TWAO, Transport Works Act Board, Webtag, the DFTs cost benefit program for transport infrastucure

 

 

On Wed, Sep 16, 2020 at 4:02 PM Dave Andrews <tyningroad@gmail.com> wrote:

It is understood that in the standard process to obtain government funding which is available from the Public Works Loan Board, a complex process has to be gone through, including tendering by consortia and the use of Webtag, the DFTs cost benefit program, which is often criticised as being biased against tramways.

 

Questions:

 

1  Is use of Webtag mandatory in following the standard process as outlined above – I have been told that this was not always followed by some of the LAs who have installed trams?:

 

  1. In the case that a private investor is willing to take on and pay for the whole process, i.e. project development, permitting, legals etc is a TWAO essential?

 

3  If aTWAO  is essential, does the developer, who say has a preferred tram in mind, can he apply for the TWAO and thus avoid the complexity and delay of the tendering process and use his own preferred tram?

 

4   Is it possible and realistic to  simply apply for planning permission for an on-street tram, as has been suggested? ie not have a TWAO and still build.

 

Would appreciate any guidance from  the experts.

 

Thanks

 

Dave Andrews

@engineman999      

@TramsBath

00 44 (0)7795 842295

https://www.bathtrams.uk/

 

 

 

 

LJS Lesley

AttachmentsThu, 17 Sep, 10:42 (1 day ago)

to expertsfortrams@googlegroups.combobchard@islebarton.eclipse.co.ukbrad@tig-m.comA.S.F.Chang@lboro.ac.ukmartingarrett7@gmail.commerogersharrison@yahoo.co.uk
Dave,
See below:
Best wishes,
Prof. Lewis Lesley BSc, AKC, PhD, CEng, FRSA, MICE, FCIT, MTPS.

Begins

It is understood that in the standard process to obtain government funding which is available from the Public Works Loan Board, a complex process has to be gone through, including tendering by consortia and the use of Webtag, the DFTs cost benefit program, which is often criticised as being biased against tramways.
ANS
Only public authorities can get loans from the PWLB but can then can make loans to private bodies (at an interest mark-up but less than commercial rates). This is a common approach for redevelopment schemes and usually as a JV, e.g. the LA makes a Compulsory Purchase Order (CPO) for the site and the private developer redevelops, paying back the loan and having a profit sharing arrangement. The alternative funding mechanism is a grant from the DfT (again only to a public body), or from a HMG specific industry focussed scheme, e.g. INNOVATE, in which case a private company can be grant aided, within the restrictions of ‘state aid’ rules. 

Questions:
1  Is use of Webtag mandatory in following the standard process as outlined above – I have been told that this was not always followed by some of the LAs who have installed trams?:
ANS
Any new transport scheme will need supporting studies to show:
(a)  the need
(b)  environmental impacts
(c)  financial (IRR) / economic  (CBA) benefits
If no public grants are involved then a CBA is not needed but the developer will have to be satisfied that any loans/equity investment can be serviced and repaid, as well as creating a depreciation fund to replace assets when they wear out or become obsolete.
2. In the case that a private investor is willing to take on and pay for the whole process, i.e. project development, permitting, legals etc is a TWAO essential?
ANS
A TWAO provides:
(a)  deemed planning consent
(b)  CPO powers
(c)  immunity from nuisance prosecutions.
A CPO is usually very contentious and normally results in a Public Inquiry, both costly and with a difficult to determine outcome.  This is why I recommend that Bath trams is a street running system, not needing CPO.
The ‘Cortina crash’ case in Sheffield made (c) above worthless. On the other hand a LPA determining a planning application is representing the best interests of the local community, so it would be almost impossible for a resident to bring a successful nuisance case.
Even public bodes do not need TWAO approval, a route which among others Network Rail is following, either by direct application for planning permission, e.g. Norton Junction improvements on WCML or via a Development Consent Order. There are precidents for tramways being determined by LA via a Planning Application, supported by the above points, as well as not needing to prove that the funding is available but only satisfying planning conditions, including any adopted Local Plan.
3  If aTWAO  is essential, does the developer, who say has a preferred tram in mind, can he apply for the TWAO and thus avoid the complexity and delay of the tendering process and use his own preferred tram?
ANS
Two things are being confused. The TWAO gives powers to build and operate a tramway ( and will require proof beforehand that the funding is available ).
Secondly if the scheme is privately funded by a private  company, it is not subject to the public procurement rules of competitive tendering. Ask First Group how they buy their buses. Similarly when Winsconsin Transportation took over a part of BR rail freight operations, they ordered 200 new locomotives (Class 66) from General Motors. There were protests from European companies but were told clearly by HMG that a private company can spend its own money how it pleases (provided the shareholders are happy).
4   Is it possible and realistic to  simply apply for planning permission for an on-street tram, as has been suggested? ie not have a TWAO and still build.
ANS
Yes this has been done in Liverpool and Preston, and will be done shortly in other places. The minimum requirement for a Planning Application is:
(a)  completed application form
(b) 1:1250 scale plans of the proposal, including ‘red lines’ of maximum deviation.
(c) Environmental Impact Statement
(d) Transport Statement.
(e) payment of the Planning Application Fee (£2200)
Pre-applicaiton discussions with planning officers will ensure all the relevant information is provided. In Bath this will probably include a Report on the impact on the World Heritage Designated City, conservation areas and listed buildings. A planning consent will give powers to build and operate the tramway but not to enter into the highway for track installation and other necessary works. For this a complementary Section 278 Agreement (Highways Act 1980) is needed (model attached). This is a national document and allows a developer to modify the highway (e.g. by new junctions, traffic management, traffic signals and utility works to service the development) to enable a planning consent to be undertaken.
In the absence of a CPO consultations with the public and utility companies are vital. If LR55 tracks are proposed, then the utilities will be greatly relieved not to have their plant relocated.
End

