On Wed, Sep 16, 2020 at 4:02 PM Dave Andrews <email@example.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.
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?:
- 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.
00 44 (0)7795 842295
Thu, 17 Sep, 10:42 (1 day ago)
Prof. Lewis Lesley BSc, AKC, PhD, CEng, FRSA, MICE, FCIT, MTPS.
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.
- 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.
- 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.
- 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.
09:08 (10 hours ago)
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|17:57 (1 hour ago)|
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.
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.
- 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.