Path master

As the Crossrail project lumbers on, Robbie Owen highlights the problems likely to be faced by individuals and businesses in the path of this monster development

On 22 February 2005, the Secretary of State for Transport introduced the long-awaited Crossrail Bill into the House of Commons. Crossrail is the proposed new East to West London rail link, which would run from Maidenhead to the Isle of Dogs and Stratford, with a spur off to Heathrow Airport via Central London, before running northeast to Shenfield in Essex and southeast to Abbey Wood in Kent.

The bill was accompanied by a mass of supporting documentation, including an environmental statement (ES) comprising nine volumes, specialist technical reports and detailed plans and sections of the proposed route.

The ES proposes a minimum level of environmental mitigation that the project will be committed to providing in the course of construction and operation. In addition, policies to deal with such issues as noise and vibration, the acquisition and disposal of land, ground settlement and the advance purchase of property in cases of hardship have been published by the Department for Transport (DoT). These issues will be key areas of concern to anyone who owns or occupies land or property along the line of the route, as well as to local authorities and residents’ associations.

The Government has also issued ‘safeguarding directions’ for the route and made a further safeguarding announcement in respect to the line of a future extension from Abbey Wood to Ebbsfleet; it will also be consulting on further safeguarding between Maidenhead and Reading. Safeguarding protects the route from adverse development proposals.

The impact of the project
The Crossrail Bill contains wide powers, including those for the compulsory purchase and temporary use of land along the route, in relation to private interests and matters of public policy. The Government has sought to draft these as widely as possible in order to retain sufficient flexibility once detailed design work has been completed and the method of procurement and risk allocation has been chosen. This is not unusual for projects of this nature – the Channel Tunnel Rail Link Bill was the same.

The ES and the published policies seek to provide assurances to those likely to be affected by the project, particularly in relation to settlement, land acquisition and disposal, noise and vibration and over-station development. These assurances are clearly designed to reduce the number of petitions (ie objections) made against the bill – but those affected by the proposed works are unlikely to find the assurances given so far to be sufficient:

  • It is far from clear how Crossrail will be paid for. Nevertheless, the Government has proceeded to publish the bill and will shortly be seeking its approval in principle by Parliament. This is completely contrary to published DoT policies, which make it clear that promoters of rail projects must be able to show that there is a reasonable prospect of funding for the project being available, particularly in order to justify what can often be extensive compulsory purchase powers. Consequently, some property owners are likely to consider that the bill is premature and represents an unacceptable and unjustifiable blight on their assets and interests.
  • It appears that the Government has adopted quite a ‘broad brush’ approach in capturing the land and property to be compulsorily acquired or used temporarily. In response, some property owners and occupiers are likely to argue that the Government cannot make out the necessary case for the relevant compulsory purchase powers – that there is a “compelling case in the public interest” for them (Office of the Deputy Prime Minister circular ‘Compulsory Purchase and the Crichel Down Rules’, June 2004).
  • Ground settlement will occur under some properties over the proposed tunnels, despite the Government’s policy commitment to avoiding any settlement and improving the ability of individual buildings to withstand ground movement.
  • There may be some financial assistance for residential occupiers for the installation of additional acoustic protection, or temporary rehousing for residential occupiers in acute circumstances. However, the amount of any such assistance is uncertain and no scheme of mitigation has yet been made available to businesses.
  • Over-station development will be an important element of Crossrail’s funding cocktail. Blocks of properties at each end of the Central London Crossrail stations (eg Bond Street and Tottenham Court Road) will be compulsorily acquired, but a proprietary interest above the built station entrances will normally only be offered back to the previous owner at a price valued with reference to the ‘scheme world’ (whereas the dispossessed property owner would previously have received compensation with reference to values arrived at in the ‘no-scheme world’).
  • For compulsory purchase compensation, the bill applies ‘the compensation code’ – a complex myriad of statutory provisions, case law and non-statutory guidance. In some cases, it will be argued that this will either fail to compensate affected parties or will provide inadequate compensation.
  • Beyond pure property concerns there will be many public and private bodies whose statutory functions will be affected by the bill – these will include local authorities, utility and telecoms companies, the Port of London Authority, the Environment Agency, Transport for London, Network Rail and rail passenger and freight operating companies.

The parliamentary process

The Crossrail Bill is what is known as a ‘hybrid bill’ – that is, a public bill, normally a government bill, that is treated like a private bill for part of its passage through Parliament because it contains provisions that have an impact on the interests of particular individuals (such as compulsory purchase), as well as containing provisions of a general public nature. As a result, those who are “specially and directly affected” by the bill may “petition” against it in either or both Houses of Parliament.

The second reading of the bill in the House of Commons is now unlikely to take place until after the widely expected 5 May general election. The bill could well take another two years from then to pass through Parliament and there will be a further opportunity to petition against it in the House of Lords.

The Crossrail Bill will have a significant impact on a wide variety of interests. Its provisions and effects in relation to issues such as compulsory purchase and compensation, interfacing with the rail network and the potential physical impact on properties along the route, engage complex and technical issues. The construction of the project could last for up to 10 years and could have a significant long-term impact on businesses and property interests, although the precise extent of the impact is far from clear.

However, one thing is certain: Crossrail will have a lasting impact on the face of London, and therefore anyone concerned about how their interests might be affected should act now.

Robbie Owen is apartner at Birchm Dyson Bell and head of the firm’s parliamentary, public law and planning team.