1

COL15 Version: 2 December 2013

THAMES TIDEWAY TUNNEL

CITY OF LONDON CORPORATION’S RESPONSE

TO

THE APPLICANT’S RESPONSE

TO

THE EXAMINING AUTHORITY’S FIRST WRITTEN QUESTIONS AND REQUESTS

FOR INFORMATION

Contents

PART 1 INTRODUCTION .................................................................................................................. 1

PART 2 RESPONSE TO APP01 (Air quality and emissions) ............................................................ 2

PART 3 RESPONSE TO APP05 (Design, landscape and visual impact) ........................................... 2

PART 4 RESPONSE TO APP06 (Development Consent Order Drafting and Related Matters) ........ 3

PART 5 FURTHER MATTERS RELATING TO THE DCO ........................................................... 24

PART 6 RESPONSE TO APP08 (Historic environment) ................................................................. 29

PART 7 RESPONSE TO APP11 (Noise and disturbance) ................................................................ 29

PART 8 RESPONSE TO APP16 (Traffic, travel and transportation) ............................................... 30

PART 9 RESPONSE TO APP19 (Statement of common ground) .................................................... 30

PART 10 RESPONSE TO APP25 (Draft s.106 agreements) ............................................................ 30

PART 11 RESPONSE TO APP26.02.02 (Minor Changes to the Application for Development

Consent – Blackfriars Bridge Foreshore) .............................................................................................. 31

PART 1 INTRODUCTION

1. This Response addresses the Applicant’s Response to the Examining Authority’s First

Written Questions and Requests for Information.

2. We shall avoid needless repetition of the content of the Written Representations

(COL15), the Local Impact Report (COL09) or other documentation previously

submitted. Instead, we shall address only those matters where the Applicant’s Response

has prompted additional points of reply or elaboration. A failure to offer further

comment on matters covered in the Applicant’s Response should not, therefore, be

taken to indicate that any previously indicated point of disagreement has fallen away.

2

PART 2 RESPONSE TO APP01 (Air quality and emissions)

Question 1.1

3. We accept the information provided in the Environmental Statement and Air

Management Plan with respect to the impact of construction traffic and odour control.

We remain concerned about odour being a potential problem once the project is

completed but understand that the use of passive carbon filters for the projected times

when the air pressure is positive from the ventilation shaft provide the best available

technology for dealing with this. We would caveat that the filters will require regular

changing so as to retain their effectiveness although we understand this would be

potentially actionable using Environmental Protection Act if the tunnel owner was not

carrying this out. We would expect that to be a matter of discussion rather than

necessitating legal action, but seek the assurance of an additional requirement to enable

us to approve the details of regular odour management and monitoring.

PART 3 RESPONSE TO APP05 (Design, landscape and visual impact)

Question 5.1

4. Paragraphs 1.1.5c, 1.1.6 and 1.2.39 state that it is considered that the project is in

compliance with the elements of London Plan policy 7.12 and that “Overall, the

project design is considered to be in accordance with the policies and guidance of the

LVMF” and “is in accordance with these elements of the London Plan policy 7.12.”

This would be the case in respect of the submitted plans but under the wide definition

of ‘maintenance’ in the Development Consent Order (DCO) future works could be

carried out that would not. The definition of maintenance is wider than the temporary

effects during construction referred to in paragraph 1.2.8.

5. Furthermore, any future changes may not be in the scope of the environment impact

assessment referred to in paragraph 1.2.5.

Questions 5.3 and 5.4

6. It is accepted that there should be a project wide signature column, the final details for

which would be the subject of site specific requirements, at which stage the final height

at each site could be determined.

Question 5.24

7. The sturgeon lamp standards affected by the project are to be reinstated as far as

possible as reflected in the Design Principles and requirement BLABF 12. The lamp

standards are in a poor condition and in need of refurbishment and we will discuss this

issue with the Applicant.

3

PART 4 RESPONSE TO APP06 (Development Consent Order Drafting and Related

Matters)

Question 6.9

8. The Applicant cites, in paragraph 9.1.3, the precedent of the Rookery South (Resource

Recovery Facility) Order 2011. It is to be noted that the circumstances of that site are

very different from the present. Rookery South is a self-contained facility situated in an

otherwise largely unbuilt area. The Thames Tideway Tunnel will, by contrast, be

integrated into a large stretch of dense urban environment accommodating many

important activities and uses. This means that the potential disruption from future

works is far greater, and heightens the importance of ensuring that the DCO strikes an

appropriate balance between competing interests.

9. In paragraph 9.1.4, the Applicant offers examples of the sorts of work which it

anticipates carrying out under the various heads included within the definition of

“maintenance.” Many of these would be possible under the ordinary powers of

inspection, renewal and repair open to undertakers. The others cover precisely the sorts

of activity which should, in our view, require planning permission from the local

planning authority. We note that the Applicant clearly envisages using the power of

maintenance to carry out work which causes the infrastructure to depart from the

specifications to which it is initially constructed, for instance by altering structures to

improve their efficiency, or installing new technology. Such alterations would leave the

infrastructure operating in a manner which had received no detailed scrutiny from the

Examining Authority as part of the present application.

10. It is not easy to understand the explanation offered by the Applicant in paragraph

9.1.5, but in any event we do not consider that it accurately reflects the present drafting

of the DCO. It may be helpful to break down our comments as follows:

10.1. First, the Applicant indicates that the power is only intended to apply to

“associated development.” This does no more than beg the question. Works of

maintenance amounting to new development can only be authorised as

“associated development,” given that it is the construction of the infrastructure

which is the “nationally significant” development. It is the task of the Applicant

to describe the associated development for which it seeks consent, and that of the

Examining Authority to satisfy itself that such development is indeed

“associated” within the meaning of section 115(2) of the 2008 Act.

10.2. If the Applicant is to be taken to suggest that the DCO should grant a broad

power and leave it to be cut down simply by reference to the vires in the parent

Act, then we suggest that this would be a wholly inappropriate approach. It would

result in a state of wide uncertainty, whereby the Applicant, the local planning

authority and ultimately the courts would be left to determine on a case-by-case

4

basis whether works of maintenance amounting to new development were

“associated” or not. This would be inconvenient, expensive and time-consuming.

What is and what is not associated development is something that should be

determined by the Examining Authority in the course of the application, on the

basis of appropriate particulars supplied by the Applicant.

10.3. In any event, it is not at all clear that the mere concept of “association” could be

relied upon to keep the scale of future works within appropriate limits. To take

the example given by the Applicant, it is by no means obvious, as a matter of

statutory construction, that the decommissioning of a pump would be any more or

less “associated” with construction of the infrastructure than would be the

decommissioning of the main tunnel.

10.4. Secondly, the Applicant points out that the development consent granted by virtue

of article 3 and Schedule 1 does not extend beyond the authorised project. This is

correct but unhelpful. As we have stressed in our Written Representations, the

term “authorised project” extends to all development and all other works

authorised by the DCO. The point is not that article 3 and Schedule 1 might

extend beyond the authorised project, but that the authorised project, and with it

the development consent granted by article 3, extends considerably beyond the

works in Schedule 1. Anything within the terms of the power sought in article 5

and amounting to development would, to the extent that it was within the Order

limits, fall within the development consent granted by article 3, quite irrespective

of the contents of Schedule 1.

10.5. Thirdly, the Applicant seems to draw, from the premise that we have analysed in

the foregoing paragraph, the conclusion that “associated development” is

somehow limited by reference to the final paragraph of Part 1 of Schedule 1, i.e.

to works which do not give rise to materially new or different environmental

effects from those assessed in the Environmental Statement. For the reasons we

have just set out, such a conclusion would be unwarranted. The development

consent which would be granted by a combination of articles 3 and 5 would, by

virtue of the definitions in article 2, be in no way restricted by reference to the

contents of Schedule 1.

11. The Applicant’s submissions on these matters appear to indicate some confusion

between the two notions of the “authorised project” found in the draft DCO, viz. the

“authorised project” defined in article 2 so as to include everything authorised by the

DCO, and the “authorised project” as particularised in the Schedule bearing that title.

We consider that this adds weight to our suggestion that the definitions in article 2 be

revised so as to draw a clear distinction between the authorised project particularised in

Schedule 1 and the ancillary and further activities authorised in the main articles of the

DCO.

