Annex 1
Suggestions for streamlining the TWA Process
(based on recent experience with the Merseyside Rapid Transit
Project)
1. INTRODUCTION—OVERVIEW
Many of the procedures that applied during the
development of the MRT project such as the TPP/Package Bid approach,
have now been superceded. Further new procedures regarding the
appraisal of major schemes (>£5 million) are also being
developed. Accordingly, the comments made in this note refer to
remaining issues and highlight areas where further modifications
may be merited.
The key stages for major scheme development,
funding and approval that Merseytravel would advocate are as follows:
Develop comprehensive LTP (on a statutory basis)
identification of major schemes.
Endorsement of LTP by DETR
including consistency with:
UDPs.
Regional Strategy.
National Strategies.
EU Policies and Programme.
Major scheme appraisal
in accordance with emerging guidance;
"in principle" approval of scheme
business case (as an indication of likelihood of grant funding)
by DETR;
"in principle" safety case approval
by HMRI.
TWA Applications
Statement of Matters:
— this must be adhered to and form
the basis of the Inquiry.
Inquiry Rules to include:
— Scope of Inquiry (see above);
— a focus on "Local Inquiry"
issues only ie not to cover major/general points of policy/principle;
— Exchange of Proofs—non-compliance
rules that are enforceable; and
— a DETR observer to attend the Inquiry
to ensure that the Inspector's Report is a balanced and reasonable
document, and to allow a speedier decision process from DETR/Secretary
of State.
A set time period between the end of the TWA
Inquiry and the announcement of the Secretary of State's decision.
Although this may imply additional resources for the TWA Unit
the benefits would be as follows:
— reduction in uncertainty/planning
risk;
— scope for promoter to co-ordinate
resources and in particular develop detailed contract/tendering
procedures for procuring the promoted scheme to an understood
timescale; and
— give the private sector greater confidence
on the development and procurement of schemes.
Announcement of TWA decisions should be better
co-ordinated. A promoting body should be informed in the first
instance ahead of press releases/public announcements. (nb this
was not the case with MRT which caused unnecessary confusion at
a local level).
2. ISSUE ARISING
FROM THE
MRT INQUIRY
This section covers a number of the issues highlighted
in the Overview and provides further details particular to the
MRT Inquiry.
DETR Input Prior to Public Inquiry
Formal signing-off of the economic appraisal
before the commencement of the Public Inquiry. This is then relayed
to the Inspector during his/her briefing session with the DETR;
consequently, the Inspector would intervene and stop any of the
objectors attempting to question the economic case.
A clear policy statement be issued in relation
to the effect upon Bus Operators/jobs; and how these issues are
to be addressed in scheme appraisal, again to constrain the scope
of debate during the Inquiry.
A clear policy statement on legal matters eg
the government policy in relation to the requirement for provision
of exchange land for Sustran's land.
A formal signing-off on the issue of development
of the project eg whether the DETR feel appropriate feasibility
studies/review of alternative options had been undertaken. (LTP/policy/major
scheme issues).
As part of the process of obtaining Statement
of Views from the appropriate Local Authorities, a similar statement
should be submitted by relevant government agencies—HMRI,
Vehicle Inspectorate, English Heritage. It should not be within
the remit of the Inspector or Objectors to debate/question those
statements eg if HMRI state that there are no safety issues, then
an objector should not be afforded time during the inquiry to
question the promoter on the issues of safety.
A clear statement should be provided by the
DETR to the Inspector in relation to the status of the Statement
of Views in relation to the UDPs eg if a UDP is four years old
and the Statement of Views is updating the position of the local
authority. Again, if clear guidance has been issued from DETR
to eg accept the anomaly in the current, but "old" UDP
and to accept the updated views as expressed in the Statement
of Views.
The procedure for objectors submission of Proofs
of Evidence should be tightened up. For example, currently it
states that objectors should attempt to submit their proofs three
weeks before the start of the Inquiry—in the MRT Inquiry,
one objector (Redrow Homes) submitted their proofs virtually at
the end of the inquiry and just a matter of a day or two before
they were due to appear. This then makes the process of rebuttals
and simply familiarising oneself with the objection, virtually
impossible. This is especially the case when the objector is one
of the scale of Redrow (a housing developer that opposed the MRT
scheme)—discussing very technical issues and fielding many
technical witnesses
The importance of the Statement of Matters requires
clarifying and reinforcing, as, in the case of the MRT inquiry,
the Inspector exceeded by far the statement of matters.
The Inspector
Within the Inspector's report, they should include
a summary of both sides of the discussions (the stance of the
promoter and the objector) in order that the Secretary of State
has all facts before him, from this he is then more able to make
an informed decision.
The DETR should ensure that prior to the commencement
of the Inquiry, the Inspector is fully familiar with the documentation
and scope for the Inquiry.
The Inspector should ensure that the various
procedures and protocols of the inquiry process are adhered to.
