application eference number: wwo10001 written summaries … · written summaries of the cases ......

Written summaries of the cases put orally at the hearings held on 29 November 2013Doc Ref: APP42.2

Folder 155 23 December 2013

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Thames Tideway Tunnel Thames Water Utilities Limited

Application for Development ConsentApplication Reference Number: WWO10001

Written summary of compulsory acquisition hearings

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Compulsory acquisition hearings Day 2 – 29.11.13

List of contents

Page no.

1 Introduction ...................................................................................................... 1

2 Additional matters from 28 November hearing ............................................. 1

2.1 Legal submissions by Michael Humphries QC ........................................ 1

Article 34 ........................................................................................................... 1

Article 35 ........................................................................................................... 2

Mechanism for securing non-statutory mitigation policies.................................. 2

Article 9(4) ........................................................................................................ 3

Blight and Article 34 .......................................................................................... 4

Section 102 parties ........................................................................................... 4

3 Agenda item 6: Alternatives to compulsory acquisition.............................. 6


4 Agenda item 7: Is the proposed interference legitimate, necessary and proportionate .................................................................................................... 7


5 Agenda item 8: Mitigation policies ................................................................ 8


Noise insulation ................................................................................................ 8

6 Section 122 – property assessment ............................................................... 9

6.1 Submissions from Stephen Walker .......................................................... 9

Section 122 ....................................................................................................... 9

7 Responses to issues raised at the hearing.................................................. 11

7.1 Tunnel stratum to be acquired ............................................................... 11

Issue raised .....................................................................................................11

Response ........................................................................................................11

7.2 Northern Line extension ........................................................................ 12

Issue raised .....................................................................................................12

Response ........................................................................................................12

7.3 Permanent works on temporary use land and abandoned works .......... 12

Issue raised .....................................................................................................12

Response ........................................................................................................12

7.4 Update of Section 106 and mechanisms for binding the land ................ 13


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Compulsory acquisition hearings: Day 2 – 29.11.13


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1 Introduction 1.1.1 This document contains a written summary of the oral submissions made

by Thames Water Utilities Limited (‘Thames Water’) at the compulsory acquisition hearing held on 29 November 2013, as part of the examination of the application for development consent for the Thames Tideway Tunnel project. The Examining Authority (‘ExA’) in respect of the application set out the agenda for the compulsory acquisition hearings (‘Agenda’) by way of a letter, dated 18 November 2013, addressed to interested parties. This written summary of Thames Water’s submissions is broadly structured by reference to the items on that Agenda that were addressed at the hearing on 29 November 2013.

2 Additional matters from 28 November hearing

2.1 Legal submissions by Michael Humphries QC Article 34

2.1.1 There are 68 plots of which Thames Water is taking temporary possession where permanent rights will be taken. Of the 68, 65 relate to matters such as long-term rights for swinging a crane or maintaining access. There are three plots where Thames Water would want the permanent right to retain and maintain works placed in the land during temporary possession. These relate to Blackfriars Bridge Foreshore in the City of London and Chelsea Embankment in the Royal Borough of Kensington and Chelsea. These are both locations where works to secure the river wall are required and there is a need to maintain some ongoing right in that respect.

2.1.2 There may be plots where temporary possession powers are taken under Article 34 and ground strengthening works undertaken, where permanent rights do not need to be retained on the basis that Thames Water does not need any continuing control over that land. This would allow Thames Water to leave in the land, and not therefore remove, ground strengthening works that have been placed there to facilitate the construction of the authorised project. A number of the sites are on land next to the river wall.

2.1.3 An example of this is Carnwath Road Riverside. Thames Water will compulsorily acquire land or rights at Whiffin Wharf, but it is intended that other parts of the overall Carnwath Road Riverside site would be subject to temporary possession powers only and would be returned to the landowners after the construction period has ended. In relation to those parts that would be returned to the landowners, it may be necessary to undertake strengthening works to the river wall. When temporary use of the land is finished, the works to strengthen the river wall would not be removed. They would be left there and would become the property of the landowner. In the context of Article 34(4)(c), it was not intended that, in those circumstances, Thames Water would retain any right or interest in that piece of land.