5

12. The explanation offered by the Applicant in paragraph 9.1.6 does not address the

substance of the point. First, it is not clear what is meant by the statement that article 5

could not be used to take the project “outwith” article 3. As explained above and in our

Written Representations, the effect of article 3 is to grant development consent for

anything authorised by any provision of the DCO which amounts to development. The

only specific restrictions, apart from the Order limits, are supplied by the approved

plans and the scheduled requirements. The approved plans (which are those listed in

Part 4 of Schedule 2) are largely confined to illustrations of demolition work, site

clearance and site parameters, while the extent to which the requirements would be apt

to control post-construction works of maintenance is unclear. Neither of these therefore

provides adequate assurance about the forms of future development which could be

carried out under article 5.

13. In relation to the second element, we accept that maintenance under article 5 could not

take the project “outwith” article 4 without the Applicant’s losing the benefit of that

article. All that this means, however, is that the project must remain capable of use for

the purpose for which it was designed. This is not a limitation of any substance on the

forms of future development which may be carried out under the guise of maintenance.

Very extensive development could be undertaken without in any way affecting the

purpose for which the infrastructure was used.

14. In paragraph 9.1.10, the Applicant states that maintenance is addressed in the

Environmental Statement. It is manifest, though, from the response given in paragraph

9.1.4, that the Environmental Statement describes only a small portion of the work

which might be carried out under the power of maintenance sought in article 5.

Furthermore, as we have noted above in relation to paragraph 9.1.5, the power of

maintenance is in no way limited by reference to the final paragraph of Part 1 of

Schedule 1. It must therefore be concluded that the works within the scope of article 5

(and consequently the development consent granted by article 3) could go beyond any

works assessed in the Environmental Statement, and give rise to different and wholly

unassessed environmental effects

15. The Applicant asserts in this paragraph that the extent of maintenance is limited by

article 3, Schedule 1 and article 4. For the reasons we have already given, articles 3 and

4 do not provide any limitation of substance on the forms of development which may

be carried out pursuant to article 5, while it is not correct to state that article 5 is in any

way limited by reference to the contents of Schedule 1.

16. In paragraph 9.1.11, the Applicant mentions further purported controls in the form of

requirements, protective provisions and side agreements. First, as we have explained, it

is not clear how the requirements in Schedule 3 would restrain the form of development

which may be carried out under article 5. Secondly, the protective provisions contained

in the DCO are highly limited in scope, in that they are confined to the interests of

specified bodies. They are plainly not an adequate substitute for planning control.

6

Thirdly, any side agreements will be entirely voluntary on the part of the Applicant, and

their contents will not be assessed by the Examining Authority during the application

process. They could not properly be relied upon as a substitute for planning control.

17. We therefore find nothing in the response of the Applicant which leads us to depart

from the view expressed in our Written Representations that the power of maintenance

as presently drafted would purport to authorise a very wide range of works without any

proper scrutiny of their suitability or environmental effects.

18. As a final point, we would draw attention to the expectation that the Undertaker will be

a private company that will own and maintain the project (see paragraph 5.6 of the

Funding Statement (Doc Ref: 4.2). It is apparent therefore that the authority in article 5

of the DCO is not an authority which would render intra vires activities that which

would otherwise be ultra vires. The owner of property is ordinarily entitled to carry out

all of the activities described in relation to its property as a matter of personal

entitlement. It follows that in order to serve any purpose at all, article 5 must be

conferring on the Undertaker authority to do something that would otherwise be

unlawful or illegal. The only constraint on that authority is the extent to which the

Order or an agreement made under the Order provides otherwise.

19. In our Written Representations we have adopted the position that article 5, when read

with articles 2 and 3, grants development consent for the Undertaker to carry out the

defined maintenance activities. However, we now consider whether the article goes

further, and effectively disapplies other controls that might otherwise prevent certain

maintenance activities being carried out or control the manner in which those activities

are carried out. In this sense, article 5 would have some overlap with articles 55 and

56, which seek to disapply or modify public and private legislation. In article 56, the

disapplication etc. applies where the enactment is “inconsistent” with “a provision of,

or the exercise of a power conferred, by this Order.”

20. We submit that the meaning and scope of article 5 is obscure, and we would prefer

drafting which is more transparent. If it is intended to disapply planning, environmental

and other controls in relation to maintenance activities, the DCO should identify those

controls and disapply them in clear terms.

Question 6.15

21. We take the view that consent should be required for an assignment to an infrastructure

provider (IP) under article 9. Although the IP would have to have been appointed by

the Secretary of State or the Water Services Regulation Authority, neither of those

bodies would have a separate opportunity to consider whether the proposed transfer of

powers under article 9 is appropriate. It would be entirely within the Applicant’s

discretion as to which of the powers will be transferred (save with respect to articles 27

– 30 and 40). We do believe there should be some oversight to consider whether the IP

7

is receiving all the powers it needs. In this context, it may not be appropriate to transfer

some or all of the proposed powers without some ancillary arrangements. For example,

the IP in any event will not have the powers of compulsory purchase in articles 27 – 30

and 40. A transfer may also have a ‘knock on’ effect on the enforceability of side

agreements which may not be secured through the DCO, for example asset protection

agreements and section 106 agreements.

Question 6.16

22. As set out in our Written Representations, we do not consider that the Applicant should

be able to avoid liability for acts carried out under the DCO, irrespective of whether or

not it retains the benefit of certain provisions. In other words, the Applicant should in

effect provide an indemnity or guarantee in respect of all liabilities arising under or in

consequence of the DCO. This is because there is no means by which third parties can

be satisfied at this stage of the financial standing of any future transferee.

23. The position under the current drafting is not altogether clear. It would seem that the

likely effect of article 9(4)(b), in providing that a transfer of the benefit of a provision

does not prevent the Applicant from benefitting from that provision, is that the

Applicant will still be considered as a person who has the benefit of the DCO for the

purposes of that provision, and thus will continue to fall within the definition of

“undertaker” for those purposes. This may ensure a degree of continued liability on the

part of the Applicant. We do not consider, however, that the effect of article 9(4)(b) in

this respect is altogether clear enough. The definition of “undertaker” in article 2 is

confusing, in that it appears to assume that one person will have the benefit of the entire

DCO. Assuming that two parties can both be within the definition of “undertaker” for

the purposes of a given article, it is not clear what happens when one of those parties

incurs a liability under that article or as a result of acts carried out pursuant to it. The

Response of the Applicant does little to redress this uncertainty. It says that the benefit

of the DCO “can” be in favour of both the Applicant and the IP; but on our

understanding of article 9(4)(b) (and in order to achieve our desired result) the

appropriate word should be “will.” The Applicant appears to link liability with its

continuing to “use” the powers transferred; but “benefit” (or the entitlement to use) is

different from “use.” On our understanding of article 9(4)(b), liability is dependent on

the former and not the latter. Furthermore, we do not understand the reference to

liability remaining “at least in part” with the Applicant. The Applicant should, in our

view, retain full liability on a joint and several basis, whether in respect of its own

actions pursuant to the DCO or those of any future transferee.

24. Accordingly, we consider that this area merits further exploration by the Examining

Authority. We still think it preferable to include express provision setting out the

continuing liabilities of the Applicant, as suggested in our Written Representations.

8

Question 6.18

25. In paragraph 18.1.4, the Applicant justifies the power in article 10(2) by reference to

those contained in the Water Industry Act 1991. This raises the question of why the

power cannot be limited to (or at least based upon) the powers in that Act. They are

directed towards specific objects, i.e. the laying and maintenance of pipes in streets. If

the Applicant required to include other objects (such as the laying of apparatus other

than pipes), these could be set out and their justification could be properly assessed.

Instead, the Applicant seeks the power for any purpose of the “authorised project.”

This, as pointed out in our Written Representations, encompasses everything authorised

by the DCO, including all ancillary powers. For instance, the Applicant would, in

theory, be able to break up the street in order to make it easier for it to carry out

remedial works to a building under article 21. It is not clear that such a wide power

would be justified, at least without the sort of further controls and safeguards suggested

in our Written Representations.

26. We have made clear in our Written Representations that it is only where the powers

sought exceed those normally available to statutory undertakers that our concerns tend

to arise. In such cases, we think it appropriate that further safeguards be included—in

this case a requirement for consent when the streets affected are not particularised in

the DCO.

