RE MIDLAND METRO (BIRMINGHAM CITY CENTRE LAND ACQUISITION AND VARIATION) ORDER CENTRO S CLOSING SUBMISSIONS

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1 RE MIDLAND METRO (BIRMINGHAM CITY CENTRE LAND ACQUISITION AND VARIATION) ORDER CENTRO S CLOSING SUBMISSIONS Introduction Approach to and structure of Closing Submissions 1. These Closing Submissions deliberately follow, and where appropriate repeat, those made in Opening. The Introduction seeks to cover some general matters and also sets out Centro s case in respect of the one remaining objector. Thereafter it follows the matters raised by the Secretary of State ( the SofS ) as being matters about which he wishes to be informed ( the SofM ). 2. Mr Adams produced, as an aide memoire, a Table 1 summarising where the various SofM matters are covered in the evidence from Centro; that Table encapsulates the position when proofs were finalised and does not, for example, include cross-reference to Rebuttal Proofs. This Closing identifies further relevant cross-references. 3. Centro has separately made an application for a partial award of costs against the remaining objector. The applications before the SofS and the extant powers already in existence 4. There are before this inquiry two applications, namely (i) for an order under the Transport and Works Act 1992 ( the TWAO ) and (ii) that planning permission, so far as it is needed, be deemed to be granted for the development proposed to be authorised by the TWAO 2. This follows the earlier grant of powers the Midland Metro (Birmingham City Centre 1 Adams proof Table 12.1 at page 25 2 Section 90(2A) of the 1990 Act

2 Extension etc) Order 2005 ( the 2005 Order ) for the full Birmingham City Centre Extension ( BCCE ) from Snow Hill to Five Ways. The BCCE is being delivered in phases, with the first phase to Stephenson Street under construction. 5. It is convenient to think of the TWAO having two main functions; first, to provide statutory authority (with associated powers) for a comparatively modest variation to the previously approved tram route to take account of the redevelopment of Paradise Circus ( PC and PCR ); second, to revive compulsory acquisition powers to ensure land assembly can be achieved for that part of the BCCE which already enjoys statutory authority (and full detailed planning permission). In rough geographical terms, the first of these TWAO elements the variation to existing powers starts some 80m west of Hill Street and finishes on Broad Street at a point some 60m west of PC; the second is in two sections, namely (i) along Stephenson Street, Pinfold Street and some 110m along Paradise Street and (ii) along Broad Street from a point 60m west of PC and running west for another 110m. 6. The PCR has outline planning permission and is a joint venture between Birmingham City Council ( BCC ) and Argent; it will remove the current gyratory system at PC. BCC has been granted compulsory purchase powers, to secure land assembly, for the redevelopment and an associated traffic order. The variation powers in the TWAO will allow the redevelopment to be served appropriately and sustainably in terms of public transport; that linkage with BCCE was an express consideration in the consenting process for PCR. Mr Adams has explained 3 the funding relationship between the variation element of the TWAO scheme and the PCR developers. 7. No objector to the TWAO remains other than Objector 11, VSH Nominees 1 Limited and VSH Nominees 2 Limited ( VSH ), the owners of Victoria Square House. VSH s property lies well to the east of the new powers sought in the TWAO to vary the 2005 route and so better serve PCR. It appears VSH acquired the freehold of the property at the end of January Prior to completion of the purchase, VSH and its advisers had presumably been carrying out the normal investigations and searches; at no stage has VSH sought to deny that, at all material times, it was fully aware of the TWAO proposal. In such circumstances, it is perhaps worthy of comment that it was only at or about the time of serving its Statement of Case that VSH (despite being advised by leading counsel) made known its main grounds of objection; and thereafter those grounds have been the subject of some considerable objection creep, including, most recently, a new legal argument regarding 3 See Adams proof and the various funding Notes referenced under SofM 11 below 4 Letter of 5 th February 2014 from MMS withdrawing objection of previous freeholder of VSH property 2