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2.1.4 If Thames Water did anything that caused loss or damage to the land then that would be compensatable under Article 34(5) and, in terms of the Human Rights Act, the interference to property would not be disproportionate because any loss would be compensated. Thames Water is confident that this is a proportionate use of its powers under the development consent order (DCO) and does not unduly interfere with human rights.

2.1.5 In circumstances where Thames Water needs to undertake works that are, for example, necessary for the protection of the shaft, then Thames Water will either acquire the land outright or will take the necessary permanent rights.

Article 35 2.1.6 Article 35 currently allows for the temporary use of land for maintenance

outside of the order limits. Thames Water is considering amending Article 35 and removing of those parts of Article 35 that would allow Thames Water to maintain the project on land outside the order limits.

Mechanism for securing non-statutory mitigation policies 2.1.7 The ExA requested an explanation of how various matters would be

secured, particularly in the context: a. where the promoter, Thames Water, is not currently a party interested

in all of the order land for the purposes of Section 106 of the Town and Country Planning Act 1990; and also

b. where the infrastructure provider doesn’t yet exist. 2.1.8 This is not an unusual problem with development projects where the land

has to be compulsorily acquired, but because the DCO creates a statutory instrument, it does give some additional scope for the way the problem can be most effectively solved. Thames Water proposed the following solution as an appropriate way forward.

2.1.9 The first step would be a new article, or other provision, in the DCO that would ‘deem’ Thames Water, or any transferee under Article 9, to be interested in land for the purposes of Section 106 of the Town and Country Planning Act 1990. The expression ‘interested in land’ is the expression used in Section 106.

2.1.10 Secondly, there would need to be a requirement in the DCO, in relation to each local authority area, that, before some trigger point, the promoter will enter into a Section 106 undertaking or Section 106 undertakings in a form and on terms specified.

2.1.11 Thirdly, the terms of the Section 106 undertaking would provide that, before development or some other trigger point starts, Thames Water, or any transferee under Article 9, must implement and secure the operation of: a. the Noise Insulation and Temporary Rehousing Policy b. the Exceptional Hardship Scheme



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c. the Non-Statutory Mitigation Compensation Procedure d. the Non-Statutory Disturbance Compensation Procedure e. the Settlement Information Paper in each case, as amended.

2.1.12 The Order Land also includes that land over which Thames Water could only take temporary possession under Article 34 and thus any Section 106 undertaking could also bind Thames Water’s use of that land. Thames Water would, however, only be deeming itself to be interested in land for the purpose of Section 106 of the Town and Country Planning Act 1990 and no other interest in the Order Land would be bound by the terms of the Section 106 undertaking.

2.1.13 Thames Water is looking to secure all of the various noise mitigation policies by a Section 106 obligation. Part of the reason for doing it by Section 106 obligation is so that the authorities can enforce through familiar procedures. It is one of the less satisfactory features of the 2008 Act that the enforcement is by way of criminal sanction. This does not work well when trying to secure a noise mitigation policy. By contract, Section 106 gives the authorities a much better way of being able to step in and enforce an ongoing mitigation procedure.

2.1.14 The mechanism will be drafted in the Section 106 agreement such that the obligations will only bind that land which becomes Order Land within the DCO ‘as made’. If a particular plot were omitted from the Order Land for some reason, Thames Water would not want to be bound to do, or not do, something in relation to that plot.

2.1.15 Thames Water will seek to agree Section 106 obligations with local planning authorities where possible but, if necessary, will execute unilateral undertakings.