27. In paragraph 18.1.7, the Applicant refers to the possibility that works outside the

Order limits might enable it to use more “suitable” streets. In our submission, the

question of which streets are more or less “suitable” for use in the course of the

authorised project is properly a matter for the street authority and not the undertaker to

determine.

28. We note that the assertion in paragraph 18.1.8 would only appear relevant to the initial

construction of the project. The need for urgency, even if it is accepted, does not

explain why powers going beyond those ordinarily available (including the exclusion of

normal controls under the New Roads and Street Works Act 1991) might be required

for routine operation and maintenance.

Question 6.19

29. In paragraph 19.1.4, the Applicant refers to the “scale of the project and the dense

urban environment in which it will be constructed.” While we understand why these

considerations might add to the challenges facing the Applicant in the delivery of the

project, and might render broader powers desirable from its perspective, we note that

they also add to the degree of disruption to other activities which might be occasioned

by the project, and to the importance of ensuring that a reasonable balance is struck

between competing interests.

9

30. In the same paragraph, the Applicant justifies the powers sought in article 10 on the

basis that they are “equivalent” to those available to it under the Water Industry Act

1991. This raises the question of why the Applicant is not content simply to rely on

those existing powers (which will not be excluded in relation to the project). We have

been clear that our concerns in relation to this power are directed to those aspects which

exceed the existing statutory powers available to sewerage undertakers, for instance the

more widely phrased objects for which it may be exercised.

31. We do not consider that the prospect of unanticipated changes to the layout of the street

network entitles the Applicant to a general power of its own to alter the layout of

streets, as paragraph 19.1.5 might be taken to indicate. It would appear a rather

unattractive prospect that a highway authority might undertake costly and carefully

planned alterations to the roads in its area, only for the undertaker to reverse or revise

those changes shortly afterwards. The Applicant is not, of course, entitled to have the

road network across Greater London designed solely for the purposes of the new

infrastructure. A more proportionate approach to this situation would surely involve

some form of consultation mechanism for planned changes in the vicinity of the

authorised project.

32. In paragraph 19.1.11, the Applicant indicates that the effect of article 24 is simply to

subject the Applicant’s existing powers under the Water Industry Act 1991 (or those of

any IP to whom the benefit of the DCO were transferred) to the controls found in the

DCO. We do not agree. There is nothing in article 24, so far as we can identify, that

would serve to prevent the Applicant or an IP from carrying out works in simple

reliance on the authority of the 1991 Act, without reference to article 24 or any of the

controls in the DCO. (We expand on this point below, in response to similar

submissions made on behalf of the Applicant in the course of the First Draft DCO Issue

Specific Hearing.) We consider that the true effect of article 24 is that any transferee

which is not an IP will none the less be able to exercise the powers conferred by the

1991 Act.

33. We do not see why the difficulty exemplified by the Applicant in paragraph 19.1.13

could not be avoided through the acquisition of suitable rights of access in the

conventional manner.

Question 6.20

34. The Applicant suggests, in paragraph 20.1.2, that it is not in the Applicant’s interests

to stop up any more highway than necessary, and that the draft DCO “reflects” this “by

expressly linking any stopping up to the purposes of the authorised project.” We remark

that a condition that something be “for the purposes of” the authorised project does not

amount to a test of necessity. Many things could be done “for” a given purpose without

being necessary to achieve that purpose.

10

35. In paragraph 20.1.4, the Applicant cites various precedents in which a power has been

approved in the form presently drafted, and suggests that there is no reason to strike a

different balance in this case. We are not aware that any of the precedents cited relate to

projects carried out, as this one would be, in a large stretch of densely used and heavily

built urban environment. The scale of disruption to existing activities and uses is likely

to be far more significant with this project, and we would consider it legitimate for the

Examining Authority to conclude that a different balance should be struck in this case

between the competing interests.

Question 6.23

36. We have studied with care the Applicant’s submissions about which of the powers

sought amount to compulsory acquisition (in particular annex 6.23.01).

37. We accept that there is a legitimate conceptual distinction to be drawn between the

acquisition of a proprietary estate or interest in land and the conferral of a statutory

right or power in relation to land. We further accept that, in some contexts, the term

“compulsory purchase” might be taken to refer only to the former: see Halsbury’s

Laws, Vol. 18, 5th

ed. (2009), para. 501. On the other hand, we note that the matter

must be considered in the context of the particular legislation in question, and that

sections 159(2) and (3) and 235(2) of the 2008 Act combine to produce a very broad

definition of compulsory acquisition so far as it involves the creation of new rights over

land. This definition is not necessarily consistent with a highly technical view of

compulsory acquisition as limited to those sorts of right which are strictly proprietary in

character.

38. In relation to one of the specific examples given by the Applicant of a power or right

not amounting to compulsory acquisition, i.e. that of laying and keeping pipes under the

Water Industry Act 1991, we note that the exercise of a similar power to “construct” a

sewer in land has in fact been held to amount to compulsory acquisition: see Taylor and

another v. North West Water Ltd. [1995] 1 EGLR 266 (in relation to section 15 of the

Public Health Act 1936 (repealed)).

39. We prefer to reserve our position for the time being on the extent to which the powers

sought in the draft DCO to authorise the interference with or use of land might amount

to compulsory acquisition within the meaning of the 2008 Act. Even assuming that the

Applicant is legally correct in its submissions, however, we suggest that a high degree

of caution is required as a matter of policy in deciding to grant powers which would

confer much of the same practical advantages in terms of land-use (and inflict much of

the same practical deprivation on the landowner) as full acquisition, but which were

devised so as to circumvent the well-established controls and safeguards attendant on

compulsory purchase.

11

40. We also draw attention to the well-established legal proposition that any interference

with private rights of property generally requires specific and express statutory

authority. While the 2008 Act plainly authorises compulsory acquisition, it is more

questionable the extent to which it should be taken to authorise the appropriation or

alteration of land without acquisition. The most relevant provision is that made by

paragraph 2 of Schedule 5, which enables a DCO to provide for “interference with…

interests in or rights over land.” Whether or not this general wording is sufficient to

authorise the carrying out of compulsory works to private buildings, or indeed the

assumption of full possessory rights to land, without the acquisition of any proprietary

estate or interest is, in our opinion, doubtful. We reserve our final position on this

matter until we have had the opportunity to consider the most recent proposals of the

Applicant, and to take any necessary advice.

41. In respect of article 20 in particular, it should be noted that the power is by no means a

“temporary” one, pace the Applicant’s assertion in paragraph 23.1.1. As we have

pointed out in our Written Representations, the works could be carried out “at any time

before or during the carrying out in the vicinity of the building of any part of the

authorised project”; and the carrying out of the authorised project includes the

operation and maintenance of the infrastructure subsequent to its construction. Nor is

the power confined to “identified” works, as the Applicant indicates in paragraph

23.1.4 (assuming that “identified” here means “particularised”). The power extends, by

virtue of paragraph (11), to any works the purpose of which is to prevent damage to a

structure which is mentioned in Schedule 11, whether or not the works themselves are

listed in that Schedule.

Question 6.28

42. We welcome the clarification offered by the Applicant about the intended interaction of

articles 25 and 26. We consider that the drafting should be amended to reflect this

intention expressly, in accordance with the Applicant’s offer in paragraph 28.1.3.

Question 6.29

43. We accept, as the Applicant points out in paragraph 29.1.2, that the DCO could

legally authorise interference with trees in conservation areas in such a manner as

would avoid the notification requirements in section 211 of the Town and Country

Planning Act 1990. The question is, however, whether or not the Examining Authority

ought to agree to include such authorisation as part of the present application.

44. The main purpose of the notification requirements is to give the local planning

authority an opportunity to consider whether a tree preservation order should be made

(see R. v. North Hertfordshire District Council, ex parte Hyde [1989] 3 PLR 89). Given

that the DCO will maintain stricter controls in relation to trees subject to preservation

orders than in relation to other trees, it would seem appropriate that the local planning

12

authority should continue to have the opportunity to determine whether a given tree

ought to be protected by a preservation order before it is felled.

45. It is not correct to state, as the Applicant does in paragraph 29.1.3, that the effect of

paragraph 10(1) of Schedule 19 is to exclude the requirements of section 211. That

paragraph only applies to orders, notice and regulations under the Act, while the

prohibition in section 211 is contained in the section itself and does not depend on any

order, notice or regulation.