3 Strategic Environmental Assessment ( SEA ) now articulated in the VSH Closing. 8. Centro has already been granted powers and consents etc which include: a. Statutory powers to build the tram within the limits of deviation permitted under the 2005 Order. As noted, the TWAO seeks statutory authority only for the minor variation to take account of the new development at PC the easternmost extent of those variation powers lies some 80 m west of the junction of Hill Street with Paradise Street; b. Deemed planning permission for development under the 2005 Order 5. That deemed permission has been implemented 6. Under the TWAO, new deemed planning permission is sought in so far as it does not already exist 7. Pursuant to the 2005 deemed planning permission, Centro has also secured detailed consent (clearing down matters reserved under Conditions 2-4, 6, 8, 9 and 12 of the deemed permission), including for the area of Pinfold Street 8. c. Various listed building consents ( LBC ) 9 were granted in 2005, including consent to fix overhead electrification brackets to VSH. These have lapsed. Where, when and as necessary, fresh applications will be made to Birmingham City Council ( BCC ). d. Compulsory purchase ( cp ) powers, including in respect of VSH, were similarly granted in These too have lapsed. The TWAO seeks to renew such powers, in so far as the land/interest required remains the same, and seeks new powers where the alignment change around PCR so requires. e. Building agreements, re fixing of the catenary-support system etc to the building, were entered into with previous freeholders, including with the then freeholders of the property purchased by VSH in CEN/P8.3/PLA Ellingham Exhibits 1 and 2 6 Confirmed by letter from Birmingham City Council dated 21 st June 2010 Adams Exhibit 4 7 MMD 4.5J 8 CEN/P8.3/PLA Ellingham Exhibit 3 9 CEN/P1.3/SCH Adams Exhibit 3 10 Ibid Adams Exhibits 14 and 15. The agreement is expressed to include successors in title 3

4 The fallacy inherent in VSH s objection in so far as concerns its propose route options 9. In making its objection, VSH, or at least some of its witnesses, seemingly ignored or failed to advert to the fact of the route alignment between Stephenson Street and Broad Street (and indeed on to Five Ways) having been authorised and continuing to enjoy the statutory authorisation etc inherent in the powers and consents itemised under the previous heading. Indeed, during his xx on the last day of the inquiry, Mr S Tucker was still asserting ignorance of this point. His evidence, and that of other VSH witnesses, to that extent, proceeds from a fundamentally flawed factual and legal basis. That there is a requirement to re-fresh cp powers (and, in due course, listed building consents), does not alter the important fact of extant statutory authorisation etc. There is a basic difference between the position (i) where all necessary powers are being sought concurrently and for the first time and (ii) where, as here, compulsory acquisition powers are being sought to unlock a scheme which has already been authorised (and where, moreover, such cp powers as affect the objector are being renewed rather than being sought afresh). VSH seeks, however illogically, to argue that the present applications trigger a fullscale review of alternatives. That assertion is nonsense for reasons Centro has already rehearsed more than once, including in response to VSH s Day 1 adjournment application. They can be summarised thus: a. In making its renewed adjournment application on Day 1 of the inquiry, VSH itself referred to the Treasury Green Book 11 citing thus: 1.1 All new policies, programmes and projects should be subject to comprehensive but proportionate assessment, wherever it is practicable, so as best to promote the public interest The purpose of the Green Book is to ensure that no policy, programme or project is adopted without first having to answer [this question]: Are there better ways to achieve this objective? 1.8 This guidance applies.. at the start.. to any analysis used to support a government decision to adopt a new policy, or to initiate, renew, expand or re-orientate programmes or projects, which would result in measurable benefits and/or costs to the public. This is the appraisal project (emphasis added) b. As has always been accepted, it is correct that some cp powers and, in due course, listed building consents need to be re-granted. But the present applications cannot sensibly be viewed as seeking to renew a 11 CEN/P2.3/ECO Exhibit 1 at paragraphs 1.1 and 1.8 4