Article 9(4) 2.1.16 In relation to Article 9(4) the ExA asked Thames Water whether, in Article

9(4)(a) and (b), the term ‘Thames Water Utilities Limited’ should be replaced by ‘the undertaker’. The Article 9(4) is based on the model provision, but has been adapted for use in the Thames Tideway Tunnel Draft DCO. Model provision 5(3) does refer to ‘the undertaker’, although in the model provisions, ‘the undertaker’ is defined as the person who has the benefit of the order in accordance with Section 156 of the PA 2008. There is a potential problem with the operation of Section 156 of the Act because Section 156 says if an order granting development consent is made in respect of any land, the order has effect for the benefit of the land, and all persons for the time being interested in the land. Clearly, and particularly in the circumstances where the promoter may only take temporary possession of land, it would not be appropriate for other persons with an interest in the Order Land to have the benefit of the DCO powers. Thus Article 9(4) has referred to the exercise of any benefits or rights conferred in accordance with a transfer under articles 9(1) or 9(2)



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being subject to the same restrictions, liabilities and obligations as would apply if those benefits or rights were exercised by Thames Water.

Blight and Article 34 2.1.17 Thames Water has confirmed that, where any of the land subject to the

power of temporary possession is also land subject to compulsory acquisition, it is not the intention to exclude the blight provisions in the Town and Country Planning Act 1990. The blight provisions relating to DCOs fall within paragraph 24 of Schedule 13 to the 1990 Act, where compulsory acquisition of land is authorised by an order granting development consent or the land falls within the limits of deviation, within which powers of compulsory acquisition conferred by an order granting development consent are exercisable or an application for an order granting development consent seeks authority to compulsorily acquire land.

2.1.18 There are, however, limits on a landowner’s ability to force compulsory acquisition pursuant to a blight notice. In broad terms, blight notices are available to residential occupiers and smaller commercial undertakings. That reflects exactly the same approach as is adopted for all other types of compulsory acquisition where blight notices are available. There are obviously limits on who is eligible to apply. It must also be understood that an acquiring authority, or an intending acquiring authority, can serve a counter-notice on a number of grounds, including that it no longer intends to acquire the land or all of the land. In those circumstances, however, the landowner does have the certainty that the land is not about to be compulsorily acquired.

2.1.19 Article 34(9) says that where the undertaker takes possession of land under this Article, the undertaker shall not be required to acquire the land or any interest in the land. It is not intended by that provision to exclude the blight provisions in the Town and Country Planning Act where land is also subject to compulsory purchase. Article 34(9) will be amended to make this clear.

Section 102 parties 2.1.20 Section 44 of the PA 2008 identifies the various categories of persons with

an interest in land, including ‘category 1’ persons, being owners, lessees and tenants, ‘category 2’ persons, who are interested in the land, and ‘category 3’ persons, who might be entitled to make a relevant claim. In each case, the term ‘the land’ for the purpose of this part of the PA 2008 is defined in Section 41(2) as being “the land to which the proposed application relates or any part of that land”. All of the various persons that fall within the Section 44 categories were consulted under Section 42.

2.1.21 Section 56(2)(d) requires notice to be given of acceptance of the DCO to each of the persons within the categories in Section 57. Section 57, in turn, identifies persons in the various categories that were in Section 44.

2.1.22 By Section 59, the applicant must notify the Secretary of State of those persons who are ‘affected persons’, being those persons who the



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applicant, after diligent inquiry, knows to be ‘interested in the land’ or any part thereof.

2.1.23 Section 102 sets out the definition of ‘interested party’ for the purposes of Chapter 4 of the 2008 Act, and Section 102(1)(aa) includes persons who have been notified of acceptance under Section 56(2)(d). Thus all of the persons who were notified in the four categories by virtue of Section 56(2)(d) are ‘interested persons’ under Section 102, whether or not they have made a relevant representation. Section 102(1)(ab) allows the Examining Authority to include other persons to become ‘interested persons’ where they have applied to become interested persons under Section 102(A) on the grounds that they are within one of the categories in Section 102(B). A person may apply to become an ‘interested person’ under Section 102(A), where they have stated that they are in one of the four categories that are set out in Section 102(B), and they have not been notified under Section 56(2)(d). This may arise in circumstances where land has changed hands since Thames Water compiled the Book of Reference and gave the Section 56(2)(d) notification.