Question 6.31

46. In paragraph 31.1.1 the Applicant states that it proposes to acquire, “all such land and

rights as are necessary for the authorised project to remain in its constructed and

permanent position.”

47. However, in relation to permanent works which are constructed on land under article

34, there is no provision that would require the Applicant to acquire such land or rights.

Indeed article 34(7) may preclude the Applicant from doing so, unless all permanent

works listed in Schedule 14 are confirmed to be subsoil works. It is unclear to us how

the acquisition of the permanent works is intended to be secured, particularly once the

benefit of article 34 is transferred to the IP.

Question 6.33

48. For the reasons given in relation to Question 6.23 above, we reserve our position on

whether or not the power sought in article 47 of the draft DCO technically amounts to

compulsory acquisition within the meaning of the 2008 Act, at least until we have had

the opportunity to give the matter fuller consideration in the light of the Applicant’s

response to the representations already made to the Examining Authority.

49. Notwithstanding the correct answer to this, there is no doubt that the power sought

would authorise a wide degree of interference with private land, which in some respects

would be akin to the direct creation of an easement or some similar proprietary interest.

Caution is therefore necessary in determining the appropriateness of such a power and

its limits, both for reasons of policy and in view of potential objections as to vires as

adumbrated in relation in Question 6.23.

Question 6.35

50. In paragraphs 35.1.11, 35.1.14, 35.1.18, and 35.1.22, the Applicant refers to the

potential need to obtain planning permission for certain works authorised by the DCO

but outside the Order limits. It is our opinion that the exclusion of the Town and

Country Planning Act 1990 in the form currently sought by the Applicant would render

this impossible. We expand on this in relation to Question 6.72, below.

13

Question 6.48

51. For the reasons given in relation to Question 6.23 above, we reserve our position on

whether or not the power sought in article 47 of the draft DCO technically amounts to

compulsory acquisition within the meaning of the 2008 Act, at least until we have had

the opportunity to give the matter fuller consideration in the light of the Applicant’s

response to the representations already made to the Examining Authority.

52. Putting the technicalities to one side, the power would, as explained in our Written

Representations, clothe the Undertaker with what amounted to a full possessory title to

the affected land, while correspondingly depriving the landowner of any beneficial use.

To all practical intents and purposes, the land would have been acquired by the

Undertaker, at least for the duration of the exercise of the power. However, on the

Applicant’s case, the controls on compulsory acquisition laid down by the 2008 Act

would be avoided, simply because no estate or interest was acquired which was

technically proprietary in character. The concerns we have stated in relation to Question

6.23, both as a matter of policy and of legislative vires, would therefore seem to apply

with especial force here.

53. It may be important to bear in mind, in this context, that in such an intensively

developed environment as the City of London, subsoil and air-space can be valuable

property in their own right, commanding significant capital value.

54. We turn to respond to some of the Applicant’s more specific points.

55. In paragraph 48.1.3 (and paragraph A.5.3 of Appendix 6.23.01), the Applicant

indicates that article 47(1) equates appropriation with use. For the reasons given above,

we do not consider that this would affect the proper classification of the power for the

purposes of the 2008 Act. However, we note that article 47(1) does not indicate that

appropriation is the same thing as use: the right to “appropriate” and the right to “use”

are laid out as distinct and consecutive elements of the power. In other words, the right

to use is given in addition to that to appropriate, rather than the two terms being used

synonymously.

56. In paragraph 48.1.4 (and in paragraph A.5.4 of Appendix 6.23.01), the Applicant

seeks to draw guidance about the proper meaning of “appropriate” from the provisions

of Part IX of the Town and Country Planning Act 1990. We do not consider that any

helpful guidance can be drawn from this example. “Appropriation” is there used in a

distinct technical sense to refer to the treatment of land acquired under one enactment

as if it had been acquired for the purposes of another. It does not involve any

interference by one person with land owned by another. This is clearly very far

removed from the power to appropriate with which we are concerned. “Appropriate” is

used here in a sense more akin to that found in the criminal law, i.e. the assumption of

14

the rights of an owner in relation to property belonging to another (see section 3 of the

Theft Act 1968).

57. In paragraph 48.1.7, the Applicant asserts that the power is intended to be a temporary

one. This is not the effect of the present drafting. As noted in our Written

Representations and above, the power may be exercised “for the purposes of the

authorised project,” which expression encompasses not only the initial construction of

the infrastructure but also its subsequent operation and maintenance, as well as the

exercise of any ancillary power. There is no time limit on the period for which land

may be appropriated, nor is a given exercise of the power to be exhausted by the

completion of any particular works.

Question 6.49

58. In paragraph 49.1.1, the Applicant indicates that article 47(3) protects structures “in

the street, or above the street.” The current draft does not use the word “above.” While

it is possible that a projection from a building into the airspace above a street might be

considered as “in” or “on” the street, this would not appear clear as a matter of the

ordinary usage of those words. Moreover, it is conceivable (particularly in the City) that

buildings might include projections over a street even if they did not directly front onto

that street, for instance in the case of elevated walkways. It is for this reason that we

suggested in our Written Representations that the article be amended to make explicitly

clear that the power to appropriate without acquiring a legal interest does not apply to

parts of buildings or other structures projecting above a street.

Question 6.54

59. In the light of the indication given on behalf of the Applicant in the course of the First

Draft DCO Issue Specific Hearing that provisions relating to deemed consent would be

withdrawn, we offer no further comment on this matter.

Question 6.59

60. We note that in paragraph 59.1.1 the Applicant has listed four articles where there is

specific reference to arbitration. It is not clear to us whether disputes arising in relation

to consents that are not referred to article 53(1) would be better referred to arbitration or

dealt with by some other dispute mechanism. If the former, then it may be questioned

whether the President of the Institution of Civil Engineers is the right person to make

the appointment of the arbitrator on all occasions.

Question 6.66

61. In the light of the indication given on behalf of the Applicant in the course of the First

Draft DCO Issue Specific Hearing that provisions relating to deemed consent would be

withdrawn, we offer no further comment on this matter.

15

Questions 6.67 and 6.68

62. The COL remain of the view that a minimum time-scale of 8 weeks will be required. In

the Crossrail Act 2008 the more usual 8 weeks was given for all approvals (see

paragraph 30 (2) of Schedule 7 of the 2008 Act). However the COL found that this

time-scale was tight in relation to some complex issues.

63. We have noted (as the Applicant point out in paragraph 68.1.3 of their Response) that

the time period is extended where the discharging authority applies for further

information. However, the timescale by when that request can be made is very tight,

and in our opinion unreasonable where the issue is complex. It is a mere 7 business

days from receipt of the application. If that time limit is missed, the 5 or 8 week time

limit will not be extended at all, even if subsequently the undertaker supplies requested

further information. Indeed, paragraph 2(4) precludes the authority from even

requesting further information if the 7 business day deadline is missed. In reality the

process of review may reasonably take two or three weeks. Once the additional

information is received, further information may be required as a result. This further

requirement for information does not extend the time limit.

64. In relation to a consultee, it is unreasonable to expect the authority to have issued the

consultation to any required consultee within 1 business day of receipt of the

application. The authority may wish to have at least done a preliminary review of the

application before doing so and raise preliminary issues with the consultee. This

process may in fact work to speed up the process of approval. We would suggest 5

business days is a suitable compromise.

Question 6.72

65. In paragraph 72.1.1, the Applicant suggests that the scheduled requirements (and in

particular the Code of Construction Practice) will to some extent fill the place of the

statutory controls excluded by Schedule 19. Insofar as this might be the case, it is

important to note that the requirements are largely directed to the initial construction of

the infrastructure (and indeed the project-wide Code of Construction Practice is

expressly so confined), while the legislative exclusions all extend (as noted in our

Written Representations) to the operation and maintenance of the infrastructure.

Therefore the mitigation provided by the requirements is partial at best.

66. In paragraph 72.1.2, the Applicant asserts that legislation has only been excluded where

“necessary.” It is our view that the Applicant has not done enough, whether in the

Explanatory Memorandum which accompanied the draft DCO or in the Response with

which we are currently concerned, to demonstrate in detail the practical necessity of the

various exclusions sought.

