The Crossrail Bill is due to receive Royal Assent on Tuesday 22 July 2008 after petitioning in the House of Lords and House of Commons. Residents are beginning to realise why so many publicly funded projects go wrong if the level of scrutiny is similar to that of the Crossrail Bill, the Millennium Dome of public transport schemes.

The House of Lords Commitee received the following: legal submission from a Coalition of residential groups concerned about legal and financial implications of the Crossrail Bill. The only response from the Committee under the leadership of Viscount Colville was to say the Committee had subsequently been disbanded. The Committee did not to address any of the inconsistencies in the evidence and serious issues below and even tried to stop some petitioners from being heard. The Department for Transport is similarly reluctant to deal with the issues in the letter while simultaneously denying access to information under the Freedom of Information Act. It is now 16 July 2008 and Viscount Colville Ross and his colleagues received the letter on 20 May 2008.



THE COALITION



cc: The Mayor of London, Assembly Members, The Secretary of State for Transport Ruth Kelly,

Department for Transport (DfT) and CLRL





20 May 2008





Dear Chair Viscount Colville and Committee members



Re: Crossrail Bill and Coalition and petitioners’ hearings



Following the hearing and comments by Lords Committee members on 8 May 2008, please find the attached comments and requests, which should be put on the record in relation to the petition of The Coalition against the Crossrail Bill in its present form. The Coalition is writing this letter to make the Promoter and Committee aware of serious procedural defects and matters relating to the lawfulness of the Crossrail Hybrid Bill, which until now, has only proceeded under the shadow of a legal challenge.



The Crossrail Hybrid Bill as it stands does not meet the requirements of Article 1(5) of Council Directive 85/337/EC “Assessment of the Effects of Certain Public and Private Projects on the Environment” (as amended by Directive 97/11/EC. Article 1(5) requires public participation and the consideration of the public’s views. Please can the Department for Transport and the Committee Chair confirm that the attached legal advice produced by EIA expert counsel Richard Harwood of 39 Essex Street Chambers for The Coalition signed and dated 10 December 2007 will be disclosed and be made available to the public in full. There is also a legitimate expectation that the reasons for rejecting any arguments put forward in the legal advice will be available for public inspection.



In summary



Option B and the Wigmore Street/Cavendish Square route alignments were studied but reports on the two routes were not made available for the purposes of public consultation and participation in decision-making. Furthermore, access to information has only been made to parties who have pursued Freedom of Information requests and some parties including those requesting or promoting alternative schemes have never received reports from the Promoter even though they directly relate to them. The Promoter’s reasons for dismissing Option B and the Wigmore Street/Cavendish Square route options are contradictory and cannot be substantiated. The Promoter has attempted to argue that the two route options are not main alternatives and there is no duty to study them while simultaneously producing reports about alternative routes on route windows that have not been requested. The Promoter’s argument appear to be aimed at preventing scrutiny of the reasons for the selection of the Hybrid Bill route on the central section, which has been predetermined. The Promoter has refused to provide a comparative analysis between the Hybrid Bill route and Option B and the Wigmore Street/Cavendish Square route and the criticisms of petitioners remain unanswered. The Promoter did not disclose information on main alternatives Option B and the Wigmore Street/Cavendish Square at appropriate times thereby hindering consultation but did seek out and consider the preferences of Westminster Council and the Borough of Tower Hamlets. The two options are not included in the Environmental Statement (ES). The failure to consult and inform petitioners about these viable main alternative route options does not meet the requirements of the Aarhus Convention or the EIA Directive. The alternatives to which the Promoter refers were not Option B and the Wigmore Street alignment, which were not disclosed to MPs or the public prior to the second reading or indeed the first Commons hearings. The Third reading is the subject of further criticism and concern. The Commons Committee under the Chair of Alan Meale MP and the Lords Committee under Viscount Colville have refused to consider alternative alignments or report matters relating to the lawfulness of the Bill. The provision of appropriate information to allow adequate consultation on the route options has not been achieved through the legislative process. Instead, the Crossrail Hybrid Bill process has hindered such a process while failing to provide any redress or remedy. The Promoter in addition, to gaining Royal Assent for a tunnel route alignment through parts of residential and conservation areas of London is also seeking to use the Bill to defer permission for development and other matters. The Bill disproportionately and unjustifiably interferes with property rights and the EIA is inadequate for the purpose of integrating any deferred decisions on the detailed design and any development proposals. The failure to produce a comparative analysis prevents any decision-maker Parliament or otherwise to properly consider the merits of the Crossrail scheme.



The Promoter’s arguments



There are substantial defects in the submission produced by counsel for the Promoter David Elvin on 13 March 2008. The first argument is that there is no duty to consider alternatives. This argument would require a departure from good practice, policy and precedence on the Jubilee Line Extension and the Channel Tunnel Rail Link to which the Promoter compares Crossrail. Secondly there is only a duty to consider main alternatives studied by the developer. Studies were produced for Option B and Wigmore Street but not disclosed and this also applies to main alternative Superlink. Thirdly, the Promoter seeks to argue that Option B is not a main alternative as it only relates to one aspect of a route window, which was discarded early. All alternatives to a preferred route option are by their very nature discarded but there should be some process by which one can make a comparison prior to their dismissal. Option B is part of the whole route otherwise there would be no necessity to refer to route windows. Consultation on the route window between Liverpool Street and Whitechapel Station was prevented. The simple act of discarding Option B and the Wigmore Street/Cavendish Square by the Promoter does not mean they are not viable or main alternatives as the reasons for their dismissal must be valid. Fourthly, the Promote argues that specific alignments were outlined in the ES. The specific alignments referred to by the Promoter are not Option B but variations on one southerly alignment, which as stated in the legal advice seem “to be under more piled buildings and nearer sensitive sites than the earlier southern alignment.” The Promoter has similarly to the Hybrid Bill route sought to impose minor variations on a southern option, which was not requested by the Spitalfields community while avoiding comparative data on Option B, which was requested. The route is described as a viable alternative but for a proposed development. Finally, the Promoter seeks to argue that the EIA process is a dynamic one, which allows consultees including members of the public to contribute their own views and information. The public were not given access to information at appropriate times and participation has been prevented in the decision-making process. The Committee will be expected to provide reasons for accepting the Promoter’s submission if it accepts the conclusions, in whole or in part.