2.1.24 Thames Water’s understanding is that there is no further requirement for it to notify such persons, although it confirmed that it has been ‘reactively’ updating the lists of properties that have changed hands.

2.1.25 The persons who have an interest in land, including those who have a relevant claim, will have received project letters and notices, and those who buy properties that have been subject to such letters and notices should have been informed as such by their vendor. It is one of the standard questions in conveyancing practice and, therefore, purchasers should be aware that they are buying a property subject to which such letters and notices have been served.

2.1.26 In March 2013, the Secretary of State served a safeguarding order in relation to the whole of the project. For those purchasers who are within the safeguarding limits, therefore, a pre-application enquiry to the local authorities will have revealed the existence of the scheme.

2.1.27 These are the principal means by which persons acquiring a property should be aware of the project and, if they choose, decide to become interested parties.

2.1.28 Once an order has been confirmed, Section 134 requires the promoter to notify parties who would have been notified under Section 12 of the Acquisition of Land Act 1981. The persons notified under Section 12 are identified in Section 12(2). They are persons who are owners, lessees, tenants or occupiers of the land, or persons within subsection (2)(a), and those persons are persons to whom the acquiring authority would, if proceeding under Section 5 of the Compulsory Purchase Act 1965, be required to give a notice to treat.



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3 Agenda item 6: Alternatives to compulsory acquisition

3.1 Legal submissions by Michael Humphries QC 3.1.1 Putting the issues of alternatives into the context of the compulsory

acquisition powers within the PA 2008, it is necessary to look at Section 122(2) and Section 122(3) of the PA 2008. These provisions set out the conditions that the Secretary of State has to be satisfied about before he authorises compulsory acquisition.

3.1.2 Section 122(2) has three parts but only two of them are relevant. The first is that the land is required for the development to which the development consent relates, and the second is that the land is required to facilitate or is incidental to that development. In both cases, the primary test is that the land is ‘required’. This provision creates no positive duty to consider alternatives, but there is a further provision in Section 122(3). This requires that there is a compelling case in the public interest for the land to be acquired compulsorily. An objector may say that it is not necessary to compulsorily acquire land in relation to a particular site because there is an alternative site where it would not be necessary to compulsorily acquire land or, in any event, compulsorily acquire the same or as much land.

3.1.3 In relation to the question of an alternative site, it has been explained in a number of documents, and in previous sessions of the examination, that an exercise was undertaken to consider alternative sites and they were considered by reference to the five overarching disciplines: Planning, environment, engineering, community and property. In that balancing exercise of looking at sites, no one discipline automatically ‘trumps’ any other and, in particular, property is not one that automatically trumps any others. The application documentation, as supplemented by written and oral answers given during the examination, explains how property was taken into account as part of that overall balancing exercise. The Site Suitability Report guidance notes for property are appended to question 14.1 (Appendix 14.01.10). The response to question 4.30, at paragraph 30.1.3, sets out the relevant documents – including the Order Land Schedule (Doc ref: 9.06), the Statement of Reasons (Doc ref: 4.1) and the two engineering design statements – which demonstrate that the land is required for the project in the context of Section 122(2).

3.1.4 The response to question 4.31(g) sets out how alternatives were considered in relation to the worksites by reference to alternative sites themselves, the layouts of sites and the detailed LLAUs of sites.

3.1.5 The alignment of the tunnel between those worksites is not covered in the answer to question 4.31(g). That is an engineering matter that Mr Arnold explained and justified during the compulsory acquisition hearings for each length of tunnel. The overall position in relation to the Section 122 test is that, once the process of selecting sites and rejecting the alternatives has been undertaken, the land that is identified is ‘required’, not only as to the site itself but also its layout and its detailed LLAU. Furthermore, because



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the need for the project is set out in the NPS, there is then a compelling case for the compulsory acquisition of the land that has been identified as required.

