S&D Railway Trust

Oh dear, I never thought this mess could become worse, but that statement shows that I was wrong.

I've some sympathy for the plc in their position of needing more cash, and finding themselves struggling to raise as much as they need (NB - I am considering this as though pre-Covid). Unfortunately, that is where my sympathy runs out. The escalation from discussions with the S&DRT to a notice of eviction is one hell of an escalation, while the casual (at best) attitude to contracts shown in the paragraph about 53808 would, if I were a supplier to the plc, have me refusing any credit and insisting on cash on delivery.

We then come to what may happen to Washford in the absence of the S&DRT. In this small country station, the reader is expected to believe that the site will both become an enhanced visitor attraction AND a worksite for the railway, taking both pway storage and engineering. That strikes this observer as rather an expensive facility to put in place, yet will somehow be achieved by means of a hostile eviction process in which the S&DRT will donate some of their assets to the plc. The cost of that - whether by purchase or replacement - strikes me as rather a lot more than the extra income that may accrue.

This position strikes me as illogical at best; but more likely disingenuous or worse. I would especially be interested to see if contemperaneous records of board meetings demonstrate that plan to have been in place before notice was served.

Sadly, I see the position of the plc supported by the WSRA and WSSRT. While I note that they have agreed on the involvement of arbitration, this is after the basic assertion of support for the S&DRT. Given the flatly contradictory statements of WSR plc and S&DRT, in which by tone I am disposed to believe S&DRT, I find the reference to the HRA oppressive and their use fundamentally inappropriate given the sharing of a director between both HRA and WSR plc. Why the charities have chosen to support the plc on this thin gruel I don't presume to judge, but I confess that I had thought better of those at the helm of those charities I'd previously believed to be honourable than to allow themselves to become complicit in this farrago.

 

The plc seems to have a very cavalier attitude towards contractual obligations. It says it cannot fund the overhaul of 53808, after having had the use of it. But that surely is the basis of the plc having been allowed the use of the loco. To say nothing of agreeing rental terms for a new lease, and two years later demanding an increase. And expecting an emergency gift from a charity which cannot legally give money other than to further its charitable purposes.

Who wants to do business with an organisation that has such an attitude?

 

Well if that missive from the PLC is their attempt at a situation diffusing then they are sadly mistaken.
I used to issue letters like that, I referred to them as "Pebbles in the Pond Letters". You chuck a pebble in and see where the ripples stop. However I would normally only issue them to client departments or suppliers to us, not to a tenant I was already in dispute with, and already beating with a big stick (legal action).
I fully agree with this comment from 35b "if I were a supplier to the plc, have me refusing any credit and insisting on cash on delivery"

 

Talking to former WSR volunteers who now volunteer on another line not a million miles away have said many times that while the WSRA exits there will never be any peace on the WSR.

 

You have to consider what the ultimate goal is for the charities in this crisis. Is it:
1) to continue to occupy the moral high ground,
2) to prevent the S&DRT from being evicted from Washford or
3) to prevent the WSR Plc from going bust and the West Somerset Railway from ceasing to exist.

The trustees of the charities are bound to act in the way that best represents the wishes of the members of that charity, so as much as various posters on here and even the trustees themselves want the goal to be alternative 1, that is not really an option, without it being made clear that it is also the wish of a majority of those members who care one way or the other.

As to option 2, it may seem selfish on the part of the West Somerset Railway Association, but a course of action that is not in the best interest of the Association, and therefore its members, is not open to it, regardless of how morally right that course of action may be. There really is very little use in the WSRA supporting the S&DRT in opposing their eviction if both organisations end up without a base when the holder of the head lease goes bust and the head lease becomes void.

So that leaves us with option 3. Does anyone honestly think that if the two charities formed up to the Plc and told them to withdraw the notice to quit, the Plc would just do it and everyone would be friends afterwards? Even if the Plc board considered that the threat of the charities using their combined shareholding against them at the next AGM was great enough to warrant withdrawing the eviction notice, and it is very unlikely that this is the case, as there are ways round the current position, the relationship between it and the charities would be irretrievably poisoned and the option of using the shareholding against the board would be the only option open to them. If that failed and it probably would, then there would be nothing left. In any case, the company might not actually make it to the next AGM.

Remember, the charge of the Light Brigade, glorious as it was, didn't actually achieve anything.

 

A bargain for who? I would say it was a bargain for the Plc. Washford yard, with its sole access straight off a busy main road over a working railway is damn all use to anyone else apart from the Plc, the S&DRT or another loco or wagon owning group. All the buildings, track and services were put in place by the current tenant, who is quite within their rights to remove them when they leave. The rentable value to any other commercial organisation is very close to zero.