Various deficiencies in the information presented by the Promoter are highlighted and responses to all questions are requested under the Freedom of Information Act and the Environmental Information Regulations as is required under the Aarhus Convention.





The Promoter’s arguments are rejected for the detailed reasons set out below.



Consultation with the public



The Crossrail Environmental Statement and Supplementary Environmental Statement have been made available but they do not contain information about two alternative routes studied by the Promoter, which were not made available to the public or MPs prior to the second reading and the petitioning period in the Commons. The legal advice also says that the Department for Transport does not appear to have publicised the ability to comment prior to the third reading. In short, the process of inviting comments has been far from clear or adequate since the outset.



It is noted that the Crossrail Paper B3 does not set out the requirements of Article 6(2) of the EIA Directive. The Promoter has instead sought to imply that comments about the consultation being inadequate are just differences of opinion. The consultation arrangements have not dealt with the Promoter’s failure to provide information, consult and give directly affected parties or the public an opportunity to comment upon the route in a reasonable time so as to allow them to express an opinion. The Committee has not dealt with the adequacy of the public consultation on these matters. It is clear the Chair has ruled on the obscure point raised by Matthew Horton but is unaware of all the provisions under the EIA Directive. At para 13386, the Chair who has ruled on some aspect of the EIA Directive asked about the provisions of Article 6(2) of the EIA Directive from a paper by Richard Harwood of 39 Essex Street Chambers called Hybrid Bills and Environmental Impact Assessment produced on 22 March 2005, which says the following:





“Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 [the Environmental Statement] are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent is granted.”

The Crossrail Environmental Statement has been made available to the public. The issue is whether they have an opportunity to express an opinion. The member state may ‘determine the public concerned’ but the UK approach has been to allow anyone to make representations. ‘The public’ cannot be confined to those with locus standi because those rules are about the representation of private interests, not those of members of the public who may have no financial or propriety interests.



Consideration of responses



The legal advice says: Immediately following Second Reading, the House of Commons instructed the Select Committee that the principle of the Bill was to include the termini and various intermediate stations. It was also given an instruction: “that the Select Committee, without comment, report to the House for its consideration any issue relating to the environmental impact of the railway transport system for which the Bill provides that is raised in a petition against the Bill, but which the Select Committee is prevented from considering by the practice of the House” Various petitioners raised issues on the Environmental Statement and the way in which it was to be incorporated into the Act. The Select Committee produced a summary of the environmental impact issues referred to by petitioners. It strongly recommended that MPs read the Minutes of Evidence to get a full understanding of the issues. The recommendation is aposite, because the summary may describe environmental impact but is not an account of the criticisms of the Environmental Impact Assessment process which were raised by petitioners. For example, summaries of the representations by the Woodseer and Hanbury Residents Association and Robert McCracken QC do not bring out the questions they raised on the lawfulness of the EIA process.

Consultation of public authorities, the public and other states if there are transboundary effects is linked by the obligation that the information obtained ‘must be taken into consideration in the development consent procedure’: Article 8. The obligation is not simply to consider the Environmental Statement but to consider the comments of public authorities and the public on it. It cannot be met by suggesting that the Environmental Statement takes account of earlier consultation. This obligation is explicitly recognized in the EIA Regulations.

It is however absent from the Hybrid Bill process.



The Committee has heard petitioners give evidence that the Promoter did not provide information about alternative routes to petitioners to allow them to express an opinion and comment. The consultation with the public has been inadequate at the Second and Third readings as set out in the legal advice for The Coalition by Richard Harwood of 39 Essex Street Chambers. The Promoter has sought to evade responsibility for consultation requirements of Transport for London (TfL) even though the Crossrail Hybrid Bill is jointly promoted by the Department for Transport (DfT) and TfL. The petition response from the Promoter removes any reference to the TfL toolkit, which says: "never ask for comments, views or responses if all you want to do is explain what is going to happen anyway and if you have no intention of changing anything.” The petitioners have argued that the Promoter was not prepared to consider alternatives and sought to impose a predetermined route and then justify the selection of the Hybrid Bill route retrospectively. The Promoter’s own documents confirm these routes are viable and have been dismissed without comparative analysis and not for engineering reasons. Furthermore, the information about these alternative route options was not made available so as to allow the public let alone petitioners to express an opinion. Proper public participation in the consultation was prevented and information was only provided following lengthy paper chases using the Freedom of Information (FoI) Act and the Environmental Information Regulations (EIRs).


At the WHRA hearing on 6 May 2008, Ms Khela says leaflets had not been made available in local languages during the first round of consultation. Mr Elvin says: “It is not to correct to say the consultation, the information rounds it was only in English. Ms Khela points out in her submission on behalf of the WHRA that this statement was misleading as this implied that the Promoter had made information available in local languages Bengali and Somali during the first round consultations. The reality was leaflets on the first round of consultation on the route at the Whitechapel PIC were made available in English, Chinese and Vietnamese but not in Bengali and Somali. This omission was significant for two reasons. The first is that the Borough of Tower Hamlets is home to a 65000-strong Bangladeshi community, the largest group outside Bangladesh. Secondly, Crossrail proposed a route tunnel alignment through Spitalfields with a major worksite to launch tunnel boring machines, a spoil site with a ventilation and intervention shaft. Please can Mr Elvin and the Promoter provide evidence of leaflets being communicated in Bengali and Somali during the first round of consultations under the Freedom of Information Act? Furthermore, please can the Promoter explain the reason for providing information in languages that were not relevant to Spitalfields?