67. In the same paragraph, the Applicant repeats its assertion that local legislation is only

excluded insofar as “inconsistent” with the DCO. We have already noted in our Written

16

Representations that this would not appear to be correct: the very broad exclusion in

article 56(2)(k) is subject to no criterion of inconsistency. The effect of the words, “in

particular,” which open paragraph (2) is obscure, as it is in fact clear that the paragraph

goes beyond the scope of paragraph (1), not least in that it applies to unscheduled

enactments. In any event, for the reasons given in our Written Representations, the

criterion as presently drafted imposes no limitation of real substance on the scope of the

exclusions.

68. We turn now to consider the submissions of the Applicant in relation to the exclusions,

as found in Appendix 6.72.01. As a general preliminary point, we draw attention to the

Applicant’s method of relying on various “controls” within the DCO, which, it is said,

“would ensure that the public interest objective underlying the excluded provision

would continue to be met, without undue interference to the effective and efficient

implementation of the project.” The natural concomitant of this, of course, is that the

scope of the exclusions should not generally exceed that of the controls which take their

place. This is of particular (although by no means exclusive) relevance in connection

with our concerns about the continued effect of the exclusions beyond the period of

construction, when, as the remarks below will illustrate, many of the “controls” cited by

the Applicant will not apply.

Highways Act 1980

Section 141

69. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3.

70. It is difficult to see how the contents of Schedules 1 and 2 would serve as a control on

the planting of trees. No mention of such planting appears in Part 1 of Schedule 1,

while Part 2 of that Schedule authorises in entirely general terms “works to trees and

landscaping not comprising development.” Of the plans in Schedule 2, the works plans

in Part 1 appear to have effect only to determine the Order limits and limits of

deviation, the land plans in Part 2 are relevant only to compulsory purchase, the access

plans in Part 2 are relevant only to rights of way and of navigation, and the approved

plans in Part 4 are largely confined to illustrations of demolition work, site clearance

and site parameters.

71. Schedule 3 would include controls on the planting of trees, through the landscaping

details which are required to be submitted to and approved by local planning

authorities. It is not at all clear, however, that the drafting of the relevant requirements

is apt to encompass all of the works authorised by the DCO which might involve the

planting of the trees. For instance, while details of all landscaping works must be

submitted, it is only in relation to the “authorised development” that a direct obligation

is imposed to abide by the details. This would not include the planting of trees

authorised by Part 2 of Schedule 1, which excludes works amounting to development.

17

Nor is it clear whether subsequent works under the power of maintenance in article 5

would be bound to the same extent as the initial construction.

72. Accordingly, we maintain that the exclusion of section 141 should only apply in

relation to planting details of which have been submitted to and approved by the local

planning authority pursuant to a requirement listed in Schedule 3. It is only to this

extent that the controls cited by the Applicant can justify the exclusion.

Section 167

73. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3.

74. Schedules 1 and 2 would not appear to provide any proper means of control or scrutiny

in relation to the erection of retaining walls. Schedule 3 would include controls on the

erection of retaining walls, through the requirements for the detailed design approval of

above-ground structures. It is not at all clear, however, that the drafting of the relevant

requirements is apt to encompass all of the works authorised by the DCO which might

involve the erection of retaining walls, particularly in relation to walls which may be

partly below ground or to works carried out under the power of maintenance.

Accordingly, we maintain that the exclusion of the provisions relating to the erection of

retaining walls (i.e. subsections (2) to (4)) should only apply to the extent that details of

the wall have been submitted to and approved by the local planning authority pursuant

to a requirement listed in Schedule 3. This would more precisely align the extent of the

exclusion with the controls cited by the Applicant to justify the exclusion.

75. None of the controls cited by the Applicant would appear to have any relevance to

walls which have in fact become a danger to persons using the street. They do not,

therefore, fulfil the “public interest objective” of subsection (5), and do not justify the

exclusion of highway authorities’ powers to protect public safety in respect of such

walls. We maintain the view expressed in our Written Representations that subsection

(5) should not be excluded.

Sections 169(1), 172 and 173

76. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3. Schedules 1 and 2 would not appear to provide any proper

means of control or scrutiny in relation to scaffolding or hoarding. Schedule 3 would

import certain requirements about hoarding, through the Code of Construction Practice,

Part A. However, this only applies to the construction of the project; and, in any event,

it is a weaker form of control (involving no process of approval by the local authority)

which would only be justified in the special circumstances of the construction of the

infrastructure. Therefore the controls cited by the Applicant do not justify the continued

exclusion of section 172 and 173 beyond the construction period.

18

77. Since the submission of our Written Representations, we have reviewed the Code of

Construction Practice and found that it does not mention scaffolding. There does not

appear to be any other requirement in Schedule 3 which is relevant to scaffolding. It is

hard to see, therefore, how the controls cited by the Applicant have any relevance to the

“public interest objective” of section 169(1). Accordingly, in addition to maintaining

the view that the exclusion of section 169(1) should not extend beyond the construction

period, we would question whether the exclusion is appropriate even during that period

(unless the Applicant is able to point to some further means of control which might

have escaped our attention).

Building Act 1984

78. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3.

79. Schedules 1 and 2 would not appear to provide any equivalent form of control to that

found in the Building Regulations. While Schedule 3 does include some requirements

which might sensibly take the place of the Regulations to a certain extent, we are by no

means satisfied that the cumulative effect of the requirements is of comparable scope.

In addition, there are the uncertainties we have expressed above in relation to other

exclusions about the application of these requirements to works not amounting to

development or to works carried out subsequently to construction under the power of

maintenance. Accordingly, in the continued absence of any detailed explanation of the

adequacy of the controls cited by the Applicant, we maintain the view that insufficient

assurance has been received to permit the exclusion of the Regulations.

New Roads and Street Works Act 1991

80. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3.

81. Schedules 1 and 2 would not appear to provide any means of controlling the disruption

caused by street works in the course of the project. Therefore they do not serve the

same purpose of the provisions sought to be excluded.

82. As for Schedule 3, the only specific requirements referred to by the Applicant (in

relation to sections 56(1) and (1A), 58(1), 74 and 74A of the 1991 Act and the various

relevant provisions of Schedule 3A thereto) are those relating to phasing. These are,

however, non-binding and for the information of local authorities only. They only serve

to denote the general timing and location of works, and do not go into the sort of detail

covered by the excluded provisions. Importantly, they are only relevant to the initial

construction of the infrastructure, and not to its subsequent operation and maintenance

(both of which currently attract the powers to execute street works).

19

83. The Applicant also refers to the site-specific requirements relating to highway works.

These, however, would only appear to relate to the design and layout of certain

specified highways after works on them have been completed, and not to the disruption

caused in carrying out the works. They are therefore of little relevance to the function

of the excluded provisions.

84. Of greater relevance might be the various site-specific requirements to submit

construction traffic management plans. These, however, nominally relate only to the

works of construction, and would not seemingly apply to works carried out in the

course of the subsequent operation and maintenance of the infrastructure.

85. Accordingly, nothing in the various controls cited by the Applicant would appear to

provide any support for the exclusion of the identified provisions of the 1991 beyond

the period of construction.

Traffic Management Act 2004

86. The submissions given above in relation to the New Roads and Street Works Act 1991

are repeated.

Party Wall etc. Act 1996

87. The controls cited by the Applicant in support of this exclusion are the fact of the

project’s authorisation in article 3 and, in relation to the exclusion of section 1(2) and

(5) and that of sections 1(6) and 2, the notification requirements found in article 21.

88. These would only appear relevant to the provisions relating to notice, as found in

section 1(2) and (5). Presumably the underlying contention of the Applicant is that

there is no need to give notice of new building in the course of the authorised project,

as sufficient details are available in the documentation published as part of the

application.

89. We fail to see how this furnishes any justification for the exclusion of the substantive

private rights conferred by the excluded provisions. The purpose of the notices required

by section 1(2) and (5) is not simply to inform the adjoining owner of the intended

building but rather to engage the substantive rights and obligations contained in the

other provisions of that section. Sections 2 and 6, moreover, confer substantive rights

without any precondition of notice (although section 6 does include notification

requirements). The essence of the excluded provisions is not the notification of

adjoining owners but rather the conferral of rights to take practical measures to protect

their interests.

90. Therefore the Applicant has cited no provision of the DCO which would in any way

“ensure that the public interest objective underlying the excluded provision[s] would

continue to be met.” Nor has it provided any reasoning to the effect that that public

20

interest objective must give way to some other imperative in the circumstances of the

project. Accordingly, in the light of the Applicant’s submissions, we are minded to

oppose this exclusion outright, subject to any further justification which the Applicant

might offer.