For example, objectors Proofs of Evidence must be received the
three weeks prior to the start of the Inquiry.
The Inspector should be instructed to limit
the inquiry discussions to issues of a local nature, and not to
discuss/attempt to offer alternative interpretations of government
policy.
The Day to Day Running of the Inquiry
The promoter should be offered the option of
having their witnesses appear as a "panel", opposed
to individuals. This then facilitates a speedier response but
also eliminates the opportunity of the objector to ask the same
question/raise the same debates to each and every witness.
A representative from the DETR be present throughout
the Inquiry. It would not be expected that they would participate
in any of the discussions, but would ensure that the Inspector's
report that that is submitted is a true and balanced record of
the proceedings.
Less emphasis should be put on the "discussions
outside the inquiry proceedings", as this, in the case of
the MRT inquiry, then led to instances whereby agreements were
made in side rooms, however, once the objector's witnesses then
came to be cross-examined, they disagreed that any such agreement
had been made.
The Inspector should allow appropriate timescales
for the inquiry business eg in the case of the MRT Inquiry, two
or three times each week, the Inspector re-scheduled the objectors'
appearance times and dates. Furthermore, one objector submitted
proofs the day before they were due to appear, since the Inspector
wanted to close the Inquiry to a date which suited him, three
objectors were still being heard on the last day (Friday). This
left only a very short time for the counsel for the promoter to
prepare his closing, taking due account of the objectors proofs/closings
which he had only had a short time to consider. This meant that
counsel commenced closing at six pm, finishing after nine pm.
3. LEGAL MATTERS
This section addressed particular legal issues
raised by Merseytravel's legal/TWA advisers.
The application of Special Parliamentary Procedure
(SPP) when open space is proposed to be compulsorily acquired
(s.19 Acquisition of Land Act 1981) should be reviewed. Is SPP
still appropriate? Its prospect can give promoters major concerns.
What is and what is not "open space" is also far from
clear (the DETR did not fully address the issue in the MRT decision
letter). Given the use of old railway formations for light rail
schemes this can be a very important point.
Consideration should be given to the DETR's
power of delegation given by the TWA being exercised. Currently,
all TWA applications are decided by the DETR. Why is this
necessary for more minor applications? Compare with planning appeals
etc., many of which are decided by inspectors and not the Secretary
of State. This would help to reduce delays within DETR—see
below.
Although there could well be natural justice
etc. difficulties, consideration should be given to amending the
TWA so that late/additional objections can be disregarded. There
is no doubt that new objectors and additional points raised by
existing objectors late in the day cause promoters major problems.
So long as all requisite notices etc. are served, why can't late
objections/additional points be disregarded? (This is the case
with opposed private bills, which governed light rail schemes
pre. TWA.)
Crown land (including government department
land) cannot be compulsorily acquired. Why not? It is an old exemption
and should be reviewed as part of the DETR's ongoing review of
compulsory purchase laws (launched by Richard Caborn in 1997-98).
It can cause problems for promoters—eg Project Orchid.
The TWA Inquiries Rules should be amended to
include powerful sanctions for the late production of proofs of
evidence, etc. Currently inspectors are powerless to deal with
non-compliant objectors.
The TWA Applications Rules (currently being
revised) should allow promoters to amend their application (once
submitted) so that additional land can be affected. Currently
you have to make a fresh application if you want to expand your
limits of deviation, etc. Why? This can cause delays and difficulties
for promoters.
Post inquiry representations are a problem (eg
Wavertree in the MRT Inquiry). Why can't they automatically go
to the inspector if he/she has yet to complete his/her report?
Involving the DETR can often make little sense.
4. POLICY
A new DETR guide to the TWA should be considered.
The last (and only one) was produced in 1992.
We need guidance better guidance on—
(i) the relationship between TWA proposals
and the development plan(s)—UDPs in MRT's case. Given transport
schemes' long gestation period, isn't it unrealistic to expect
the development plan(s) always to tally with the scheme? For this
purpose isn't it helpful to keep statements of views—the
DETR is proposing to do away with them in their present form?
(ii) the relationship between TWA proposals
and (the soon to be statutory) LTPs;
(iii) the relevance to the TWA process of
fundability; and
(iv) the implications of the recent Rochdale
case (environmental assessment) to "outline schemes"
such as many TWA projects.
Inspectors need clear and detailed guidance
on the DETR's preliminary assessment of the financial and economic
case, when public funding is proposed, otherwise inspectors often
wander astray (eg MRT) in what is a complex area. Ditto re. Safety.
The DETR's TWA Processing Unit is excellent
and very helpful, but they need more resources to reduce the current
delays in the process. The DETR hardly ever meet their own target
of deciding cases within six months of receiving an inspector's
report. Look at Leeds—the inquiry was held in 1997-98 and
there is still no decision! After all, for a medium/large scheme
promoters pay £80k in DETR fees (and these are proposed to
be increased!).
The role of the DETR's 'statement of matters'
should be clarified and upgraded.
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