3. The Promoter of Crossrail have undertaken what is described as a “public awareness” campaign but avoids consulting to see if the public think Crossrail as a public transport scheme is needed or value for money. For instance, no consultation has taken place where Londoners have been allowed to consider the cost and adverse impacts of Crossrail when compared to alternative public transport schemes. It has been noted that Crossrail will only ease congestion on the central line and this does not benefit wider London public transport users. There has been no debate as to how the funding of Crossrail will impact on farepayers and other public transport users. Londoners were not told they would be left paying higher fares and taxes to pay for Crossrail and many Londoners are already concerned about the Olympic budget fiasco. A survey by YouGovStone Poll for the Evening Standard on 21 January 2008 prior to the London Mayoral elections revealed 47 per cent of Londoners were concerned about the tube. Only 3 per cent mentioned Crossrail, which was the main thrust of the defeated ex-Mayor’s public transport campaign. It is also worth pointing out that counsel for the Promoter has attempted to depart from good practice and policies adopted on the Channel Tunnel Rail Link and the Jubilee Line Extension by arguing there is no duty to consider alternatives. The Crossrail route tunnel alignment is a departure from good practice and the CTRL Select Committee, which moved the alignment away from residential areas to minimise risk and disturbance. The Promoter has sought to compare itself with CTRL but this has not been subject to any proper scrutiny. Projects of certain types are required to have EIA if they are likely to have significant effects on the environment. The decision to approve a route tunnel alignment going under historic and residential areas will have a significant effect in comparison to CTRL. However, no consultation has taken place on this “new” Government policy. The public have a right to be consulted on such a policy, as it would have profound implications for public transport projects in the UK. We believe such a policy is in any case at odds with the Directive. Please can the Department for Transport show evidence of consultation asking if Londoners want Crossrail over other schemes? Where is the consultation on whether London taxpayers and farepayers should pay for Crossrail? What is the new policy where there is no duty to consider alternative routes? What consultation has taken place on the tunnel alignment policy? What consultation has taken on the policy not to consider alternative routes? Please can the Select Committee state their position on this matter? Please can all information relating to the internal inquiry held at Crossrail be made public? Please can all correspondence relating to Professor Tony Kennerley be made available?



Consultation has occurred inspite of and not because of the Promoter. As such, we do not believe the Crossrail Hybrid Bill in its present form complies with the requirements of Article 6(2) of the EIA Directive.


Consideration of Alternative Routes and Practical and Fair Decision Making



1. The evidence presented on the consideration of alternative routes in Mayfair is contradictory. At para 12873 Ms Lieven repeats the argument put forward by Mr Elvin that the Wigmore Street/Cavendish Square alignment is not a “main alternative”. Please can the Promoter provide information about the main alternatives studied in the area under the Freedom of Information Act? The legal advice by Richard Harwood of 39 Essex Street chambers for the Coalition says: Mr Berryman’s evidence for the promoter to the Select Committee was that ‘we have looked at a very large number of alternative alignments’. The Wigmore alignment, including a station at Cavendish Square had been looked at, but not in the same detail as the other two routes. He said the use of Cavendish Square as a worksite had not been assessed. A 2002 assessment of the Wigmore Street alignment was produced to the Residents Society…following a Freedom of Information Act request. It considered that the Wigmore Street route would be less expensive, because of a shorter length, and that the risks were similar to those with the safeguarded route. At para 12772 Ms Lieven makes a lengthy speech about the provision of large amounts of information. It is irrelevant that the Mayfair residents received large amounts of information from the Promoter unless that information is appropriate or adequate in relation to their concerns about alternative routes. The Wigmore Street alignment report was not provided to the Residents Society of Mayfair and St James’s despite repeated requests at hearings and a FoI request, which resulted in a letter dated 25 May 2007, which was accompanied by three reports. One of these reports was the Wigmore Street alignment as confirmed by Ms Lieven at para 12892. This information was sent after the Commons petitions hearings and the second reading where the Residents Society of Mayfair and St James’s were prevented from raising alignment issues in relation to concerns about comparing the costs between the Wigmore Street alignment and Hybrid Bill route during AP3. The Mayfair residents not consulted upon the route because of the late disclosure of information. Yet Ms Lieven argues that the Commons Select Committee had not made a recommendation in relation to Cavendish Square. Mr Schabas points out the difficult to make a recommendation if the report has not been disclosed at para 12879. At para 12269 Ms Lieven suggests that it would be a disadvantage for a station to link with Oxford Circus. This would allow a Crossrail line to link in with Victoria Line and we do not hear why this is seen as a disadvantage. Ms Lieven also refers to modelling studies at para 12771, which have never been seen but presented as if they have been seen. Please can the Promoter provide all the information on the disadvantages of linking into the Victoria Line and the modelling studies referred to under the Freedom of Information Act? Please can the Promoter also state how many social housing residents would be affected by the Wigmore Street/Cavendish Square route? At the hearing of 8 May 2008 the Promoter says the reason for rejecting the Wigmore Street alignment is the interchange length which Mr Berryman says at para 13177 says is, “an additional 100 metres from Oxford Street.” Another reason presented by Ms Lieven at para 13218 “Would the Post Office have been enthusiastic about permanent infrastructure on their land at Newman Street?” Ms Lieven seems to believe that the Mayfair residents are less important than a Post Office sorting office. This was not the reason for dismissing a Wigmore Street/Cavendish Square Option in the Commons. At the Commons hearing on April 18 2006 (four-years later) Mr Berryman could give no reason as to why Hanover Square was more favourable than a car park site in Cavendish Square. Indeed, at para 6786 counsel for the Residents Society of Mayfair and St James Mr Pugh-Smith asks Mr Berryman “where do I find in Chapter 6 any reference to Cavendish Square in that section as part of your consideration of alternatives. Indeed, on whether Cavendish Square would be a more suitable site than Hanover Square? At para 6788, Mr Berryman says: “No analysis has been done of Cavendish Square, a superficial analysis would indicate there would not be much difference but certainly no analysis has been done.” Mr Berryman did not provide information or reports on the Cavendish Square route at the Commons hearing or subsequently despite a request by counsel for the Mayfair residents Mr Pugh-Smith. The Promoter now appears to be saying that a report existed in 2002 but was not made available for the purposes of consultation.