From: expertsfortrams@googlegroups.com <expertsfortrams@googlegroups.comOn Behalf Of Martin Garrett
Sent: 17 September 2020 13:36
To: Dave Andrews <tyningroad@gmail.com>

Hello All

I can’t disagree with anything that Lewis Lesley has said so thoroughly, but please allow me to add my own experience of this area.

My experience did not cover any aspects of WLTB funding and its connection to T&WA orders.

 

  1. Is use of Webtag mandatory in following the standard process as outlined above – I have been told that this was not always followed by some of the LAs who have installed trams?:

I have heard spokesmen for both Centro (West Midlands) and TfL say at a Modelling conference that they have their own assessments that do not follow the standard WebTag/ BCA model and that their clout was sufficient for funding purposes.  They both specifically stated that they also included much wider social and economic factors in any assessment.

2,  In the case that a private investor is willing to take on and pay for the whole process, i.e. project development, permitting, legals etc is a TWAO essential?

No knowledge to answer this specific question.

  1.  If aTWAO  is essential, does the developer, who say has a preferred tram in mind, can he apply for the TWAO and thus avoid the complexity and delay of the tendering process and use his own preferred tram?

Here a bit of legal background plus my experience of the Bristol T&WA Public Inquiry 2010 may inform.

To build railways, canals, harbours etc an Act of Parliament was required.  Consequently, if any modifications were made that are not consistent with that Act, another Act repealing that aspect was needed.  In the mid 20th Century with the pace of change, this was regarded as a too cumbersome process hence the Transport & Works Act provided for a simplified procedure which normally required examination by Public Inquiry and approval by an Inspector before the DfT could issue an Order.  The Act created a procedure for creating a type of delegated legislation, the T&WA Order.

The reason for the T&WAO in Bristol in 2010 was that one BRT route modified an old railway line and rail bridge, hence it would amend an Act of Parliament.  It was the so-called Ashton Vale-Temple Meads route which became the m2 Metrobus, (though when we pointed out that it didn’t actually reach Temple Meads station, we were clearly told at the Public Inquiry that it wasn’t meant to!)

The route also has a loop around Bristol’s Central Business District and only a few hundred yards affected an old rail line, adjacent to to The Cut, but the Inquiry seemed to consider the whole route just because a bit of alignment was affected.  When the route was subsequently amended to use less of that rail alignment no new T&WAOrder seemed to be required.

 

  1.  Is it possible and realistic to  simply apply for planning permission for an on-street tram, as has been suggested? ie not have a TWAO and still build.

 

All the other Greater Bristol BRT/Metrobus routes were pushed through without a T&WAOrder.  Some Planning Applications for bits of the routes were involved but much of it was undertaken under Highways procedures, TMO’s etc.  Overall there was very little formal public examination of the project.  The councillors on the planning committees had little idea of the big picture, and were not encouraged to have.

 

Hope that experience helps to illustrate some of the points made by Lewis Lesley.

 

More information might be available from the DFT’s Transport & Works Act Unit if it still exists.  They were quite helpful 10 years ago.

Cheers

Martin

LJS Lesley

09:08 (10 hours ago)

Dear All,

I forgot to add the impact of the National Audit Office (NAO) investigation into publicly funded tramways.  One serious criticism was that legal costs exceeded engineering design costs (which might explain some of the subsequent track and other problems experienced ?). Another was the very high capital cost (CAPEX) compared to continental tramways.  The NAO concluded that tramways did not represent good value for public funds.
This was subsequently taken up in the DfT “Green light for light rail”, a misleading title, since one of the main messages was that CAPEX needed to be in line with continental costs (and this was before Edinburgh !) before there could be any further HMG grant funding. As a result no new tramways (or extensions) have been grant funded by HM Treasury. The extensions in Manchester and Nottingham were funded by L(T)A’s taking out ‘mortgages’.
The Prime Minister from his time as London Mayor (when he cancelled the Cross River Tramway) is not a tram fan, so do not expect any largesse from No.10.
Thus there are several reasons for ensuring that a new tramway (in Bath) can be operated commercially, without subsidy, and with a big enough surplus to service the CAPEX investment, whether as loans or equity.
Hope you have an enjoyable weekend.
Lewis


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Martin Garrett

17:57 (1 hour ago)

Hello All

I completely agree with the legal justifications for getting a T&WAO for a tram proposal.  It solves a lot of potential problems.