3.1.6 In relation to whether there is a compelling case in the public interest to take a particular piece of land, it may be material to understanding whether the public purpose could be adequately and properly undertaken on some other piece of land. There is, however, no direct legal or policy requirement to consider alternatives and, if there was, it would clearly be set out in the DCLG Guidance on compulsory acquisition or in the relevant NPS.

3.1.7 What paragraph 8 of the DCLG Guidance on compulsory acquisition does say, however, is that an applicant should be able to demonstrate that all reasonable alternatives to compulsory acquisition have been ‘explored’. Thames Water has explained how property issues were taken into account as part of the scheme selection process and how alternatives to compulsory acquisition were explored, where available.

3.1.8 Falconbrook Pumping Station is an example where Thames Water moved from a site that could have required compulsory acquisition to one which was a Thames Water site. The same could be said of Acton Storm Tanks and several other sites where Thames Water tried to favour sites that are already in its ownership. This demonstrates compliance with the advice in the DCLG Guidance on compulsory acquisition.

3.1.9 Furthermore, at a number of the key sites, Thames Water has already acquired the land by agreement. For example, at Chambers Wharf, the vast majority of the site is owned by Thames Water. The additional land that would be required is, for the most part, in the foreshore. Similarly, at Carnwath Road Riverside, Thames Water has either acquired the freehold (Whiffin Wharf) or the long leasehold (Hurlingham Wharf) and there are other examples of where Thames Water has acquired land so that, by the time the application was submitted, it already owned the land and compulsory acquisition of third-party interests in the land was not required. Those plots are still included in the compulsory purchase order, however, to make sure they can be cleansed of potential unknown adverse rights.

4 Agenda item 7: Is the proposed interference legitimate, necessary and proportionate

4.1 Legal submissions by Michael Humphries QC 4.1.1 Thames Water was invited to set out why it considers the proposed

interference with land rights and interests is justified by reference to relevant application documents, and whether there are any lesser steps that could meet the identified need (if this has not already been dealt with under alternatives at item 6 of the agenda).

4.1.2 Thames Water’s response to first written question 4.30 lists the principal application documents that are relied on to justify the Requirement to take the land included in the Draft DCO. Thames Water confirmed that it has



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only sought to compulsorily acquire the freehold interest in land where it is considered to be necessary, and required, in order to secure the long-term aims of the project. Where acquisition of the land is not necessary, rights have been identified and, where permanent rights are not necessary, then Thames Water has sought only to take temporary possession of land. The Order Land Schedule, which lists each of the surface and the subsurface plots, describes in each individual case what interest, right or temporary possession power is required and what it is required for. Thames Water has sought to demonstrate in each and every case that the particular land, rights or powers that it is seeking is necessary and proportionate.

5 Agenda item 8: Mitigation policies

5.1 Legal submissions by Michael Humphries QC 5.1.1 This agenda item invited Thames Water to identify the mitigation policies

(on noise, disturbance, rehousing and settlement) in the application documents and justify its proposed approach in relation to the implementation, burden of proof and adequacy of these policies.

5.1.2 Thames Water notes that the mitigation strategies identified are directed towards the construction of the project, as opposed to its operation. Indeed, once the project is constructed, it will be, for the most part, below ground and have very few effects at the surface.

5.1.3 Construction impacts are typically dealt with, particularly in relation to construction noise, through sections 60 and 61 of the Control of Pollution Act 1974. This approach has been used on most large construction sites in London and gives local authorities a very high degree of control over construction methods, including the construction mitigation, with the aim of adopting best practical means. The host local authorities for a large number of construction projects in London, including Crossrail, are very familiar with that particular approach.

