Gladiatorial games, part 3

(… continued from Gladiatorial games, part 2, posted on 26 Nov 2015).

Early on in the evidence that he gave to the HS2 Select Committee early in November (see footnote 1) Rick Methold, expert witness on acoustics for Chiltern District Council (CDC), identified four areas of difference between the Local Authority Noise Consortium (LANC) and the Promoter where progress had been made in negotiations between the parties, but where “some further discussion or movement by the parties” is necessary to achieve resolution (see footnote 2).

One of these areas of difference concerns the operation of procedures provided for by Schedule 16 of the Phase 1 hybrid Bill (see footnote 3). These procedures require the “relevant planning authority” – being the unitary authority or, in a non-unitary area, the district council in whose area building works for HS2 are required to be carried out – to approve the plans and specifications for those works, and grants them limited powers to refuse such approval. Grounds on which refusal is permitted include that “the design or external appearance of the building works ought to be modified to preserve the local environment or local amenity” – presumably that would encompass consideration of the noise environment.

Mr Methold identified two stages in the construction at which the hybrid Bill required local authority approval (see footnote 4): consent to the plans and specifications prior to the works being carried out (covered by paragraphs 2 and 3 of Schedule 16), and approval of the works prior to them being brought into use (the subject of Schedule 16, paragraph 9). The LANC has identified a list of the information relating to operational airborne noise and groundborne noise and vibration that it requires be provided at both of these stages, set out in section 2.3 of the “written position statement”. All of the items on the LANC list appear reasonable and entirely sensible to me and one of them, a demonstration that the nominated undertaker has “taken all reasonable steps to mitigate and minimise adverse effects above LOAEL [lowest observed adverse effect level] through the control of airborne noise” seems particularly crucial.

Mr Methold told the Committee that whereas HS2 Ltd had indicated a willingness to agree to providing the information on the LANC’s list at the bringing into use stage of the project, they were “not necessarily” so agreeable to committing to do so at the at the plans and specifications stage; he speculated that the parties were “probably going to be discussing that [matter] more” (see footnote 5).

Tim Mould QC, the Promoter’s Lead Counsel, explained that the Promoter’s was not “trying to withhold information”, but was taking the position that the right time to release the information sought by the local authorities was when the nominated undertaker was “looking for authority to bring the scheduled works into effect”. He explained that his client thought “that it’s sensible to devote resources on both sides towards sharing the full suite of information at that point, rather than trying to do it at an earlier stage where the focus is much more in things like visual effect and so forth” (see footnote 6).

I fundamentally disagree with the Promoter’s position on this. The appropriate time to consider whether the noise mitigation proposals are appropriate is when the design may still be modified if necessary, not once HS2 has been built. This is so blindingly obvious that I can only attribute the Promoter’s reluctance to see sense to the hint in Mr Mould’s words that this is, at its heart, an attempt to limit the need to “devote resources”.

The remaining three areas of difference concern the arrangements to be put in place for the monitoring of noise performance once trains are running, and the measures that will apply to ensure that the actual noise impacts of HS2 as built are not worse at any location than has been predicted in the Environmental Statement (ES). The discussions on these matters appear to revolve principally around the wording, and the meaning of individual words and phrases, in Information Paper F4 Operational noise and vibration monitoring framework. Mr Methold told the Committee that IPF4 was a document that the LANC had “been developing with High Speed 2” and that it was “very nearly complete” with the exception of “two or three small items that we need to agree” (see footnote 7).

It was clear from a subsequent discussion (see footnote 8) that the LANC regard the effectiveness of the monitoring and rectification procedures currently on offer as undermined by the latitude that is provided to the nominated undertaker and is seeking to tighten up the wording. However, Mr Mould gave some reassurance that agreement could be reached on this matter; he told the Committee that there was “an underlying consensus that a monitoring framework is necessary and that it should be seeking to address those situations where the railway is not performing as it’s expected and in accordance with its own design objectives” (see footnote 9). He also described the monitoring procedures as a “lifetime commitment” that would be “designed to enable the performance of the railway to be measured in order, principally, to test whether it is meeting the design objectives that the Secretary of State has committed to …” (see footnote 10).

CDC’s counsel, Gwion Lewis, noted to the Committee that “the issue of noise is returning to the Committee” because, as I mentioned in part 2, Camden London Borough Council will be giving evidence on construction noise on 7th December. He suggested that he would provide an update on the LANC/HS2 Ltd negotiations at that time and that his clients “very much hope … [that they] will be able to report a more satisfactory position that (sic) exists today” (see footnote 11).

So I think that we should leave them to their quibbling about words and take a look at what has been agreed when they have finished. However, this does not mean that I regard this matter as inconsequential; it is absolutely vital that those inflicting HS2 noise upon us are effectively constrained to ensure that the predictions of noise impacts that have been laid before Parliament in the ES are truly meaningful, and will not be exceeded when the railway becomes operational. Whatever words are agreed, we need them to be watertight.

Possibly, we may gain some reassurance from Mr Mould (see footnote 12):

“It is not the intention of the promoter that the living conditions as regards noise, of any person living along the route of this railway should worsen significantly from that which is predicted in the Environmental Statement. If it is necessary to add words to an information paper or to clarify any part of published material in order to make that clear, then I am happy to say that we will discuss how we can achieve that with these petitioners.”

But then, of course, there is that qualifying adverb “significantly” that rings alarm bells – some might say that now I’m quibbling about wording, but it’s qualifications such as this single word that provide the Promoter with a get-out-of-jail card. The LANC must resist any attempt by the Promoter to similarly qualify any written clarification.

(To be continued …)

Footnotes:

  1. The evidence presented on behalf of CDC occupied the whole of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015 (video) and the Promoter’s response was given in a shorter than usual afternoon session (video).
  2. The evaluation quoted is that of CDC’s counsel, Gwion Lewis, as recorded in paragraph 18 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  3. On page 325 onwards of Volume 2 of the Phase 1 hybrid Bill text.
  4. See paragraph 19 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  5. See paragraph 179 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  6. See paragraph 255 of the transcript of the afternoon session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  7. See paragraph 20 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  8. See from paragraph 181 onwards in the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  9. See paragraph 40 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  10. See paragraph 47 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  11. See paragraph 267 of the transcript of the afternoon session of the HS2 Select Committee that was held on Wednesday 4thNovember 2015.
  12. See paragraph 195 of the transcript of the morning session of the HS2 Select Committee that was held on Wednesday 4th November 2015.

Acknowledgement: I wish to thank Michael Woodhouse for his suggestions and comments, which I have found invaluable in preparing this series of blogs.

Important Note: The record of the proceedings of the HS2 Select Committee from which some of the quotes reproduced in this blog have been taken are uncorrected transcripts of evidence, which are not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

 

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