There is further concern as to how the Select Committee have heard evidence on Option B in Spitalfields. At para 13314 the Chair says to Ms Khela that the WHRA could have called Keith Berryman as a witness for the purposes of cross-examination. Ms Khela was surprised to hear this statement, as she understood that it was dependent on whether the Promoter chose to call Mr Berryman. We are advised of the following: if the committee determines that there is a case to answer, the promoters will then reply, and may call evidence. If they do call evidence, the petitioner has a right to reply. Please can the Chair and the clerk provide the specific reference for this in Erskine May? The Coalition members do not recall either of the clerks explaining this matter to any residents and petitioners throughout and this causes considerable concern to petitioners. Please provide all information including the reference in relation to the ability to call the Promoter’s experts or witnesses in the guide as produced for petitioning the Lords under the Freedom of Information Act? Furthermore, Ms Khela sent her submission via the WHRA at 18:24 on 7 May 2008 but received no acknowledgement of her email or advice that she would have any opportunity to cross-examine Mr Berryman on 8 May 2008. It should also be noted that the WHRA had advised clerk Sarah Price and the Promoter that the WHRA would like to examine a range of witnesses, which included Mr Berryman for their hearing on 6 May 2008. This information was sent to the Promoter and clerk Sarah Price on 2 May 2008. On 6 May Sarah Price says: “I can however confirm that I have received the email and noted the contents and that, as you know, I took receipt of the files from you on Friday.” Please can the Chair and the clerk inform the WHRA that if the Association did have the right to cross-examine a number of witnesses, why did these witnesses, particularly Mr Berryman not appear on 6 May 2008? Please can it be explained why no reference was made to cross-examining Mr Berryman by the Promoter or indeed the clerk on the day of the WHRA hearing on 6 May 2008? Please can the Chair or the Promoter explain why Mr Berryman did not appear at the Spitalfields Society hearing on 13 March 2008 when the matter was first raised?


At the hearing of the Spitalfields Small Business Association (SSBA) on 12 March 2008, the Chair says: “I think the difficulty that we are going to be in is that, if it is to be treated as a main alternative, and we are being invited to make a recommendation to the House to consider this on re-committal, as such, in accordance with the Directive, I think we have to have some material upon the basis of which we can say that it is a main alternative.” At the hearing for Spitalfields Society, at para 4438, the chair says: “Today I want to deal with Route B and I want to deal definitively with Route B.” Despite this, the Chair did not call for the examination of Mr Berryman or propose it to Matthew Horton, who says at para 4534 “B was not rejected because of Heron Tower; C was. B does not affect Heron Tower. In case your Lordships are in any doubt about that: as a matter of fact, Heron Tower – and we have photographs we can show you this morning – is not in the way of route B.” It now appears that the Chair did not have the full information to consider whether Option B was a main alternative as no evidence was requested on whether Option B conflicted with Heron Tower. At para 13096, Mr Elvin says his statement that Option B was rejected because of the Heron Tower was an “off-the-cuff remark”. Mr Elvin repeats this “off-the-cuff remark” which blames the rejection of Option B because of a conflict with the Heron Tower in a letter dated 4 May 2007 where he also consults Mr Berryman. However on oath, Mr Berryman is rather careful in relation to whether Option B conflicts with the Heron Tower. At para 13102, Mr Berryman says: “Line B virtually touches the foundations of Heron Tower…Line B virtually touches the foundations of Heron Tower and, on this alignment, would probably be impossible to build. The alignment could have been refined a little bit probably to clear that if there had been the prospect of a station at Whitechapel, but it also conflicted with this proposed building here (indicating) and also a number of other buildings in this area.” What is the meaning of “virtually” as an evidential standard and on what basis can this be accepted that Option B does conflict with the Heron Tower? The Spitalfields community dispute the veracity of Mr Berryman’s statement on oath that Option B affects the Heron Tower and this matter has not been subject to proper scrutiny. It is somewhat odd that the Chair invited Ms Khela to cross-examine Mr Berryman after Mr Schabas had left and despite her saying she did not have the relevant evidence and was therefore reluctant to raise this point. For the purposes of fair and practical decision-making, it would be prudent to examine whether Option B conflicts with the Heron Tower as suggested by Mr Berryman when petitioners have the evidence to hand. The failure to allow such evidence to be heard renders the process both unfair and unreasonable and the information presented by the Promoter to be in dispute. This should be done to an evidential standard otherwise the Committee are left to rely on disputed information presented by the Promoter. Therefore to rectify this matter and assist the Committee, the Spitalfields community wish to cross-examine Keith Berryman on a series of points now that the Select Committee has advised them that it is possible. In his submission, Mr Elvin says concerns about the deep pile foundations is consistent with the March 2001 report while at the same time saying that he is aware of two developments at para 13101. Please can Mr Elvin provide the reference to deep pile foundations and connecting with Whitechapel Station in the LUL March 2001 report? The Mott MacDonald report entitled Tunnel Alignments East of Liverpool Street dated February 2002 says: “Of these alignments B and C can no longer be considered due to the development east of Liverpool Street Station at Aldgate (50-storey development). Should the development proposal change then these alignments may become viable options once again.” In relation to the alignment, the Ove Arup report says the Promoter describes the Hybrid Bill alignment: “as favourable yet elsewhere it is noted that it necessitates the worse substandard curvature on the line” The Promoter has not been asked to substantiate support for substandard curvature of a route alignment that goes through the heart of the densely populated conservation area of Spitalfields when this could be avoided with Option B. Neither this Committee or the Commons were prepared to examine the reasons behind the need and present location of Whitechapel Station although the Commons Select Committee were prepared to support a Woolwich Station. No consultation took place on the need for Whitechapel Station but it was an ambition of the Mayor and Tower Hamlets Council as per para 13102 and the 2002 Council report. At para 13102, Mr Berryman says that it is difficult to locate a Whitechapel Station in a built up area and at para 13099 it is also difficult to locate it on main road at Whitechapel Station. No evidence was produced for either statement and experts and petitioners share Lord James of Blackheath’s concern about Mr Berryman’s statement that it is not possible to locate “stations under thoroughfares”. There is evidence of different possible locations for Whitechapel Station. Please can Mr Berryman show the analysis for modern day health and safety standard difficulties of having stations on main roads? Please can Mr Berryman show the analysis of different locations of Whitechapel Stations and the difficulties this posed?