5 project where, subject to one minor caveat, the main powers to construct it remain extant and need no renewal. c. The caveat is the seeking of new powers to authorise a minor diversion from the approved route, a diversion promoted the better to serve PCR. There must be some doubt whether so minor a departure from the approved route is other than de minimis in terms of the Green Book. But, even assuming it could be brought within paragraph 1.8 of that guidance - as being to initiate, expand or re-orientate the BCCE project - that would, at most, only require consideration of alternative options capable of meeting a geographically limited need, namely the need better to serve PCR. Given the relationship of PCR and the approved route, any options to meet that tightly constrained need are necessarily limited to very modest diversions from the 2005 approved route in the immediate vicinity of PCR. The following points arise: i. VSH s options spring from examination of a much wider need. None of VSH s evidence has sought to show that, whatever else it may achieve, Option B termed SSQ in VSH s Closing - serves PCR better than the TWAO route. It is presumably for this reason that they feel constrained to couch the need and thus the potential for alternatives much more widely. As VSH s Statement of Case records 12 : The submitted transport assessment ( TA ) has not been the subject of a reconsideration of potential options for the route from New Street Station to Five Ways. This should have taken place. Instead the TA has assumed, without reconsideration of the relevant circumstances upon which the decision to confirm the 2005 Order was made, that the route alignment approved under the 2005 Order remains the optimal route without change except in relation to matters of detail relating to Paradise Circus and Paradise Street (emphasis added) By contrast, for the purposes of the present TWAO Centro has examined alternative options in the respect of the relevant need, namely the need better to serve PCR 13. This is also effectively how the SofS has correctly framed SofM 3, namely the alternative alignment options in Paradise Circus (emphasis 12 OP/SOC2.1/OBJ11 at paragraph 2.3 under the heading Alternative Routes 13 See eg Table 5.1 in Centro Statement of Case CD/01 5

6 added). VSH, as revealed by its own Statement of Case, advances options in relation to a materially different need; ostensibly that need is how best to get from New Street Station to Five Ways though, in reality, it seems more driven by a desire to avoid Pinfold Street and VSH s own property. VSH further describes the actual change of alignment here promoted by Centro as matters of detail; this further supports Centro s view of any re-orientation etc being de minimis. ii. Option A, via Hill Street, is unachievable on engineering grounds (which are not challenged by VSH and thus necessarily common ground), as explained below 14. Nor can it, on any sensible basis, be seen as an option meeting a need the better to serve PCR. It simply seeks to avoid Pinfold Street. There is no tenable basis for VSH s having persisted with this Option throughout the inquiry; it should have been conceded as being unachievable long since. Even though VSH continues to suggest this option remains on the Table, its own witness, Mr S Tucker does not dispute the alignment/gradient aspects which make it unachievable and further accepts that, even ignoring that, it necessarily performs less well than either Option B or the TWAO route. It can be discounted. iii. VSH effectively now advances only Option B which it terms SSQ in its Closing. iv. VSH sought to argue that various changes in guidance now found an alleged need effectively to go back to the beginning and ignore the extant authorisation under the 2005 Order etc. This is mistaken on at least two bases: first, as Mr Chadwick has explained, the supposed guidance changes are illusory and nothing of substance has changed; and, second, even were that not the case, it would be passing strange were changes of guidance to dictate that pieces of (delegated) legislation such as the 2005 Order must effectively be set aside to reflect such change were this the case the result would be little different from allowing Government to legislate by guidance, thus bypassing the legislature. On a practical note, to be for ever revisiting decisions already made is to risk achieving nothing, the precise opposite of what Government guidance, and policy, is seeking. 14 See further under SofM 3 6

7 v. In so far as VSH now seeks to criticise the validity of the 2005 decision and resulting Order, it has advanced no argument or explanation to justify such criticism in the light of the preclusive provision under section 22 of the Transport and Works Act vi. In so far as concerns that part of the alignment between Stephenson Street and Centenary Square (and in Broad Street) ie that part for which statutory authorisation, deemed planning permission and detailed consent thereunder already exist the question of alternatives might theoretically be said to arise in one very limited sense. In the context of seeking cp powers for that element, this would be the hypothetical question whether there were plots other than those proposed for acquisition under the TWAO which might better deliver the already authorised alignment along Pinfold Street, the first part of Paradise Street and the residual part of Broad Street. But this question does not arise on the facts here because, as shown by Centro s evidence, the identified plots are the ones which are required and no such potential substitutes exist. Nor does VSH argue that there is other land which could be substituted. d. One can summarise the position thus. Neither of VSH s options is an alternative route to meet the relevant need, namely the requirement better to serve PCR. Moreover one of those Options is unachievable in engineering terms. e. Additionally, Mr Parsons accepted in xx on the penultimate inquiry day that, having regard to the additional complications attendant on having a tram scheme, with its own additional maintenance requirements, crossing an active rail line, there was a presumption against such crossing if another option was available to allow such crossing and complications to be avoided. Centro submits that presumption is even stronger here given matters such as the potentially disastrous consequences of a derailed tram descending, or dislodging debris, onto the very busy western throat of New Street Station. f. In the alternative, even were that not the case, the relevant guidance imposes a requirement of proportionality. The exercise for which VSH argues would be wholly disproportionate. 15 See eg paragraph 10 of the VSH Closing. Sub-section 22(3) provides that, other than by challenge on prescribed grounds and within the six-week challenge period, a [TWAO]..shall not be questioned in any legal proceedings whatever 7

