Power of TWAO: Jane Wakeham writes for Rail Professional Magazine
Wed 09 Nov 2016
This article originally appeared in Rail Professional Magazine on 1 November 2016
The introduction of Combined Authorities as a result of the Local Democracy, Economic Development and Construction Act 2009, later amended by the Cities and Local Government Devolution Act 2016, recognised the manifest advantages of councils coming together to provide economic development, regeneration and transport functions across traditional local authority boundaries. It perhaps goes without saying that the chances of achieving the first two of those objectives are significantly improved by addressing the third in a structured and progressive way.
It is therefore interesting to reflect on what is entailed in promoting new transport infrastructure and whether Combined Authorities are likely to have any practical advantages over their predecessor Integrated Transport Authorities when it comes to bringing forward proposals.
In the case of the construction and operation of new tramways, trolley vehicle systems and other guided transport, canals, and railways that are not of national significance, it is necessary to obtain statutory authorisation by means of Transport and Works Act Order (TWAO). This is delegated legislation (a statutory instrument) made by the Secretary of State for Transport under the Transport and Works Act 1992. The regime survives, and should not be confused with, the process for obtaining development consent under the Planning Act 2008.
A typical TWAO will authorise:
- Construction, operation and maintenance of the scheme;
- Compulsory acquisition of land or rights over land;
- Compulsory acquisition of other land required permanently or temporarily (e.g. for construction sites, access or environmental mitigation);
- Closure or diversion of roads or paths, or their creation;
- Other powers such as, for example, powers to use watercourses, protect adjoining buildings, move utility apparatus, make by-laws;
- Power to transfer the statutory undertaking; and
- Importantly, the provision of a defence against statutory nuisance.
It is evident that the potential scope of a TWAO is very wide. Indeed, it may extend to all sorts of ancillary development such as “park and ride” sites, bridges and underpasses or even electricity sub-stations and overhead lines related to a scheme. Putting all this together requires input from a number of discrete disciplines, each of which is essential to the outcome. Each discipline within that team needs to know what is expected of it to comply with the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006 and how its contribution fits into the overall scheme.
Since the TWA Order must include all those powers required to deliver and operate the scheme, it should be drafted only be specialist lawyers, usually Parliamentary Agents and it will usually be the Parliamentary Agent that oversees the preparation for, and conduct, of any public inquiry hearing objections in close co-operation with the project team. Where a TWA Order authorises development it will generally require planning permission and the necessary procedures have been assimilated into the TWA Order process. Either outline or detailed consent may be sought, although planning consent may be obtained separately. If listed structures are affected (for example, where the route of a tramway or other system passes through a city or town centre), applications for listed building consent or conservation area consent must be made to the local planning authority and will be “called in” by the Secretary of State so that they are heard as part of the TWA Order process.
So, it goes without saying that an application for new transport infrastructure is usually complex and, even where the need for a scheme is obvious and generally supported by the public, it is likely to be subject to opposition from those it affects. Simply gaining powers can be an expensive and, frequently, a demanding enterprise.
A key advantage that a Combined Authority enjoys is the ability to plan strategically across a wide area. Some devolution deals anticipate joint working with national bodies such as Highways England and National Railway, enabling new schemes to integrate with existing services so as to link people and jobs. Another advantage is access to a wider pool of experience and expertise, which ought, in theory, make it possible to proceed with applications for statutory powers more efficiently.
Perhaps of more importance, however, is a suite of financial advantages over the predecessor bodies; including, in particular, powers to borrow and to impose a levy on its member councils enabling the Combined Authority to re-distribute and pool resources across local authority boundaries. Combined Authorities are also able to retain 100% of business rates over a certain level (and to impose up to 2p on the pound on business rates in the case of Mayoral authorities). It is also fair to suggest that the very nature of the beast puts it in a stronger position to bid for funding of particular schemes from Government and, for now, from the EU than smaller bodies. Finally, the recent devolution deals included sizeable investment funds over a significant time period, making it possible to think imaginatively about how a future regional transport network might look, with a realistic prospect of bringing such plans to fruition in the medium to long term.
The coming together of public bodies who might once have been striving, as rivals, to promote independent schemes can only enhance the prospects for integrated schemes across former boundaries and investment in new technology.