Proceedings in repect of statutory nuisance: defence

Question proposed, That the clause stand part of the Bill.

This debate gives us the chance to have another little chat about noise. The clause continues in much the same vein as clause 20, in the sense that it removes any accountability on behalf of the Secretary of State or the nominated undertaker for excess noise pollution caused by the Crossrail project. We have just heard the Minister justify the rationale for the Secretary of State determining the issue, but towards the end of those remarks, the Minister said that on clauses 20 and 21, the Secretary of State may appoint an independent inspector. If that is the precedent of the 1996 Act, the Committee would be much more reassured if the Minister’s comment was in the Bill and the issue determined by an independent inspector whom the Secretary of State nominated. That would release the Secretary of State from the invidious position of being, potentially, the defendant and the judge, which would be quite important.

The Minister’s argument about separate numbers of magistrates courts all potentially doing different things is slightly odd, because the magistrates courts would test whether a noise level was above or below a level as specified by an Act, and although they might apply sanctions differently, their findings would be consistent. The Minister’s argument was therefore difficult to accept.

I hope that the Minister will have the chance to reflect on the possibility of an independent inspector being involved. According to the Environment Protection Act 1990, if a magistrates court decides that a nuisance is caused by noise or that such a nuisance is likely to recur, it may proceed to require the defendant to take appropriate action to abate that noise, and impose a fine. The clause does not quite make a mockery of, but it takes away from, that important legislation by making the perpetrator to the noise, if they are associated with Crossrail, not responsible under the 1990 Act. Clause 21 states that

“no order shall be made, and no fine shall be imposed...if the defendant shows that” the noise was caused by works associated with Crossrail.

We have said all along in Committee today that Crossrail is a project of huge strategic importance that will require exceptional powers, but to the family living next door to the new Woolwich station or near any line  being built, it will not matter whether the noise nuisance from the baby being disturbed at 3 o’clock in the morning is caused by the development of Crossrail or by some other construction project.

I have listened carefully and I am glad that the Select Committee felt that there were some reassurances, but I find it striking that that Committee expended so much effort in the past two years listening to the concerns of people affected by Crossrail and tried to reassure them, because the two clauses we are considering will not impose a penalty if such concerns about noise are brought forward. Will the Minister again consider carefully the fact that in clauses 20 and 21, the Secretary of State is put in the potentially invidious position of being both defendant and judge? That is not good legislation.

The purpose of clause 21, precedented in the 1996 Act, is to provide a defence against proceedings brought by an individual alleging a noise nuisance under section 82 of the 1990 Act. The defence arises if the nuisance arises in connection with authorised activity, and where the relevant works are carried out in accordance with either a notice or a consent given under the Control of Pollution Act 1974.

Such a notice or consent already forms a defence in any proceedings for failure to comply with a noise abatement notice issued by a local authority under section 80(1)(a) of the 1990 Act. The provision means that the nominated undertaker will be able to carry out his works—importantly, works approved by the local authority—with greater certainty. However, I recognise Opposition Members’ concerns. One requirement of the Crossrail construction code is that the nominated undertaker must obtain consent under section 61 of the 1974 Act with respect to the construction works that it is to carry out under the Bill. In view of that commitment, it is reasonable that the nominated undertaker should be able to carry out the works, as approved by the local authority, with the certainty that the clause will give—namely, that it will not then be subject to separate proceedings under section 82 of the 1990 Act.

Such separate proceedings could inhibit or delay necessary construction works for Crossrail that have previously been approved by the local authority as representing best practicable means for the minimisation of noise. There are other safeguards. The first is that, because of the Crossrail construction code commitments, concerned individuals have the assurance that their local authority will have scrutinised in detail the proposed construction methods in each case to check that best practice is being followed.

Secondly, individuals potentially affected by noise nuisance arising from the Crossrail works have already had the opportunity to petition the House. Indeed, a number have done so. Several of the undertakings and assurances given during the Select Committee process relate to the promoter’s strategy for controlling and mitigating noise impacts. Subject to the Bill completing its passage through the House, individuals will also have the opportunity to petition again in the other place.

In response to the point made by the hon. Member for Wimbledon, the Secretary of State for Transport remains accountable to Parliament for the undertakings contained in the construction code. That is at it should be on mitigation and on noise.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.