8 g. In any event, and in the further alternative, even were the foregoing arguments all wholly misconceived and wrong, the VSH options have here been examined and found to represent materially worse value for money than the 2005 Order route, as proposed to be varied by the TWAO. This is further examined under the separate heading Benefit/Cost Ratio below. 10. VSH has not been shy in pulling late rabbits from hitherto unmentioned items of headgear. Indeed, VSH has shown itself, in this and other respects, largely untrammelled by traditional concepts of fairness. So far as concerns the newly articulated legal argument re SEA, the point is misconceived. The relevant arguments to dispose of the point are set out under SofM 7 below. But, even were Centro wrong in all such arguments, the point remains that any earlier defect has been corrected given that the only two options advanced by VSH have here been examined and shown to be either unachievable or not to be preferred; and, by the very nature of a public inquiry, there has been the opportunity for public participation in the exercise 16. Additionally, VSH accepts that, even were its SEA/EIA arguments re alternatives to succeed, that would not amount to a reason to dismiss the present applications; the highest at which VSH puts it is that there would be requirement to (re)visit SEA/EIA before making the TWAO etc. 11. For all of the above reasons, VSH s arguments in respect of alternatives fall to be dismissed. Benefit/Cost Ratio 12. Centro has produced extensive material in term of showing very good value for money by way of benefit to cost ratio; it has done this through a witness with the necessary expertise and whose qualifications VSH does not challenge. Whilst VSH could have sought to call such a witness it has not; and, though Mr S Tucker has sought to carry out a parallel exercise to support VSH s arguments re costs and benefits, the document he produced revealed several fundamental flaws in his understanding and application of the relevant principles and in his calculations. In its Closing Submissions, VSH now, seemingly and implicitly, recognizes the limitations on and errors in Mr S Tucker s benefit/cost calculations 17 ; for example, VSH s Closing accepts 18 that the necessary software programmes and information are not available to 16 This refutes the point made in paragraph 72 of the VSH Closing 17 OP/INQ23/OBJ11 18 VSH Closing paragraph 68 8

9 it. By way of aside Centro notes that VSH has made little or no attempt to discuss this with the promoter or Mr Chadwick before springing Mr Tucker s document on the inquiry, without warning and on the last day. 13. So far as concerns benefits: a. VSH persists in claiming a greater ridership on Option B than the TWAO route. This ignores the clear evidence from Messrs Adams and Chadwick, and as explained orally to the inquiry on Day 2 and 3; that evidence set out the correct position, namely that: (i) even in the modelled periods, the difference was minimal, with Option B scoring slightly better than the TWAO in 2021 (11.5m annual patronage against 11.4) but Option B performing less well than the TWAO route, again by only a modest amount in 2031 (15.82 against 15.9) (ii) in any event, the modelled period conservatively excludes the evening/nighttime, a period when the passenger ridership would be materially greater for any route passing through Victoria Square etc; (iii) most importantly, the differences in patronage were considered to be within the forecast accuracy of the model and thus there was no guarantee that either route would achieve greater demand than the other. b. It is correct that Mr Burley made a number of assertions as to the effect on passenger generation of the Mailbox and other points along the Option B route. Yet this amounts to little more than unsubstantiated and qualitative assertion as opposed to a sound quantitative assessment via a model including all existing and planned city centre developments. It has been rebutted by Centro s witnesses 19 ; even were Mr Burley s assertions correct, such passengers would still be well served by the TWAO route 20. Moreover, Mr Burley fails to grapple with matters such as the fact of Option B failing to serve the Civic Quarter adequately or at all; nor does he acknowledge the greater evening/night-time market served by the TWAO route. c. In the result, one notes that Mr Tucker arbitrarily and wrongly took the one year when the modelling showed Option B attracting slightly more ridership than the TWAO route, ignored the year which showed the latter route performing better and further made no attempt to predict, as was required, ridership over a full sixty years by interpolation. His approach is open to material crticism. 19 See, amongst others, evidence of Mr Ellingham and Mr Adams 20 For the avoidance of doubt, Centro does not accept that the assertion made in the first sentence of VSH Closing paragraph 30 re long journeys rather than hop-on, hop-off can be derived from the economic case 9

