 for the Complaints Commissioner who is described as independent does not provide a mechanism to deal with concerns where works cause harm and breach reasonable standards for construction works. In Spitalfields, the CLP has failed to have enough trust to ensure attendance by petitioners and affected parties and the Paddington CLP has failed to provide information on areas of key concern and assuage concerns with information provided. The CLP must therefore move from failing to provide information about the detailed design and the adequacy of mitigation measures to being allowed to be a party in constructive agreements. This Select Committee can provide a reasonable way forward on this matter outside of the Promoter and other statutory authorities so there are ways to ensure the concerns of petitioners are dealt with. This would allow the Community Liaison Panel relationship with the Promoter, which has been marred by conflict and distrust to conflict resolution and constructive dialogue. For this, the CLP requires the following:

a. Mandate to represent affected parties through proper consultation
b. Access and funding for a legal and technical advisory bureau
c. To appoint independent experts to cater for site-specific concerns
d. Notification of works and be consulted on the adequacy of measures
e. Access to monitoring of complaints, breaches and response times
f. Consult and inform affected parties
g. Constructive information exchange and agreed work practices
h. Provision for access to independent arbitration such as Planning Inspectors or courts and abolition of Independent Complaints Commissioners role for Professor Tony Kennerley, who is viewed as biased

The Committee has heard evidence how sole arbiter Mr Professor Tony Kennerley, who was subsequently appointed as the Independent Complaints Commissioner despite failing to deal with serious consultation failures in Spitalfields and accusations of bias. Crossrail needs to provide proper consultation, protection and information in a reasonable and timely fashion with access to a magistrate’s court in the event of a dispute. The Independent Complaint Commissioners role should be abolished and replaced with a LEGAL AND TECHNICAL BUREAU FUNDED BY THE PROMOTER. This would provide a helpline to advise affected parties and also produce independent reports on structural surveys pre-works, during works and post works; tunnel engineering expert, noise expert, air quality expert and legal advice on areas of concern during the detailed design phase to ensure harm is minimised. Petitioners have appeared before the Lords because they have no confidence in adequate protection from their local authorities and this can be seen from the varying forms of consultation and protection afforded by different authorities. Petitioners therefore request funding to appoint independent legal and technical experts to protect their interests and the abolition of the role of Independent Complaints Commissioner, in whom there is no confidence.

19 FURTHER REPRESENTATIONS

Petitioners are permitted to make further representations on the adequacy of the mitigation measures, which follow the detailed design when detailed design information is available on areas of concern in relation to the law and the implementation of the scheme. The Select Committee should base its ruling on independent legal advice made public on the Crossrail Bill’s compliance with the EIA directive (as amended) and the Strategic Environmental Assessment (SEA) Directive.

20 UNDERTAKINGS AND EQUAL TREATMENT

The undertakings incorporating the above provisions are guaranteed by the government in order to give a proper financial covenant behind the obligations. The Coalition respectfully request the consideration of all the undertakings requested on behalf of your petitioners.

Petitioners are given notice and full details of all undertakings assurances and agreements that have been concluded or negotiated in or outside the Committees but as part of the Bill (with copies of agreements entered into pursuant to undertakings or assurances) and to be given equal treatment with all other petitioners.
1. The compensation provisions for Smithfield Market should be available to all historic and residential areas of London.
2. Should any petitioners have received unequal treatment as a result of this Bill, all members of The Coalition reserve the right to raise this matter.
3. There must be disclosure of all over site development and other commercial development agreements and its implications in relation to contributions for the Crossrail project and the “public purse”.

END
Documents attached
1. Network Rail Construction of Airdrie Bathgate Railway and linked improvements, hereafter referred to the Airdrie CoCP
2. CTRL Planning Appeal Inspector reference APP/X5210/CTRL/03/20, hereafter referred to as the CTRL Appeal
3. CTRL Proof of evidence report of Dr Fiona Adshead, Director of Public Health, Camden Primary Care Trust Planning Inspector reference APP/X5210/CTRL/03/20, hereafter referred to as the CTRL Health Study
(copy supplied at the WHRA hearing)
4. Camden Cabinet meeting Director of Environmental report on CTRL health study
5. Ove Arup report by Dr Keith Bowers 11 June 2005, hereafter referred to as the Arup report (copy supplied at the WHRA hearing)
6. The Control of Dust and Emissions from construction and demolition Best Practice Guidance report (hereafter referred to as the hereafter referred to as the pollution report
7. Camden Air Quality Report 2005
8. Mott MacDonald report Tunnel East of Liverpool Street Station Feasibility Volume 1 February 2002 (Promoter to make copy available)
9. Camden Council letter to CLRL – re impacts on conservation buildings
10. Promoter’s response to settlement questions 79, 80
11. GeoTechNet report produced with European experts and Arup Geotechnics.
12. JLE Telegraph
13. Paul Eade of Acoustic Design railways: noise and vibration issues
14. Mayor’s Ambient Noise Strategy 4b railway noise
15. Central Railways compensation scheme compared to CTRL
16. Camden Channel Tunnel Rail Link Pancras Station Contract April 2004 and 07 December 2006.