The Chair refused to rule on Article 6(2) of the EIA and the Strategic Environmental Assessment (SEA) Directive even though petitioners were advised to the contrary. Petitioners received the following email from Ms Sarah Price on 14 March 2008. Ms Price says: “I wish to make clear that the Chairman will be making a ruling on the EIA point specifically raised by Mr Matthew Horton QC this week. You have been included in this email only because we thought you might be interested in the content of that ruling. The Chairman is not saying that ANY submissions made on the EIA after Tuesday will not be heard – the intention is to deal with Mr Horton’s specific point.” However, the Chair was subsequently not prepared to make a ruling on Article 6(2) EIA Directive, a point that was also raised by counsel Alex Goodman in his written presentation and orally at para 13720. The Chair questions the ability to make further rulings in response to Ms Khela. The Chair says at para 13343 and 13345 respectively: “No, I do not think we have got any powers to do that… It never was the case. Where have you read it?” It will be noted that at para 4435 Mr Horton says: “Well, my Lord, if your Lordship is saying to me that, in reporting to Parliament, the furthest you can go, supposing you were to support my legal submission, is to say to Parliament, “We consider that the test should be objective. You, Parliament, therefore, should consider whether Route B should have been considered as a main alternative”, then I have to accept that would be the end of it.” The Chair replies: “That is what we are going to do.” At para 13342-3 Ms Khela says: “Well, as I understand it, after having read Matthew Horton’s transcripts, I believe you suggested that there could be some sort of recommittal.” But at the WHRA hearing, the Chair was not prepared to report the matter to Parliament and told Ms Khela that no remedy was available The Chair was not prepared to listen to Ms Khela’s submission even though it was quite different to that of Mr Horton and concerned compliance with Article 6(2) of the EIA Directive and the application of the Strategic Environmental Assessment Directive. A ruling has been reported to the House according to the Chair at para 11715, which fails to deal with these two points. Ms Khela even says at para 11753 “I was told by Sarah Price that your ruling was on Matthew Horton’s rather obscure point.” Ms Khela appeals to the Chair throughout including para 11816. However, there was no adequate response to Ms Khela’s concern that the WHRA is being treated differently. Please can the Chair and the Committee provide a reason for the difference in treatment, which seems both unfair and unequal? Please can the Select Committee also specify how the matter will be remedied? What remedy will the Chair provide for failing to deal with two points, which are not those raised by Matthew Horton?




The Chair gave the following ruling on route B and the obscure point raised by Matthew Horton on behalf of the Spitalfields Society, where he says: “Much discussion of Route B has been available for a substantial period. It is common ground that London Underground Limited produced a report in 2001 concerning the Crossrail Eastern Portal. Three alignments had been considered, including Route B. Even at that stage, Route B was not thought to be a viable option because of the proposed development east of Liverpool Street. In March 2005, Messrs Mott MacDonald were invited by the Promoters to report on the Woodseer Street track alignment option, which is Route B. Their conclusion concerned various engineering problems, such as a reduction in train speed and increased track and carriage wheel maintenance. After this, or perhaps before, the Promoters abandoned further consideration of Route B. Undoubtedly, Route B has never been presented as a main alternative and has never been considered as such by the Promoters. There is, therefore, no requirement on them under the Directive to write it up in the Environmental Statement, as such. We are satisfied that the Promoters have fulfilled the requirement in House of Lords Standing Order 27A, including the provisions of an Environmental Statement which did contain an outline of the main alternatives studied and an indication of the main reasons for the choice of route set out in the Bill before us now.” At paragraph 5643 the Chair says: “Before we start, I want to do something which is legitimate which is to make a factual correction to the transcript. On Day 14 at paragraph 5561, I was in the process of giving the Committee’s response to the legal point about the EIA and at 5561, in the penultimate sentence, I referred to a report by Messrs Mott MacDonald. I was later told by Mr Mould that it was factually incorrect and that the route that they were talking about at the point that I was referring to was not Route B. Therefore, the whole of that sentence should be deleted and, as a consequence, in the last sentence of that paragraph, the words “After this, or perhaps before” similarly should be deleted. It makes no difference whatever to the conclusion, but I am dealing with the factual correction that Mr Mould has told me about.” At paragraph 5570-5576, Mr Mould says: “It is fair to say that the Mott MacDonald report is one of a number of reports more recently that have pointed up engineering difficulties with a number of routes along what is broadly called the ‘southern alignment’ of an engineering nature, but it did not directly consider that precise route that your Lordship has termed ‘Option B’.” The Chair responds: “Do you want me to correct this? … Mr Mould says: “Would it be convenient if I were to put forward for you a form of words once we have the transcript and then your Lordship might feel it would be appropriate to read that into the transcript when it is available?” The Spitalfields community had requested consultation and a comparative analysis on a route, which followed Whitechapel Road. They believed this to be a viable option but the Promoter denied the existence of such an option until the disclosure of documents on 24 January 2007. Option B was not rejected because of a reduction in train speed an increased track and carriage wheel maintenance or engineering reasons and more importantly, it was not consulted upon. The correction to the ruling is invalid as it refers to the fact that discussion about Route B occurred and been available for some time. A form of words produced by counsel for the Promoter does not change the fact that information about Route B was not disclosed until 24 January 2007 and discussions about Route B were prevented as in recent hearings.