5.1.4 In the Environmental Statement, the assessment assesses a reasonable worst case in terms of noise. It is anticipated that the contractors and the local authorities, through the Control of Pollution Act process, will come up with mitigation packages that will improve upon the noise climate that has been set out in the Environmental Statement. In addition, however, Thames Water has put a number of other mitigation strategies in place. The Noise Insulation and Temporary Rehousing Policy is one where the trigger levels have been set to be consistent with BS5228 and the Government’s Noise Policy Statement for England (NPSE), together with WHO noise objectives.

Noise insulation 5.1.5 As part of its approach to noise mitigation, Thames Water is also looking

to introduce noise ‘trigger action plans’. Those plans will identify, in relation to particular properties or classes of properties, the type of noise mitigation that will be offered. The trigger action plans will identify, where



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a potential Section 61 noise assessment indicates exceedance of a noise threshold, the form of noise mitigation that will be offered.

5.1.6 One of the issues with mitigation of this sort, particularly where it relates to residential properties, is that Thames Water cannot force a landowner to take the mitigation and there will need to be some agreement by the landowner for the mitigation to take place.

5.1.7 Thames Water is intending to set up an ‘independent compensation commission’ that will administer these particular policies or procedures, insofar as they require some discretion by a decision maker as to whether someone does or does not qualify for any mitigation measure. That is likely to apply in relation to the non-statutory mitigation compensation code procedure, the non-statutory disturbance compensation code procedure and also the exceptional hardship procedure. By contrast, settlement deeds are not something that requires particular discretion. Someone is entitled to apply for a settlement deed and the purpose of the deed is not that it increases or decreases any right they otherwise have. It is simply a deed that they can, for example, give to a purchaser to demonstrate the protection that is available.

5.1.8 These policies had been appendices to the Code of Construction Practice and that was intended to be subject to a Requirement. These policies are, however, now proposed to be subject to a Section 106 obligation.

5.1.9 The Noise Insulation and Temporary Rehousing Policy and Settlement Information Paper were appended to the Statement of Reasons. These policies will also, however, become subject to a Section 106 obligation and Thames Water will make sure that there are appropriate obligations terms to ensure that the ‘independent compensation commission’ and the ‘trigger action plans’ are set up.

6 Section 122 – property assessment

6.1 Submissions from Stephen Walker Section 122

6.1.1 The property team were involved in the site selection process from about April 2009. Being part of the process from a very early stage on large linear infrastructure projects is unusual, in my experience. Quite often, engineering and planning has been advanced well before a property team is consulted on a site assembly strategy including the suitability, availability and risks associated with land and property. Being involved at the outset was extremely valuable to the project and the site selection process.

6.1.2 Embedded in everything that has been done in site selection is the assessment work carried out by the property team.

6.1.3 Those in the property team involved in the site selection are a group of compulsory purchase specialists. Their input to the site selection, workshops and the consideration of sites has all had regard for the



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compulsory acquisition process and the potential need for it to complete the land assembly for the project.

6.1.4 The site selection process went through various stages. At the stage we call Table 2.3, the first criterion was entitled 'Ownership', hence when we were looking at sites, Thames Water ownership was obviously going to be flagged by the property team as a strong candidate and, therefore, a priority in terms of the property assessment.

6.1.5 The property team assessments were not weighted. 6.1.6 The locations where Thames Water ownership already existed were:

a. Acton Storm Tanks b. Hammersmith Pumping Station c. Heathwall Pumping Station d. Falconbrook Pumping Station e. Earl Pumping Station f. Greenwich Pumping Station g. Cremorne Wharf Depot h. Abbey Mills Pumping Station.

6.1.7 The property team was engaged throughout all of the workshops that considered drive strategy.

6.1.8 We looked at ownership as being one of the criteria and then occupation of the site. If a tenant was on the site, we reflected that on each of the candidate sites. An exercise was carried out on a desktop basis to both value the site, assuming a compulsory acquisition, and also to pick up the potential disturbance compensation that might arise. That then fed into the process. We looked at whether the land was in a special category, whether it was owned by the Crown Estate, and had to make a judgement as to, therefore, the availability and the possibility that it might take longer to acquire if it fell into one of the special land categories.