The whole affair harks back to the absentee landlords of the C18th who, when their tenants had improved their farms by their own efforts and with their own money, then demanded higher rents because the land had become more valuable.

 

So I'm theroy if West Somerset railway won't overhaul 88 thus breaking agreement the S D trust could remove her from railway for remainder of ticket

Depending on ticket year at mid somer Norton and then rest at great Central for instance with agreement with great central or example paying for overhaul in exchange for a running agreement

 

The statement by the plc that they can't afford the overhaul of the S&D's loco at the end of its hire, despite the terms of the agreement is disturbing. Other loco owners all over the country may look at this and decide not to hire out their locos, unless the railway using their loco puts money aside in a separate ring fenced account each year, so that at the end of the term of hire there will be the money to cover the cost of overhaul. It is an absolute disgrace to take the benefit of ten years use of a loco and then say you have decided that you can't afford to overhaul it. It is such a shame that a superb railway has fallen into the hands of such people, and for the supporting organisations to line up behind those people - I'm feeling very sad.

 

Fair enough but neither organisation were transparent about their position and support for the PLC.

Also, I’d suggest that potentially ruinous legal battles places the WSR in an even more vulnerable position, so I find it hard to argue that supporting the PLC is safeguarding the WSR.

There is something of a paradox, the WSRA and WSSRT are too weak to force the PLC to change direction but strong enough they argue to moderate the behaviour of the PLC. This seems to be a contradiction.

The point about the charge of the light brigade is that it wasn’t one single miscalculation but rather the low point in a series of blunders and errors by people who should have known better.

I recognise that the WSR is not a good place to be at the moment and the behaviour of the PLC means people are being forced to choose. However, my impression is that people are choosing badly, driven by an over-estimation of their value to the PLC, their fear of losing access to somewhere where they have spent a large chunk of their life working.

History is littered with the bones of people who thought that they could ride the tiger and tame it. History shows us that what happens is the tiger ends up eating them.

 

Am I dreaming? All we need is Alf Roberts and we have the holy triumvirate of NatPres sh*thousery!! How's the latest restoration project going Stuart?

However, putting that to one side for a moment, on the first paragraph, potentially. But of course it only becomes absolutely clear the WSR have broken the contract in about 5 or 10 years' time. Up until that moment, it's up for interpretation and if the S&D trust remove their loco a court *could* decide it was the S&D trust that had broken the contract, with resulting consequences.

As for the second bit of your post, it seems unlikely. *If* the S&D Trust were able to legally remove their loco from the WSR, it will be much harder to get the same kind of agreement as any host railway will only be getting 5 years' running rather than the full 10 the WSR signed for. Far more likely a daily steaming fee arrangement would be arrived at, with the S&D trust cutting their losses and trying to get *some* money in the bank for the impending overhaul.

Using Stuart Reeder economics though, surely the S&D trust could simply sell Kilmersdon to fund the overhaul of 88, then sell the overhauled 7F to buy back Kilmersdon, and then buy it back with steaming fees? Repeat every 10 years, job done...

 

I'm afraid those thinking that the S&DRT can just remove the loco mid-ticket aren't thinking through the consequences. Doing so might actually be a lot more advantageous to the plc than the S&DRT.

Firstly, the agreement is run and restore. So technically, whatever mood music the plc is making about having insufficient funds to restore the loco, the plc isn't actually in breach of the agreement right now, and can reasonably still expect another 5 - 6 years usage out of the loco on the terms of the existing agreement. Only if it then failed to restore it would it have breached the agreement. So if the S&DRT acted unilaterally in that regard now, it would be them breaking an agreement with the plc, not the other way round.

The second point is that, as far as I can see, it is not that the plc has no money to restore the loco, but rather it is estimating that it will have insufficient a few years into the future. Thus far, there is an allowance in the accounts of just over £150k for the overhaul, and I guess the plc is probably expecting to have accrued somewhere in the region £300k by time it has to actually overhaul the loco. If it is making noises about the overhaul now, presumably it is because it thinks that will be insufficient, in which guess they are quite likely right - especially if they predict major boiler work next time round. (restoring 80151 last time with major boiler work cost about £500k, and that didn't have a tender).

So just suppose the loco left and went to another railway. Since the S&DRT would thereby be breaking an agreement with the plc, it is highly unlikely that the plc would be willing to give up the £150k already accrued for an overhaul; the net result would be that whoever gained the loco would have at best 4 or 5 years running to make up a figure well in excess of £300k, and on a loco that is already mid way through its ticket, so at the riskier end with regard how many more miles /days it could realistically do. That's a risky bet for lots of railways, most of whom are likely to have already considered indicative budgets for loco overhauls over the next few years and are unlikely to want to blow a middling six figure sum in those budgets.