The approach taken by the Promoter for the Environmental Statement in relation to the consideration of alternatives is to only look at options at a strategic level even though impacts will mostly affect the tunnel route alignment for the central section, for which the Crossrail Hybrid Bill is presently seeking Royal Assent.


Over Site Development and Commercial Development



Coalition members understand that CLRL and the Secretary of State has been advised by Partnerships UK (PUK) on maximising potential from commercial development above key stations along the route – including what a PUK press release describes as “sensitive sites” in the hearts of Mayfair and The City. The PUK work was undertaken to support Adrian Montague when he produced the Crossrail Business case, the Montague Review as published in 2004. Mr Elvin says at para 4516“In paragraph 32 of my response you will see that Option B was eliminated in March 2001, two-and-a-half years before the benchmark scheme had been produced by CLRL. It was eliminated at a very early stage. It was eliminated three-and-a-quarter years before the Montague report was published considering the main alternatives so far as cost-benefit analysis was concerned.” It will be noted that a cost benefit analysis was never produced for Whitechapel Station and at para 2038 Richard Drabble for Tower Hamlets Council says: “Whitechapel Station is the only Crossrail station with a single entrance. Crossrail suggest that this is because passenger numbers do not justify a second entrance…” It will be further noted that the Promoter’s report says Wigmore Street alignment offers substantial savings. It is understood that Adrian Montague left Partnerships UK in December 2001.


As stated at the petition hearing, a Council document in 2002 says the following: “3.1 The improvement of transport infrastructure in East London is seen as key to the delivery of the Mayor’s vision for growth as set out in his London Plan and Tower Hamlets has previously echoed this urgent need in its formal response to the draft London Plan. Canary Wharf Group have made an important contribution to securing a commitment to Crossrail stations in Tower Hamlets by researching the engineering and fundability of route options and vigorously campaigning for stations in Tower Hamlets. The core route has also earned the support of Thames Gateway Partnership. The contribution to regeneration of the scheme now offers contrasts remarkably with the lack of benefit to this area offered by the original scheme, which was defeated in 1994. 3.2 In its response to the draft London Plan, the Council has stressed the critical importance of Crossrail to supporting the scale of growth envisaged for East London. The Council stressed the need for major infrastructure projects to be brought forward urgently in order that public transport networks can provide effective access to core development areas.3.3 In order to deliver this vision, a joint venture company, Cross London Rail Link (CLRL) has been established by the SRA to the Mayor’s executive arm, Transport for London to take forward Crossrail Lines 1 and 2. 5.2.1 the use of subways is not encouraged due to personal safety issues…Council will need to consider the provision of resources for the development of a masterplan for the Whitechapel area… this suggestion has received a positive response from Crossrail who would need to provide detailed input to the master planning process. The station development itself could offer new direct access to areas north of Whitechapel Road, a new bus interchange and associated retail opportunities. 5.2.3 CLRL’s preferred station design would build a new station booking hall over the existing District Line at Fulbourne Street, with potential for integration with a new bus station at Durward Street. This proposal[s] would meet all the objectives set out above and it is recommended that Members give their principle support to it as their preferred option. 5.2.4 As the promoters of Crossrail do not have full control of the project, they have taken the liberty of designing an alternative station site. Three sites have been considered – the site of the Idea Store, the Blind Beggar pub and the car park at the corner of Cambridge Heath Road…it is recommended that Members object to them all and offer to work with CLRL to lobby for the District Line improvements to be secured. Please disclose all interests relating to the Canary Wharf and Thames Gateway Partnerships under the Freedom of Information Act? The Coalition has read the petition hearings on these matters and urges others to do so.


The Residents Society of Mayfair and St James’s have presently put in several Freedom of Information requests to ascertain the reasons why Westminster Council supported the Hybrid Bill route through Hanover Square over the Cavendish Square route. The information has not been supplied to-date but this matter will be pursued vigorously. Please can the Department for Transport make available all information showing consultations with Westminster Council on the route alignment options as affecting Hanover Square and Cavendish Square under the Freedom of Information Act?


We are further advised that Partnerships UK (PUK) advised on Over-Site Development strategy and the negotiation of Collaboration Agreements with key landowners. Under the Freedom of Information Act, please provide the details of all the information relating to this advice and these so-called Collaboration Agreements in all areas affecting Coalition members’ areas?


