Ordered at 10.00am: that Counsel and Parties be called in.

  9784. CHAIRMAN: Mr Elvin, I suspect, it is you who is going to cross-examine Mr Smith.

  9785. MR ELVIN: Yes.

  9786. MR ELVIN: In the interests of efficiency, I am not going to go over ground that we have gone over with similar witnesses on similar issues, but let me just ask some of the same points very briefly in relation to EWS. EWS attended the ORR's hearing on 1 February and indeed I think you personally were there and participated in the discussion.

  (Mr Smith) That is correct.

  9787. If we look at the hearing transcript, we do not want to look at it in any detail because their Lordships have the transcript if they need to look at it in any greater length, but it is Exhibit 4C-068, page 68, and there we see one of your interventions raising a point and the point you are making here and in subsequent pages, we just need to note, is the point about securing the infrastructure works, is it not?[1]

  (Mr Smith) That is correct.

  9788. In this discussion, we can see, you make the very point that you make before their Lordships. If we look at the bottom of page 68, at lines 22 and 23, you make the point that only the Acton dive-under is committed.
  (Mr Smith) I do.

  9789. Which is the position before their Lordships today.
  (Mr Smith) That is correct.

  9790. We then have a discussion and it goes on for several pages, discussing the issue of infrastructure, does it not, until about page 75 and possibly beyond?
  (Mr Smith) That is correct.

  9791. So there is no question but that the ORR had a full discussion about the very issue you are raising before their Lordships which is: should the infrastructure works be required to be secured as part of the access option?
  (Mr Smith) As full a conversation and discussion as you can have in a one-day hearing.

  9792. But of course this came at the end of a very lengthy period of written representations, did it not?
  (Mr Smith) Not right at the end because of course there were further conversations afterwards.

  9793. But there had been significant amounts of written representations lodged. We can see them on the ORR's website and we have some of EWS's in the bundles.
  (Mr Smith) Yes, we made a 100-page submission which is referred to at the top of the exhibit you are showing now.

  9794. And you were unkind enough to question whether the Department had read it, I see.
  (Mr Smith) We did question that.

  9795. Let us not go into that, but the point is that you had ample opportunity to develop your points about capacity, securing freight paths, securing freight growth and securing infrastructure before the Regulator.
  (Mr Smith) We made those points.

  9796. Did you feel you were prevented in any way from making the points you are now making to their Lordships?
  (Mr Smith) We may go on to discuss our subsequent submission and further conversations we had with the Office of the Rail Regulator. We did feel that the ORR was focused on a number of other issues as well, so we did continue to make the point about the infrastructure.

  9797. But you do not feel that you were denied the opportunity to make your point as fully as you felt you needed to make it?
  (Mr Smith) The ORR's process is very transparent and open.

  9798. So, after the provisional decision came out, the provisional decision, as we have said to other witnesses and we do not need to look at it, made it very clear that the ORR had decided not to make the carrying out of infrastructure works a specific requirement of his directions, but that, because it was taken into account in the modelling and because proposed changes in the change control mechanism were afoot, he would go for an output-led approach to the access option.
  (Mr Smith) Well, that describes the ORR's provisional decision.

  9799. Yes. There was then further discussion, as you said, and you wrote at some length to the ORR on 17 March, and we have that also in the bundle. It begins at 04A-106.[2] That is the beginning of the letter and it runs on, I think, for about 20 more pages. You make two points in relation to the issues that we need to raise before their Lordships. If we go please to page 112, section 9 of the letter, my Lords, I have already quoted part of this in opening, but there, under the heading `Modelling', you deal with the output-led approach and you note in 9.1 at the end, "EWS understands that, with the exception of the proposed dive-under, there are no commitments", so you clearly acknowledged that that was part of the provisional decision.[3] In 9.2, you go on to say that you are disappointed that it will not be made conditional on those enhancements, but you, nevertheless, understand the ORR's proposal to condition the use of rights based on outputs.

  (Mr Smith) This letter followed a meeting that we had with the ORR on 13 March. We were invited by the ORR to attend for informal discussions. We do not have a record of that meeting. The ORR may do; they tend to keep notes.

2   Crossrail Ref: P67, Correspondence from EWS Ltd to the Office of Rail Regulation, 17 March 2008 (LINEWD-34_04A-106) Back

3   Crossrail Ref: P67, Correspondence from EWS Ltd to the Office of Rail Regulation, Modelling, 17 March 2008 (LINEWD-34_04A-112) Back