Planning (Listed Buildings and Conservation Areas) Act 1990 etc.

91. The controls cited by the Applicant in support of this exclusion are the requirements in

Schedule 3 and the protective provisions in Schedule 16.

92. Of the requirements specifically cited, requirement PW9 applies only “during

construction or to mitigate the effects of construction.” Moreover, it is relevant only to

listed buildings and not to conservation areas. Requirement PW10 is of limited scope,

applying as it does only to the demolition or removal of certain heritage assets.

93. The protective provisions in Schedule 16 are also highly limited in scope, in that they

are confined to the interests of specified bodies. They are plainly not an adequate

substitute for planning control.

94. Therefore we see nothing in the controls cited by the Applicant which would justify this

exclusion beyond the period of construction. Nor, for that matter, do we consider the

exclusion justified during the period of construction in relation to works not fully

particularised in the application or otherwise not within the development consent

granted by article 3 (for instance unscheduled works carried out under articles 20 or

21). In relation to the latter case, the Applicant has accepted that planning permission

will be required for development outside the Order limits (although see our submissions

below on the exclusion of the Town and Country Planning Act 1990), so it is difficult

to see why listed building consent should not likewise be required.

Local Government (Miscellaneous Provisions) Act 1976

95. We do not agree with the Applicant’s description of the effects of this exclusion. The

normal effect of section 46 of the 1976 Act would not be to make the DCO subject to

“future local acts,” but to make it subject to the existing enactments relating to town

and country planning, historic buildings and ancient monuments, and deposits in the

sea.

96. Having noted this, we do not object to the substance of the exclusion.

Town and Country Planning Act 1990

97. These comments relate only to the exclusion in paragraph 10(1) of the Schedule.

98. In describing “the usual effect of the legislation referred to,” the Applicant refers to

“special controls in relation to trees.” In describing “the effect of the exclusion,” the

Applicant states that it would “not have to comply with restrictions relating to

21

trees/plants.” Under the head of “relevant DCO provisions,” the Applicant refers to

articles 25 and 26, both of which deal with trees.

99. This falls some way short of providing an accurate account of the nature of the

exclusion sought. Paragraph 10(1) applies, in what we presume to be deliberately wide

drafting, to any “order, notice or regulation under the Town and Country Planning Act

1990 in relation to the preservation or trees, the state of land or any other matter”

(emphasis supplied). In other words, it would exclude any “order, notice or regulation”

under the Act, irrespective of the subject-matter.

100. A more helpful (although not necessarily complete) list of the provisions which would

be excluded on the face of this provision might proceed along the following lines:

- Development orders under section 59 (including the General Permitted Development

Order, which contains permitted development rights for sewerage undertakers).

- Local development orders under section 61A.

- Neighbourhood development orders under section 61E.

- Environmental Impact Assessment regulations made under section 71A.

- Provisions which may be made by development orders by virtue of section 74.

- Notices of appeal to the Secretary of State under section 78.

- Notices of refusal after an appeal has been made under section 78A.

- Completion notices under sections 94(2) and 96(1).

- Orders revoking or modifying planning permission under sections 97 and 100.

- Orders requiring the discontinuance of, or imposing conditions on, the use of land,

or requiring the alteration or removal of buildings, under sections 102 and 104.

- Notices of the intended enforcement of planning obligations under section 106(7).

- Notices of the determination of applications for the modification or discharge of

planning obligations under section 106A(7).

- Notices of appeal against the determination of applications for the modification or

discharge of planning obligations under section 106B(3).

- Regulations governing claims for compensation against local planning authorities

under sections 107, 115, 186, 223 and 250 (see section 336(1) (“prescribed”)).

- Compensation notices under section 111.

- Purchase notices (and the regulations governing the service of such) under section

137.

- Notices requiring the purchase of blighted land under section 150 (and counter-

notices under sections 151 and 152).

- Planning enforcement orders under section 171BA.

- Planning contravention notices under section 171C.

- Temporary stop notices under section 171E.

22

- Enforcement notices under sections 172 and 182.

- Regulations governing appeals against enforcement notices under section 175 and in

respect of the execution of such notices under section 178(3) to (5).

- Stop notices under section 183.

- Breach of condition notices under section 187A.

- Provisions made by development orders in relation to applications for certificates of

lawful use under section 193.

- Tree preservation orders under sections 198 and 202.

- Tree preservation regulations under section 202A.

- Notices requiring the reinstatement of trees under section 207 (and regulations

governing appeals against such notices under section 208(4)(c) and in respect of the

execution of such notices under sections 209 (3) to (5)).

- Notices of intent to interfere with trees in conservations areas under section

211(3)(a).

- Regulations for the disapplication of section 211 under section 212.

- Notices requiring the proper maintenance of land under section 215 (and regulations

in respect of the execution of such notices under section 219(3) to (5)).

- Regulations for controlling the display of advertisements under section 220.

- Notices of intent to obliterate placards and posters or to remove structures used for

unauthorised displays under sections 225(3) and 225A(3).

- Action notices under section 225C.

- Defacement notices under section 225F.

- Notices and counter-notices in respect of the intended use of powers in relation to

undertakers’ land under section 225K.

- Orders requiring the acquisition or development of land under section 231.

- Notices of intent to dispose of land held for planning purposes under section

233(4)(a).

- Orders for the stopping up or diversion of highways under sections 247 and 248

- Orders extinguishing the right to use vehicles on highways under section 249.

- Orders extinguishing public rights of way under sections 251, 257 and 258.

- Regulations governing concurrent proceedings in connection with highways under

section 255.

- Orders for the stopping up or diversion of footpaths and bridleways under section

257.

- Notices and counter-notices in respect of the extinguishment of undertakers’ rights

under section 271, or those of electronic communications network operators under

section 272.

- Notices and counter-notices in respect of the removal or re-siting of apparatus under

section 273.

23

- Orders extending or modifying the powers and duties of undertakers under section

275, or relieving undertakers from obligations under section 276.

- Notices of the exclusion of section 280 given by undertakers under section 281.

- Regulations concerning fees for applications and appeals under sections 303 and

303ZA.

- Regulations modifying the application of the Act to the land of or development by

planning authorities under sections 316 and 316A.

- Notices in respect of ecclesiastical property under section 318.

- Regulations concerning the procedure on certain appeals and applications under

section 323.

- Notices of intent to exercise a right of entry for the purposes of surveying under

section 325(1)(b).

- Notices requiring the provision of information about landlords’ interests in land

under section 330.

101. We would have significant objections to the exclusion of certain of these provisions.

We do not expand on this at present, though, as we do not think that such a wholesale

exclusion of the planning system (which would render its basic machinery inapplicable

or inoperable in respect of the entirety of the authorised project) can in fact represent

the true intention of the Applicant. This is because the Applicant acknowledges the

need for separate planning permission for certain forms of development authorised by

the DCO (and thus falling within the meaning of the “authorised project” under article

2): see in particular paragraphs 35.1.11, 35.1.14, 35.1.18, and 35.1.22. Exclusions of

the breadth currently proposed would make it impossible that such matters could be

dealt with through the ordinary planning process.

102. We therefore reiterate the submission made in our Written Representations that the

Applicant should specifically identify and justify the provisions of the 1990 Act that it

wishes to exclude in relation to the project, and to what extent. Given the number of

provisions potentially in issue, little more can usefully be said on our part until greater

particularity is forthcoming. We note, however, that the extent to which the regime

introduced by the Planning Act 2008 should supersede that of the 1990 Act will have

been very carefully considered and given effect in the drafting of the 2008 Act, and that

further widespread exclusions of the 1990 Act through the general medium of section

120(5) of the 2008 Act are therefore unlikely to be appropriate.

Flood and Water Management Act 2010

103. The Applicant states in Appendix 6.72.01 that matters in relation to flood protection

will be controlled through, among other means, “arrangements being entered into

between Thames Water and authorities responsible for such matters.” We would

mention that the City of London Corporation is a flood authority, but we do not seem to

24

have received any details of the proposed arrangements. We would be pleased to have

clarification on this point.

National Parks and Access to Countryside Act 1949

104. The controls cited by the Applicant in support of this exclusion are said to be provided

by Schedules 1, 2 and 3, and by articles 14 and 15.