Crossrail is a Railway Bill, which should be used for the purposes of building a successful railway not for the ancillary purpose of development, as it would fail to meet the public interest test and disproportionately interfere with property rights. The Committee has not called for an investigation into the decisions behind the selection of the routes going under residential and conservation areas despite concerns about the reasons. Furthermore, the Committee in the Lords has made no mention of the Promoter’s attempts to acquire land temporarily or permanently and to the extent such acquisition is sought by the Promoter especially as to whether such rights should be maintained should there be any variation in the works in the future. You will note in Luxembourg v Linster, the ECJ held that the ‘national court, called on to examine the legality of a procedure for the expropriation in the public interest, in connection with the construction of a motorway, of immovable property belonging to a private individual, may review whether the national legislature kept within the limits of the discretion set by the Directive, in particular where prior assessment of the environmental impact of the project has not been carried out, the information gathered in accordance with Article 5 has not been made available to the public and the members of the public concerned have not had an opportunity to express an opinion before the project is initiated, contrary to the requirements of Article 6(2) of the Directive.’ It will also be noted that Linster was decided under the original 1985 Directive, which has since been amended in 1997 and further amendments, adopted in 2003, have subsequently come into force.




Article 6(2) of the Environmental Impact Assessment (EIA) Directive



1. Option B and the Wigmore Street alignments were studied but no comparative analysis was produced and the reports were not disclosed thereby preventing consultation with the public. The Environmental Statement requires an outline of the main alternatives studied. None of the alignments presented in the Environmental Statement or Supplementary Environmental Papers deal with the provision of two main alternatives studied, Option B in Spitalfields or the Wigmore Street alignment/Cavendish Square route in Mayfair, which are viable according to the Promoter’s own reports and experts. The Mott MacDonald 2002 Tunnel Alignment East of Liverpool Street Station Feasibility Study Report Vol 1 – Bow Triangle and Pudding Mill Lane February 2002 says Option B would be viable but for development proposals. It is further noted that at para 11309 Mr Berryman confirms that Option B “was not consulted on by anybody except internally within the project.” The Promoter has later disclosed variations to one southern route option carefully avoiding Option B while simultaneously claiming there is no legal obligation to consider such an option. This is an odd use of “public monies” if there is no duty to do so. The fact is that there is a duty to consider alternatives and Option B is a main alternative but the presentation of southern route options appears to be for the purposes of attempting scrutiny of the dismissal of Option B, which was studied and summarily dismissed to avoid a proposed development. The legal advice for The Coalition on the disclosed report for the Wigmore Street Alignment says the route would be less expensive because of a shorter length and that the risks were similar to those with the safeguarded route. At the hearing it is noted that MS Lieven says in reference to Mr Haste, she says: “Mr Haste actually said, because Mr Berryman was there, was he told you that CLRL was not going to consider alternatives “that had no hope of success”. That is the complete quotation, is it not? We can find no evidence in the Mott MacDonald and the Wigmore Street alignment report to say that Option B and Wigmore Street alignment had “no hope of success”. The statement made by Michael Schabas at the House of Commons hearings on 18th April 2006 and the suspended 31st January 2007 referred to Mr Berryman and the Promoter following the safeguarded route and refusing to consider alternative routes is corroborated by Eastern Portal Bow Triangle report 2001. Appendix A of 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 supported following a predetermined safeguarded alignment instead of the Wigmore Street/Cavendish Square alignment, which offers considerable savings to the “public purse”. The Promoter also did not provide reports for the purposes of consulting with Promoters of an alternative scheme. Michael Schabas at para 12860 says: “They told me the reason they rejected the river route was because of environmental impacts of cofferdams in the river and port sites in the royal parks. When I asked for more information I was told in writing that they were not going to give me any more because they did not want to engage in a long conversation.”



Information about these alternatives was not presented to petitioners affected by these two different options for the purposes of inviting comment and as a result consultation did not take place. This has led to an injustice, which has prejudiced the rights of petitioners, who will seek a remedy. Counsel Alex Goodman recommended that the Select Committee should produce a comparative assessment of alternative routes and consult upon these main alternatives. This was refused but would be required under Article 6(2) of the EIA Directive. The Committees disregarded the suggestion by counsel Alex Goodman even though it could lead to the enactment of a Bill that is unlawful. The Select Committee did hear evidence from Matthew Horton QC on a more obscure point of law, on which the Chair gave a ruling.


A report entitled the Crossrail Eastern Portal Bow Triangle Option for London Underground R1 28/03/01 contained drawing number C/SUR/P/SS/A/004, which showed the route of three main options A, B and C, was supplied by the Promoter on 24 January 2007. The Chair is correct to say the Commons Select Committee under Alan Meale MP erred when refusing to consider Option B. At para 4599 Mr Horton says: “until these reports were released shortly before the second hearing in the Commons relating to AP3. That is the first that the public, particularly the public concerned about the precious area of Spitalfields, was ever told about it.” The Chair says: “The Commons had powers to ask for additional provisions.” The Commons Committee did have such powers and were informed of such powers by letter but chose to rely on the advice of counsel for Promoter David Elvin, who says in a letter dated 4 May 2007, “the WHRA wish to make representations to the Committee against the alignment which is (a) contrary to the principle of the Bill established at the second reading.” The Chair highlights the differential treatment of petitioners in the Commons, which was under the Chair of Alan Meale MP. At para 4604 The Chair says of the Commons Committee: “But they were empowered to ask for additional provisions, and indeed they did so – not here, but elsewhere.” This was despite the fact that the second reading had been determined without information about Option B, which had not been disclosed to the public or Parliament. At the reconvened hearing of the WHRA, chair Alan Meale MP says at para 20188: “We are not going to revisit Hanbury Street we have taken evidence and a decision on that.” The Committee is aware that information on alternative routes was not provided prior to the Commons second reading or the Commons petition hearings and have a copy of legal advice raising serious concerns about the Third Reading. The Commons Select Committee wrongly refused to consider information on alternative routes on Option B in the case the Woodseer and Hanbury Residents Association (WHRA) and the Spitalfields Small Business Association (SSBA) at AP3. The Select Committee refused to consider the merits of the Wigmore Street/Cavendish Square alignment but this option was not disclosed to the Residents Society of Mayfair and St James’s in any case. The Select Committee did not produce Additional Provisions on Option B instead the Promoter has sought to produce a range of different southern alignments but never Option B, which was disclosed and never consulted upon.