However my earlier observations stem from a different perspective, that of opposing a T&WAO in Bristol in 2010.  This was meant to pave the way for the Bus Rapid Transit in Bristol using a short stretch of former rail line (authorized by a 19th century Act of Parliament) for a small part of its route.  Hence the need for the T&WAO for what was (and is now) just a bus route using some disjointed bus lanes.  No more than 0.8km of it is guided busway across the whole Metrobus (aka Bus rapid Transit) network.

Campaigners wanted trams instead.  Regrettably the Public Inquiry process was not the vehicle for examining alternatives.  It can be legalistic and highly adversarial.

The opposition (us) operated on a shoe-string, and represented ourselves.  We just about found the funding for one transport consultant. The proposers brought to bear a mass of resources (and costs to the tax-payer!) including a firm of solicitors that specialised in private parliamentary legislation, and barristers, including a QC, not to mention local authority legal departments and professional consultants to deploy number-crunching written evidence, and furnish expert witnesses.  The proposers were Bristol City Council, South Gloucestershire Council and North Somerset Council all loosely coordinated by the West of England Partnership (WEP).  Bath & North-East Somerset Council had already had the good sense to withdraw from their BRT scheme.

MetroBus in greater Bristol is not a success, as we predicted, though the West of England Combined Authority (successor to WEP and continuing their dysfunctional tradition) claim that it is, and plan to invest in more such bus routes.

Cheers

Martin

 

Hello All

I have some comments regarding the notes below.

1 Use of WebTAG.

This is the Central Government method for evaluating the Business Cases for all transport projects receiving Central Government support and is approved by the Treasury. They recognise there are problems with it, but even following a wide consultation process a couple of years ago, they found my suggestion for a wider Multi-Criteria Appraisal would be too difficult to implement and as such WebTAG, whilst compulsory if you want money from the Treasury, who take a particular interest in tramway projects, is not fully fit for purpose. I also am a heretic to economists by considering the application of Discounted Cash Flows for Tram Projects is not consistent public sector capital financing practice, particularly when you come to major renewals in the future. The High upfront cost skews the NPV whilst reducing future income and when renewals are required, they start again with a new Business Case rather than planning and saving for the renewals which is the basis of DFC accounting.

  1. Is a TWAO essential even if fully privately funded?

I would say that it is. The TWAO is your friend and it gives you the statutory status that cannot be given by Planning permission alone. You still have to go through the same processes to get all the planning permissions and road notices and you will still need to an environmental statement and and and, that you need for a TWAO, but in different forums any of which can stop you. Only a TWAO can give you compulsory purchasing rights and the incorporation of legislative clauses that protect your operation from spurious complaint and injunctions. The Statutory Defence against Actions in Nuisance is one of the essential ones, otherwise anyone who finds say the noise of your tram at 5:00 hrs as you start you service, a nuisance as it keeps him/her awake could take out an injunction to stop you operating at that time and preventing you providing the service. You would also be secondary to Statutory Undertakers who may need to dig up the road and would not have the statutory basis that they have and would have to influence their actions. The TWAO gives you the authority and legislative power to operate under the rules for trams. A former very senior member of the ORR RI considers that it would be illegal to operate street tramway without a TWAO or Act of Parliament and it is likely that the ORR RI would close you down just as you start to operate.

If you want to run an off-street tourist tram you may get away without a TWAO, if you can buy or lease the land, are not affecting private rights without a wayleave, can negotiate with the authorities if you cross public rights of way subject to their conditions etc.

By the way Protection against actions in nuisance does not extend to road safety issues, that comes under different legislation, it only refers to nuisance, however the consequence of nuisance complaint could cripple your operations.

The TWAO is your friend, use it.

3 Tram type

The TWAO is about rights, construction, land, and operations, not specific equipment types. So as far as the TWAO is concerned the tram type is not that relevant, indeed it will change in the future. However, it will need to comply with the legislation for trams vehicles operating on road, Accessibility legislation (Equalities Act) and be approved in accordance with the ROGS process.

Also, whilst European Procurement Rules apply, and they are incorporated into UK Law but subject to revision after the end of this year, Public Transport provision and procurement is covered by the rules. The OJEU section will not apply but open procurement processes may still apply. Thus, fair and open competition may be required for some time, even for private operators. See what happens as the horrors of Brexit emerge.

4 See answer to 2 above. No TWAO – No Street Tram.

 

BTW, yes the TWA unit at the DfT is alive and well.

Tim