105. We fail to see how anything in these “controls” would meet the “public interest

objective” of the provisions of the 1949 Act which the Applicant seeks to exclude, i.e.

the advisory designation of the Thames Path as a route along which the public should

be able to make extensive journeys on foot. Indeed, article 14 proposes to stop up part

of the Path without providing an alternative right of way. The Applicant offers no

reason why this project might in any way affect the desirability of a long-distance

pedestrian route besides the Thames, nor any explanation of what practical effect it

seeks to achieve by excluding the 1949 Act. Accordingly, we reiterate our opposition to

this exclusion.

Control of Pollution Act 1974

106. We note, further to the point made in our Written Representations, that no reason is

offered by the Applicant why underground tunnelling should be placed altogether

outside the scheme of sections 60 and 61 of the 1974 Act, while powers in respect of

other works are simply made subject to a duty to “have regard” to the Code of

Construction Practice. The Code and the other requirements would not appear to

contain any greater controls on noise arising from underground tunnelling than that

arising from any other works. In the absence of any reasoned justification for affording

special treatment to underground tunnelling, we are minded to oppose this exclusion.

Local legislation

107. We are grateful for the further explanation provided by the Applicant of the reasons for

seeking to exclude the particular enactments listed in Part 2 of Schedule 19. We will be

reviewing those which affect the City of London with a view to identifying any

potential adverse effects, and may offer further submissions in due course.

108. The proposed exclusion of the City of London (Various Powers) Act 1967 is of

particular relevance to the potential designation of the new foreshore structure at

Blackfriars Bridge as a city walkway. We are currently considering proposals from the

Applicant received on 27th

November, and will continue to liaise with them.

PART 5 FURTHER MATTERS RELATING TO THE DCO

109. This would appear to be an appropriate juncture to mention certain additional matters

which do not arise from the Applicant’s Response but rather from submissions made on

its behalf in the course of the First Draft DCO Issue Specific Hearing. In the course of

25

preparing for that hearing, further questions also came to mind about the drafting of the

requirements, which it might be helpful to set out now.

Statutory nuisance

110. It was indicated by Counsel for the Applicant that article 7(1) of the draft DCO was

intended to displace the wider defence to proceedings for nuisance which is

provisionally made available by section 158 of the 2008 Act, i.e. that it would serve as

“contrary provision” for the purposes of section 158(3) of the Act. We had not

previously considered article 7 in the light of section 158, as we had taken the latter to

refer to nuisance at common law rather than to statutory nuisance under the

Environmental Protection Act 1990. If article 7(1) is indeed intended to have the effect

of disapplying a defence which would otherwise be available under section 158, it

would make for better drafting, in our view, to set this out expressly. At present, the

article is expressed in terms which would appear to indicate the provision of a new

defence rather than the curtailment of an existing one, and while the inclusion of

specific provision in the DCO might be taken to exclude by implication the wider

defence under the 2008 Act, this is not necessarily or self-evidently the case.

Parallel powers

111. In the course of discussion about the power sought in article 35 of the draft DCO, the

question was raised why the Applicant could not rely on the powers of entry for

temporary works purposes that it enjoys under the Water Industry Act 1991. Counsel

for the Applicant responded to the effect (if we understood correctly) that the Applicant

wished for all of the powers exercisable in relation to the project to be brought together

in one place, where they would be subject to the same constraints and controls. (This in

fact reflects, we see, a submission made by the Applicant in paragraph 19.1.11 of its

Response.) This is something which would be relevant not only to the power in article

35 but to a number of other powers sought, such as that of executing street works in

article 10.

112. We do not consider that the DCO as currently drafted reflects this proposition. It would

not appear to contain anything which would preclude the Applicant (or another IP to

whom the benefit of the DCO was transferred) from relying on its existing powers

under the 1991 Act or other legislation in respect of matters within the scope of the

project. Therefore we would not be in a position where all of the powers relevant to the

project were brought into one place and subject to the same constraints, but one where

the Applicant or IP would have the benefit of two parallel regimes between which it

could pick and choose according to its advantage in any given case.

113. It may therefore be appropriate, in order to give effect to the thrust of the Applicant’s

submissions, to include provision which would either preclude reliance on any parallel

power for activities within the scope of the authority conferred by the DCO, or

26

alternatively make the exercise of any parallel power subject to the requirements and

other controls contained in the DCO.

Temporary works powers

114. The Applicant’s reliance on the Water Industry Act 1991 in support of the power

sought in article 35 of the draft DCO invites a closer comparison of the temporary

works powers provided by that Act and those sought in the DCO as presently drafted.

The relevant powers in the 1991 Act would appear to be those found in sections 159

(which confers a power to lay and maintain pipes in private land) and 168 (which

confers a right of entry onto land for the purposes (inter alia) of exercising the power

conferred by section 159).

115. Although we have not conducted a full analysis, it would appear that the powers in the

1991 Act are subject to certain controls and safeguards which are not found in the draft

DCO. They are as follows:

- Section 181 of the 1991 Act enables a person to complain to the Water Services

Regulation Authority if an undertaker has exercised its powers unreasonably or

without adequate consultation, and to be awarded compensation.

- Section 182 of the 1991 Act requires the undertaker to draw up and submit to the

Secretary of State a code of practice for the exercise of powers on private land.

- Paragraph 8 of Schedule 6 to the 1991 Act requires a person executing a power of

entry to produce evidence of his authority.

- Paragraph 10 of Schedule 6 to the 1991 Act requires an undertaker to secure

premises against access by trespassers as effectually as they were secured before the

exercise of a power of entry.

116. We would therefore ask for consideration to be given to the appropriateness of

including equivalent provision in relation to the temporary works powers in the DCO

(assuming that they are retained notwithstanding our Written Representations).

117. We also note that Schedule 12 of the 1991 expressly identifies depreciation in the value

of land as a separate head of compensation in respect of the exercise of works powers.

We would like to be assured that this is covered by the simple reference to “loss or

damage” in the current draft.

118. It might be interesting to note that the equivalent power in the recently published High

Speed Rail (London - West Midlands) Bill to that sought in article 35 of the draft DCO

is rather more narrowly confined. The power in the Bill (as contained in Part 2 of

Schedule 15) is limited to land which is both within the Act limits and within a distance

of 20 metres of the work to be maintained. Furthermore, it applies only for a period of

five years after the relevant work is brought into use.

27

Requirements

119. The first point concerns not the drafting of the scheduled requirements, but the manner

in which they are given effect. The scope and effect of the provisions of a schedule

depend, of course, on the provision in the main body of the instrument by which they

are introduced. We have the following concerns:

119.1. To what extent do the requirements operate outside the Order limits?

119.2. To what extent are the requirements limited to the construction phase of the

project?

119.3. Even if the requirements could be phrased so as to apply post-construction, so

that the undertaker is required to comply with the Design Principles, the Code

of Construction Practice and the related plans, those requirements are not

designed to last for the life-time of the project. Policies and the needs of

society change over time. It would preferable if there was a requirement for a

maintenance plan to be submitted on the ten yearly basis, which would allow

for replacement or modified requirements to be attached and a consultation

process to take place in relation to specified activities.

120. We have addressed elements of those issues below.

121. The approach taken in the DCO is to attach the requirements to the authority conferred

by articles 3 and 4. This is, however, only part of the authority conferred by the DCO as

a whole. First, article 3 does not authorise any work outside the Order limits. Secondly,

there are a number of other powers exercisable within the Order limits which do not

depend on the development consent granted by that article. For instance, the combined

effect of articles 10 and 50 is that development consent is not required for street works

executed under the DCO. Powers such as that of temporary stopping up or traffic

regulation likewise do not depend on development consent. Indeed, works of routine

maintenance authorised by article 5 would not appear to depend on development

consent (leaving to one side the separate issue about works of maintenance potentially

amounting to development). Nor would any of these appear to rest on the “consent”

granted by paragraph (b) of article 3, in that the relevant articles appear to confer

entirely free-standing powers. Article 4, meanwhile, relates only to the operation of the

new infrastructure.

122. One reading of the present draft would be that the requirements are only intended to

apply in relation to works carried out under the authority conferred by articles 3 and 4.

This would leave considerable and, we presume, unintended gaps in the coverage of the

requirements. We accept that this is not the only possible interpretation of the wording.