Much as the more excitable might be stirred into a fit of rage demanding that the loco be removed forthwith, the best likelihood of seeing it restored again in the reasonably near future is I think for it to stay on the WSR - or, second best, for the plc to be the one to break any contract and run the risk of needing to pay compensation.

Edit: @flying scotsman123 said much the same, with additional sarcasm

Tom

 

I welcome the offer of arbitration. However, having said that, and whilst respecting @aldfort's position......

I have read yet again the 'joint statement'. It states ".....It was agreed that the best way to minimise those concerns was to use the services of an independent party, ......The PLC explained that it has already been in talks with the Heritage Railway Association about such an approach...". So (admittedly somewhat to my surprise!) the Plc had been discussing arbitration before the meeting which lead to this statement. In essence therefore the meeting simply agreed an approach which was underway already. I can find nothing in the statement to indicate, or make clear, that the WSRA and/or WSSRT played any role in actually getting the Plc to take that approach, unless this had been done prior to the meeting - in which, I would assume that it would have been mentioned by one or other of those bodies.

As an Association member, I know nothing formally of this situation other than what I can read in documents issued by the WSRA. Apart from those now in the public domain, I have received nothing from the Association - either by mail-shot or e-mail newsletter - that explains to its membership (1) what it is that the WSRA has been doing in the situation and (2) perhaps most importantly, why they have decided to support the Plc. It would not have taken long, as evidenced by the comments on here in the last 24 hours, for them to identify the various discrepancies between the Plc's 'view' and that already stated by the S&DRT, so what brought them down so unequivocally in favour of the former?

 

It is always best to think before acting! Arguably, the plc is in anticipatory breach of its contract for hire of the loco 53808, by publicly saying it can't afford to overhaul the loco at the end of the hire term. If the S&DRT removed the loco now,it could argue that it was mitigating its loss by taking the loco away before the cost of overhaul was increased by five more years use by the plc. But it could be risky in the courts, and the stakes quite high. So, although the plc has behaved badly, the risk involved in terminating the hire on the strength of the anticipatory breach may be one that the S&DRT cannot afford to take. I still see the plc as a bully.

 

Agree with the points regarding 88 and early termination. People need to remember that being “morally” in the right does not equate to “legally” in the right or even that “justice will be done”.

Right now it is hard to see a good outcome for anyone if there is an expensive legal battle. I am glad that mediation is on the cards. Both parties should make wholehearted efforts to get a resolution through that avenue.

regards

Matt

 

one must avoid confusing a provision in the accounts and actual cash. If the railway is in the dire situation it claims then it should formally serve notice on the s&d that it forecasts being unable to meet its side of the agreement and seek a formal renegotiation or early termination of the agreement. These would be the acts of an honourable organisation.

 

Looking through the statement, the press releases made by the PLC to date, and a FOI recently shared on Nat pres, we know the following;

- The PLC are in a good financial position at the beginning of 2020
- The PLC have enough money to employ a solicitor to send a letter to the SDRT to evict them
- The PLC have enough money to buy the lease off Somerset County Council
- The PLC have enough money to develop Washford if the SDRT leave in 2021
- The PLC don't have enough money to overhaul a loco, that they have incurred no steaming fees for, in 4 to 5 years time

Then we had coronavirus which obviously throws everything out the window, so there claim of no money would be applicable for this moment in time.

If you have enough money to buy all these luxuries such as the lease, but cant afford the basics which is a loco overhaul, then you either don't want to carry out the overhaul, or your making bad business decisions. Now I know people have opinions of councillors, but are Somerset County Council really going to go and sell the trackbed under the railway, considering there is a lease which outlives most people involved in the railway, and the fact the railway plays a key role in the economy of West Somerset. The threat is defiantly not applicable at the moment, maybe when your getting close to the end of the lease.

Could someone from the PLC start being honest, were you really in a good financial position or not at the beginning of 2020???

 

anticipatory breach is complex but in essence the Plc’s “words or conduct” put the ball in the SDRT court. By making it clear now that they can’t pay for the overhaul it make it more difficult for SDRT to just wait another 5 years and “see what happens”. I am sure that 88 will come into the mediation discussions about the lease as a result, we will have to watch this space.


Regards

Matt

 

Beat me to it.

I assume that if the case goes to court & the S&DRT demand as they are entitled to, that the PLC pays the money for compensation for termination of the lease into court before the proceedings start then we may well get an indication as to the financial position of the WSR