Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence

Annex 1

Suggestions for streamlining the TWA Process (based on recent experience with the Merseyside Rapid Transit Project)


  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procedures that applied during the development of the MRT project such as the TPP/Package Bid approach, have now been superceded.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:


  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).


  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.


  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.


  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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