6.1.9 We were also asked to consider the suitability of the site in its relationship to the river, on the basis that we anticipated using the river to take materials from each of the sites. Where the site was on the riverfront, it might have been straightforward; where it was further back, we had to consider the issues, perhaps complexities, of getting material from the site to the river. So all of that fed into the exercise that led to the decisions that were made.

6.1.10 The team also looked at the property immediately surrounding the site locations to consider whether we were likely to be met with statutory compensation claims where no land is taken, typically under Section 10 of the Compulsory Purchase Act 1965, and potentially Part 1 of the Land Compensation Act 1973.

6.1.11 As the process developed, we were already contemplating a scheme of non-statutory compensation programmes, so we were also looking at the exposure to compensation on a site-by-site basis against the background



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of an exceptional hardship procedure, and non-statutory mitigation and non-statutory disturbance compensation policies.

6.1.12 When looking at the value of land under compulsory purchase, we are required to consider the higher of existing use value or value for redevelopment. We didn't specifically look at obtaining certificates of appropriate alternative development, but we did have planning reports prepared that gave us an indication of existing policy and emerging policy, in terms of suitability of all of the sites for other uses. That information was an important consideration because it was likely to be some time before there was any ability for Thames Water to secure those sites from being developed for other purposes. Anything coming forward that might potentially frustrate the ability to use the site, or for it to cost more as a consequence, needed to be understood during the site selection decision making.

6.1.13 We use a present day value as a baseline that can then be taken forward. We regularly revalue as we go through the process, but we don’t predict future value. That's not to say, in terms of hope value, if you think there is going to be a redevelopment opportunity in five years’ time, you can't value that today, but it has to be today's value that you're contemplating. On the same basis, when other heads of claim are assessed and included in the valuation, such as injurious affection and disturbance, the overall potential costs will be captured.

6.1.14 The challenge of cost was taken into account. We did not reject a site because of cost alone, but we did determine whether one would be suitable or less suitable, depending on the overall cost assessment. So we were making a comparison with other sites at that time against a fixed set of criteria on value to establish suitability.

7 Responses to issues raised at the hearing

7.1 Tunnel stratum to be acquired Issue raised

7.1.1 Raised by the Port of London Authority – why does the stratum of subsoil to be acquired for the tunnel need to be square in profile, rather than round?

Response 7.1.2 Identification of a subterranean core for deep tunnels has been ‘squared

off’ because, in practical terms, it is easier to chart and show on plan. Enquiries of other projects have confirmed that CTRL and Crossrail have adopted the same approach and that HS2 and the Northern Line Extension have proposals to do the same. We have also been advised that HMLR prefers to register such interests as a measured ‘square’ of land, although this does not preclude the ability to register something of a different shape.



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7.1.3 It is also relevant to explain that, on previous projects, the vesting of subsoil has occurred prior to having access to the land for construction. As a consequence, the defined square core for CTRL and Crossrail is much wider than the actual pipe diameter plus protection zone, and has ordinarily resulted in the vesting of subsoil to the extent of the limits of deviation permitted in the corresponding Acts of Parliament. The proposal set out by Thames Water in the Draft DCO seeks to minimise the subsoil core by securing temporary use powers to construct the tunnel and then using the as-built plans to identify accurately the area to vest.

7.1.4 At the depth of the Thames Tideway Tunnel and, in accordance with accepted valuation convention (price per metre run), it is difficult to accept the value argument put forward by the PLA and therefore to justify the attention to this level of detail surrounding the subsoil core of land to be acquired. However, we continue to negotiate the property agreement and this issue is being picked up in those discussions. We are mindful of the indication given by the panel that this really is a matter that ought to be for those negotiations between the parties.

7.2 Northern Line extension Issue raised

7.2.1 What approach has the Northern Line extension taken to the shape of the tunnel?

Response 7.2.2 Thames Water can confirm that the Northern Line extension will be

acquiring a square profile of land for tunnel subsoil. This is the usual practice for all tunnels.