Strategic Environmental Assessment (SEA) Directive



The Strategic Environmental Assessment (SEA) Directive, recital 14, Article 5 of the SEA Directive sets out that “where an assessment is required by this directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme”. Recital 17, which is expressed in Article 8 of the SEA Directive, says: “the environmental report and the opinions expressed by the relevant authorities and the public… should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.”


2. The Promoter is legally obliged to set out the environmental effects arising from plans and programmes are identified, assessed, mitigated and communicated. In a letter dated 17 November 2004, the Department for Transport say that SEA applies to plans and programmes not Crossrail, which they say is a project. A letter from the Department for Transport to the WHRA dated 29 February 2008, which responds to a complaint about the failure to comply with a Freedom of Information request, says that the tunnel route alignment is Government policy. However, the public has not been consulted on the development of such a policy particularly given the residual impacts of such a policy. The Promoter is tunnelling under historic residential parts of London while simultaneously refusing to produce a comparative analysis on what are and were viable alternatives in Mayfair and Spitalfields. This is confirmed by the Promoter’s own documents. The contradictory reasons have not been subject to proper evidential scrutiny.



Human Rights



The restrictive rules of hearing the cases of petitioners and their treatment has prevented them from raising all concerns and matters in their petitions contrary to Article 6 and Article 14 of the European Convention on Human Rights (ECHR). It is unfortunate that an institution that seeks to uphold democracy and espouse the importance of the rule of law seeks to exclude itself from Human Rights for the purposes of Parliamentary hearings. This presents further difficulties with a Bill describing itself as a public interest bill affecting private interests in a process that should be designed to protect and mitigate petitioners from likely harm. However, it is correct to say that Parliament is not a public authority under section 6 of the Human Rights Act. In any case, the Promoter’s arguments are irrelevant as it simply means that the Bill itself will be incompatible with the Act. Furthermore, it will be noted that petitioners argue that the Crossrail Hybrid Bill disproportionately and unjustifiably interferes with property rights contrary to Article 1 of the First Protocol of the ECHR.





The legal advice by Richard Harwood says:



The environmental effects of different routes between particular stations will be different and will impact on different people and different interests. It would be expected that an Environmental Statement into a road or rail project between A and B would explain why it travels via D rather than via E. This Environmental Statement does not do so. The Third Supplementary ES provides a limited alternative in Spitalfields, although not the main ones the promoter was considering. Further analyses of alignments around Spitalfields have been produced by Crossrail in 2007, which the Select Committee did not have the opportunity of considering in evidence. The effect of this approach is serious. Petitioners and the public do not know why Crossrail goes to the South of Oxford Circus rather than the North. The reality is that no alternative alignment which could achieve the objectives of Crossrail was brought forward in the Environmental Statement. The House of Commons Standing Orders require an Environmental Statement to be produced and for copies to be available for inspection and sale (Order 27A). However it fails to provide detailed arrangements for consultation or to require the giving of reasons for approving a Bill as required by the EIA Directive. The defects in the procedure have been the subject of criticism from an early stage in the Bill’s progress. In response to such criticisms the government have advertised response periods for the Environmental Statement and the various supplements to it. Representations on the Environmental Statement (but, oddly not a letter from Bindmans Solicitors on behalf of the Woodseer and Hanbury Residents Association which criticised the EIA process being undergone) were placed before MPs prior to Second Reading.


The duty to give reasons in Article 9 of the EIA Directive as amended in 1997 included:
“- the main reasons and considerations on which the decision is based,

a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects”

The first quoted point was amended by the Public Participation Directive 2003/35/EC to say:

“- having examined the concerns and opinions expressed by the public concerned, the main reasons and considerations on which the decision is based, including information about the public participation process”



The 2003 amendments explicitly relate the reasons which must be given to the public comments, so the reasons should, amongst other matters, address the public’s criticisms. This was implicit in the EIA Directive with the 1997 amendments as the reasons follow the consideration of the public comments which is required by Article 8. The Promoter’s closing statement (dated 28th March 2007) says that it is arguable that the Public Participation Directive does not apply, as it came into force after the Bill was introduced, but that, in the context of consultation, the requirements have been met by the Bill process in any event.


The first consequence of the Crossrail process not securing the Article 1(5) exemption is that it will need to go through a fresh development consent process. The grant of deemed planning permission under the Bill (or as permitted development under the Town and Country Planning (General Permitted Development) Order 1995) would be unlawful. It would purport to be a grant of development consent in breach of the Directive.

The UK Courts would be able to review whether the Crossrail Act (as it would become) was within the Article 1(5) exemption. The issue may be taken as a defence to compulsorily acquisition, as in Linster, or as a judicial review. The issue could also be raised by the European Commission in infraction proceedings.







The Coalition has dealt with the deficiencies in the treatment of petitioners’ requests for undertakings by separate letter. Please acknowledge this letter by return and provide a substantive response within 14 days. The Coalition reserves all rights to raise further matters. All information requests are made under the Freedom of Information Act and Environmental Information Regulations (EIRs).

The Coalition Committee











Article 6(3).