Lynton and Barnstaple - Operations and Development

There is a plethora of information online related to TWAO rules and regulations. This one seems to encompass many of the questions being raised, although it is now about 6 years old, so details may have changed since then. https://wslaw.co.uk/wp-content/uploads/2018/05/twa-final-4131-4635-3172-v.1.pdf

 

I am just going by conversations which I had when I visited or spoke to at a show. I may have been misinformed or misunderstood.

 

I've read that before. I've now read it again. All that I can find relating to 'crossing' a PRoW is:-

"In theory, if a tramway were to be constructed entirely on private land without any crossing of the public highway or interference with third party property.."

but there is nothing to define what is meant by a 'crossing' . On the level would seem obvious enough, one might assume that going over it on a bridge is also 'crossing', but going under....hmmm?

 

Significantly the guidance says that you should obtain legal advice as to whether you need a TWAO or not.

 

Yes, but in the vast majority of instances the advice will be that it is required. I have to the best of my ability explained what I understand, from having been a railway director and manager, what the situation is, and whilst I may not have covered all eventualities (and I am not a lawyer) my understanding has been developed through the experience of among other things having seen off more than one planning authority who did not understand the law in this area. It is my expectation that in order to operate an extended L&B a TWAO will be required.

 

Two thoughts on this...

1. If legal advice is necessary in order to decide if a TWAO is required or not, then is that not a de facto indication that the situation is unclear and the guidance is deficient?
2. Presumably the legal advice will be given on the basis of (a) the facts of the railway's proposed extension and (b) the extent to which they do or do not meet the relevant criteria to require a TWAO? In which case, what are those criteria and why are they not made clear(er) in the guidance?

Confused....

 

You will always be advised to get advice for something as expensive and serious as an application for a TWAO.

It is really very straightforward though as it relates to the L and B. For the last time (I hope), the extension crosses a public road. It will be possible to build the railway once planning is granted, but to operate it a TWAO will be required. This is the ONLY practical route to obtain authorisation (LROs are no longer granted and and Act of Parliament is ridiculous overkill for this project).

Given the staged nature of construction, the trust is a way off needing to apply for the TWAO though. Who knows, by the time it is necessary they may have reinstated LROs. (I doubt it).

 

The guidance may well be incomplete, but that doesn't mean it's deficient - if the rules are complex, then guidance can only be a starting point.

 

In my experience lawyers/solicitors will ALWAYS say that legal advice is necessary even in cases where it is perfect easy to work out for oneself using easily available online sources. Not saying that is the case here, just a general comment.

 

...and probably no two lawyers will give you the same opinion Remember the PE Sec 73 debacle.....?

 

Good lord no, my best customers are the ones that don't take advice before starting...
(Well, not really, as they usually need more help than they can afford)

 

There are two reasons for this
1) the government cannot advise on their own laws as that would involve them taking sides against themselves if challenged
2) if you take legal advice, you have the benefit of PI insurance should it be negligent

 

The Snowdon Mountain Railway is certaoinly built without statutory powers as it is (was) all on land owned by one owner

 

Quite correct, but where can the ‘complex’ rules be read? Not easily, it would seem, without legal advice.

Nowhere in the T&W Act itself does it say that an Order is necessary to cross a highway or right of way. Nor in the DfT guidance on the Gov website.

The Winkworth Sherwood briefing, linked above, is a lawyer’s interpretation and I guess we must assume they know what they’re talking about. There may well be long established case law (probably predating the TWA Act in the era of Light Railway Orders and Acts of Parliament etc.) establishing that statutory authority was necessary for a right of way crossing.

 

Or it may be somewhere else, buried deep in highways law (statute, regulation, and case law). All of which may mean that “guidance” is unable to be reliable, and those preparing it are erring in the side of caution by not saying anything that could inadvertently mislead.

 

I think that the T&WAO gives you the right to cross a public highway along the line of route. That agreement can also be given by the highways authority (usually the local council), in which case a T&WAO wouldn't be necessary. I've been involved with situations where the Council have wanted to build roads across a railway but not vice versa. In the case of building a road over it was by agreement with the railway and highway authority. No T&WAO involved. Happy to be corrected by someone with better knowledge than me (which could be most people.)

 

Maybe that will the situation at KL, given that it will be a 'new' bridge? Quite how that can be applied to existing bridges such as Parracombe Lane, don't know....

 

The trustee dealing with the majority of the planning papers has stated on more than one occasion that a TWAO will not be needed for the extension so on what has been said in comments above this could actually have been a little misleading, when the topic is inevitably discussed at the Members Forum on Saturday I'm sure this issue can be bought up and the questions asked whether the extension can be build and operated on without a TWAO or only built without one, i know there are at least a couple of current trustee's on here so if they are keeping up with the comments they may well research the answer, meanwhile a local farmer seems to have gone to town on the trust over the CFL planning application...Happy days

 

You may be right but one important difference is a TWAO is not required for a Council, or anyone else, wanting to build a road - other, often less onerous, legislation's is applicable.

 

I should say straight away that "I am not a lawyer".

Reading the guidance at https://www.gov.uk/government/publi...ansport-and-works-act-orders-a-brief-guide--2, it says (my emphasis):

Promoters often need a range of powers to put their scheme into practice. Matters that can be authorised by a TWA order include:

[snip]

• the closure or alteration of roads and footpaths

[snip]
​

I think one possible interpretation would be:

• You require permission to make an alteration to a road or footpath (and crossing it would be an alteration if, for example, it resulted in constraining future modifications of width / height /weight of traffic by provision of a bridge either under or over).
• The requirement for that permission is defined in other acts, not specifically in the T&W Act
• Getting a TWAO is one way to obtain the permission - but if you don't use that mechanism, then you are likely to need to use a different mechanism to obtain permission.

I should stress again it is complete supposition - but it might explain why (1) there is no explicit mention in the T&W act (2) some people are claiming it is necessary and (3) others are saying it is not. In other words, technically you don't need the act to obtain your permission, but if you cross a road / path, you do need permission to do so, and obtaining a TWAO is a mechanism to obtain all the powers you need in one go.

Or I could be talking horse **** of course - IANAL!

Tom