7.3 Permanent works on temporary use land and abandoned works Issue raised

7.3.1 Issues raised by the Port of London Authority expressed concern regarding temporary works no longer required, abandonment of structures, future maintenance costs and the principle of land reverting to the PLA.

Response 7.3.2 An explanation regarding the extent of Article 34 and proposals to amend

this to clarify the position on permanent works in temporary use land is set out in Thames Water’s response to paragraph 12.1 in the 28 November submission. In response to the general question posed as to whether landowners whose land is restored to them would be provided with details of any works left behind, where that is permitted by Article 34 or agreed, Thames Water would offer such details to owners.



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7.3.3 The Port of London Authority’s special position as the harbour authority for London is recognised in the proposed protective provisions within Schedule 16 of the Draft DCO. It has been agreed with the PLA, the Environment Agency and the Marine Management Organisation that when the works packages for works in and adjacent to the river are submitted for their approval, this will also include the identification of temporary works to be removed and the methodology for this. So far as the authorised development is concerned, therefore, there should be no doubt over the identification of permanent works, which will be retained, and temporary works which (subject to agreement to the contrary) will not. The Draft DCO issued to boroughs and stakeholders on 9 December also sets out, in full, protective provisions which will enable the PLA to require the removal of obstructions in the river which become exposed and, if works are abandoned or fall into decay, to require the removal or repair of those works.

7.3.4 In terms of the requirement by the PLA that land which houses abandoned works be returned to it, as a general principle, the automatic reversion of land to its original owner is problematical, which is why the Crichel Down rules were developed to deal with the reasonable proposition that land acquired for a statutory purpose should be offered back to the original owner but only under specified circumstances, and at the then open market value. In discussions with the PLA, we will explore the circumstances under which Thames Water could, or may be obliged to, offer back land to the PLA where there is no operational need to retain it.

7.4 Update of Section 106 and mechanisms for binding the land

7.4.1 These matters are set out in legal submissions for 29 November. The Draft DCO which was circulated to boroughs and other stakeholders on 9 December includes provision for an amendment to the Town and Country Planning Act (Schedule 19, paragraph 10), which provides as follows: “For the purposes only of Section 106 (1) of [the Town and Country Planning Act 1990] the undertaker shall be deemed to be a person interested in the Order Land or any part of it and for the avoidance of doubt Section 106 (3) (a) shall include any transferee under Article 9 of this Order.”

7.4.2 Also in the 9 December Draft DCO, a new Requirement is proposed, which states: “No authorised development shall be commenced on this site unless and until the undertaker has entered into the [Site] Section 106 Agreement/Undertaking [to be appended/referred to]”

7.4.3 Those provisions will form part of the consultation with boroughs and other stakeholders on changes to the DCO generally but will also form an important part of discussions on the proposed Section 106 Undertaking to secure the various compensation policies and procedures. It is likely that a separate project-wide negative requirement will apply to that



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undertaking. Thames Water will report back to the ExA on the position agreed with the boroughs on the efficacy of statutory and other powers to secure these planning obligations.

Copyright notice Copyright © Thames Water Utilities Limited December 2013. All rights reserved. Any plans, drawings, designs and materials (materials) submitted by Thames Water Utilities Limited (Thames Water) as part of this application for Development Consent to the Planning Inspectorate are protected by copyright. You may only use this material (including making copies of it) in order to (a) inspect those plans, drawings, designs and materials at a more convenient time or place; or (b) to facilitate the exercise of a right to participate in the pre-examination or examination stages of the application which is available under the Planning Act 2008 and related regulations. Use for any other purpose is prohibited and further copies must not be made without the prior written consent of Thames Water. Thames Water Utilities LimitedClearwater Court, Vastern Road, Reading RG1 8DB The Thames Water logo and Thames Tideway Tunnel logo are © Thames Water Utilities Limited. All rights reserved.

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