The intention is probably that the scope of the requirements attached to articles 3 and 4

be assessed disjunctively from that of the positive authority granted by those articles,

28

i.e. that the entitlement of the undertaker to carry out the development within the Order

limits, and then to operate the infrastructure, depends on its compliance with the

requirements across their full scope as determined on the basis of the wording of

Schedule 3 taken in isolation.

123. This would seem, however, a needlessly sophisticated approach to adopt (although we

accept that the Applicant has done no more than replicate the Model Provisions in this

respect). We consider that it would be far more straightforward, as a matter of drafting,

to deal with the requirements in a separate article, laying down simply that all activities

within the scope of the authority conferred by the DCO are subject to the requirements

in Schedule 3. (The term “authorised project” could be used on the current definition,

although not the one we have suggested in our Written Representations). If any

particular requirements are intended to be more limited in scope, this could then be

made clear in their individual drafting. This would, it seems, avoid any unnecessary

ambiguity or room for future dispute.

124. Turning to the drafting of the requirements in Schedule 3, two broad questions arise.

The first concerns the fact that some of the project-wide requirements are expressed to

apply only to the construction of the infrastructure, while the site-specific requirements

covering the same subject-matter are expressed to apply simply to the “authorised

development.” For instance, requirement PW6 applies the Code of Construction

Practice, Part A, to the “works to construct the Tunnel,” while requirement BLABF1

applies Part B of the Code to the “authorised development.” It could be said, therefore,

that street works carried out for construction purposes would attract the application of

both Parts of the Code but that the equivalent works carried out for maintenance

purposes would only attract Part B. There would not appear to be any obvious reason

for such a divergence. A similar issue arises in respect of the Design Principles:

requirement PW7 refers only to construction, while those site-specific requirements

which incorporate the Principles apply generally to the authorised development (e.g.

requirements BLABF4 and BLABF5).

125. The second, related question is that of why some of the requirements (including many

of the project-wide requirements) are expressed to apply to the “authorised project” and

others (including but not limited to most of the site-specific requirements) to the

“authorised development.” Again, there is no immediately apparent reasoning

underlying the choice of the respective terms. If the intention is to exclude ancillary

works from the scope of the site-specific requirements, this might undermine their

effectiveness. One example, already touched upon in relation to the proposed exclusion

of section 141 of the Highways Act 1980, relates to trees: there is an express power to

plant trees as an ancillary work, but the requirements to carry out work in accordance

with approved landscaping details are presently confined to authorised development.

Likewise, street works will not ordinarily constitute development, by reason of article

50 of the draft DCO. There may be other examples, although we have not carried out a

full analysis at this stage.

29

126. We accept that the requirements are still a work in progress, and that some of these

issues might appear differently in the light of other changes which might be offered by

the Applicant. We draw attention to them at this stage so that they might be borne in

mind when further consideration is given to the drafting.

127. On a separate issue we anticipate that in the light of our review of the Applicant’s

submitted documentation, we will be seeking additional site specific requirements, and

these will be discussed with the Applicant.

PART 6 RESPONSE TO APP08 (Historic environment)

Question 8.3

128. Paragraph 3.1.3a: Both the English Heritage Inspector of Ancient Monuments and the

local planning authority should be initially notified in respect of works within the City

of London.

Question 8.12

129. Paragraph 12.1.4: The content of this paragraph is agreed. However, the 1960’s river

wall may include structures of Victoria Embankment where the two abut and Listed

Building Consent would be required where modern construction is attached to listed

structures, for example, Blackfriars Bridge and Victoria Embankment.

Question 8.14

130. Paragraph 14.1.5: This section of the parapet wall needs to be recorded, numbered,

and stored as appropriate for its re-use.

131. Paragraph 14.1.6: A method statement would be required for these works.

PART 7 RESPONSE TO APP11 (Noise and disturbance)

132. With respect to the Code of Construction Practice (COCP) Part A we anticipate that

our local authority colleagues in the London Boroughs of Tower Hamlets and

Southwark, who are taking the lead on the response to that issue, to co-ordinate

responses from all affected local authorities. We have no problem with the COCP

although we would highlight the following issues.

133. It is suggested in COCP Part A that there will be a liaison protocol. However for the

COCP Part B for Blackfriars Foreshore there is a note to the effect that the contractor

would be expected to apply in advance and agree demolition and construction method

statements. It should be noted that these will expect liaison arrangements to also

comply with the City’s Code of Deconstruction and Construction Practice edition 7.

30

134. In COCP Part B, most matters will be dealt with through the same demolition and

construction method statements. On working hours, it is noted in COCP Part B that the

City Corporation normally applies quiet hours to these activities. The statement that

‘standard’ hours (from COCP Part A and Part B) will apply is not agreed. We would

expect to take a pragmatic approach and not apply these quiet hours unless it is

essential for the protection of existing businesses, but that is not yet agreed, as the

methodology can only be agreed with the contractor once appointed.

135. We agree with the amended Environmental Statement issued in September 2013. There

will need to be detailed discussions before there is agreement of the working hours and

methodologies employed in order to safeguard the City of London Boys’ School from

the impact of noise from operations in proximity to the School. Of significant concern

is the 2 months of piling (and cumulative impact of noise). The measures proposed in

the COCP are too general to confirm removal of the effects, and there will need to be

significant detail added in consultation with the School.

136. We accept the provision of 15 minute dBLAeq as representing a base level for ambient

noise. We would also like to see maximum noise levels recorded during these periods

so that these can be used to assess any works that are carried on outside of ‘standard

hours’. Given modern equipment we would expect this data to be readily available from

those undertaking the monitoring for the project.

PART 8 RESPONSE TO APP16 (Traffic, travel and transportation)

Question 16.1

137. The Applicant makes reference to a Transport Strategy that is to be delivered through

an agreed process secured through a requirement. However, we are yet to see the

suggested requirement, which is not presently included in the draft requirements in

Schedule 3 of the DCO.

PART 9 RESPONSE TO APP19 (Statement of common ground)

138. The initial Statement of Common Ground (SoCG) submitted by the Applicant has been

superseded as a result of continuing discussions and submissions. Our Written

Representations provide a more up to date note of the matters yet to be agreed or still

the subject of discussion. It is proposes that a revised SoCG is produced once we have

seen the Applicant’s response to our Written Representations, at which point the

matters outstanding between us should be clearer.

PART 10 RESPONSE TO APP25 (Draft s.106 agreements)

139. Discussions on a s.106 agreement are continuing and we are awaiting an updated draft

from the Applicant. We are reviewing their proposed protocol for closing or limiting

public access to the public realm, if necessary, to enable maintenance to be carried out.

31

140. We are still in the process of considering the Applicant’s analysis of, and proposed

solution, to the problem of securing the performance of section 106 obligations where

the Applicant is not the owner of the land in question. In particular we need to be

satisfied that the powers under article 34 are sufficient for this purpose. At this stage,

we would like to reflect on the fact that the article 34 powers are temporary, and insofar

as they relate to land within the Order limits, limited to those works that have been

specified in column (3) Schedule 14 of the DCO. These may not necessarily cover

s.106 obligations.

141. We would also like to examine how the section 106 obligations may be secured through

the DCO. In particular we have to take account of the fact that the Applicant proposes

to transfer the benefit of article 34 to an IP, but cannot transfer the benefit of the

compulsory acquisition powers. Therefore we would need to understand how the

obligation to enter into a confirmatory deed (as referred to in paragraph 6.3) would be

binding on a transferee of the article 34 powers.

PART 11 RESPONSE TO APP26.02.02 (Minor Changes to the Application for

Development Consent – Blackfriars Bridge Foreshore)

142. In relation to paragraph 2.3.8 which refers to the scoping response dated 25th

October

2013, we would ask whether the revised documents consider the Millennium Bridge,

which was outside the scope of the original report.

143. In relation to paragraph 2.3.11 we would point out that the sheet piling will need to

provide support for our structure and we would be pleased to know where this might be

addressed.

144. We have some further brief points to make.

144.1. We would require all the sediment from dredging to be removed by river

transport.

144.2. The disclaimers on the HR Wallingford reports are such that we are not able to

rely on their information. This weakens their value.

144.3. We note that the reports do not cover the proposed piers’ interaction with the

existing river wall structure and integrated pipe (services subway). However,

provided that these works do not damage the existing structures or impose

additional loading (without corresponding strengthening works), these should

be acceptable.