10 d. VSH, through Mr Tucker and in Closing, sought to argue that the runtime assumed for trams on Option B was overlong at 49 seconds. Yet, as Centro has explained, that figure was referable to two matters: first, the greater operational length of Option B and, second, the fact that it passes through more junctions than the TWAO route 21. VSH does not dispute this factual matrix. Clearly, it may be possible to optimise the signalling on either route to achieve some measure of tram priority. Whereas this has been modelled and demonstrated for the TWAO route, in the Transport Assessment, VSH has provided no modelling for Option B. But this does not alter the basic fact that even assuming both routes can be optimised in this fashion, the additional junctions on Option B will still have an effect since, even if perfect optimisation could be achieved for one tram in a given direction, such perfection as both Mr Last and Mr Adams made clear - will always be elusive in a case where a bi-directional service is to run. The assumption that an Option B tram would have to stop at one of those additional junctions remains robust. Equally, and in any event, a tram on the Option B route will always have more distance to cover. e. VSH s further ground of attack in terms of run-times relates to tram speeds in and around Pinfold Street, and the assertion that a tram on Option B will achieve higher speeds. Centro has modelled trams along Pinfold Street at a maximum speed of 15 kph, which equates to a little over 9 mph. And this would be in an area where other vehicular traffic was banned. Mr Tucker asserted that tram drivers would feel constrained to drive more slowly than had been modelled, even as slowly as 9 kph, which is a little under 6 mph. Mr Tucker properly caveated his view by acknowledging he had no experience of driving trams. He relied in part on a figure given by Mr Last who had cited the figure of 9 kph 22 ; Mr Last had done that in the context of the minimum speed to which trams might reduce in certain circumstances and conservatively having regard to the maximum amount of time a tram might take to pass a given point. VSH sought to take this figure out of context, wrongly conflating a minimum with an average or even maximum speed; there is no justification for relying solely on minimum speeds for the purposes of calculating run times. The matter can be put in appropriate context when one considers that VSH s point depends upon assuming average speeds which are nearly three-quarters less than the type of speed limit highway authorities impose in residential areas, where one routinely finds cars parked on both sides of the road leaving room only for one car in any direction at a time and where children may emerge suddenly at any time between the parked vehicles. 21 Centro dated 9 th December 2015 appended to OP/INQ17/OBJ11 22 CEN/R1.1/OBJ11/ENG at paragraph

11 f. VSH s point on speed also ignores that, even if correct, it applies with equal, if not greater, force to the section of Option B where it would leave Stephenson Street for Navigation Street; as both Mr Last and Mr Adams explained orally, the need to achieve electrical clearance from the canopy on New Street Station would push the option over and leave little remaining room for pedestrians on the far side. g. Thus, in terms of tram speed and resulting journey time, there is little or nothing to justify any conclusion that trams on Option B would travel materially faster than on the TWAO route. And yet trams on the former route will have longer to run and have to negotiate more junctions; even if, which Centro does not accept, Option B could be assumed to enjoy some slight speed advantage, this could, at best, do no more than go some way towards redressing these two disadvantages with that option. It should also be noted that, in Centro s Benfit to Cost Ratio ( BCR ) appraisals, the maximum speed assumed for the TWAO route is 15 kph, the maximum for Option B is 20 kph; thus the benefit of the doubt has already been given to the latter route. h. It is not necessary to deal expressly with the various other claims which VSH seeks to advance in terms of benefits. They are all misconceived and Centro s detailed rebuttal is set out in its response to Mr Tucker s document reviewing scheme costs and benefits So far as concerns costs, the following points arise: a. Mr Tucker and VSH assert that no allowance should be made for, amongst other things, the fact that Option B is at a materially less advanced stage, would require much detailed design work, would need to go through an authorisation process and could not conceivably come forward as soon as could the TWAO scheme. This VSH approach includes, for example, the apparent assertion that the Option B figures for inflation, risk, management costs, design costs, legislative promotion and contingency should be no higher, and possibly less, than those taken for the TWAO route. He also demonstrably failed either to understand or consider optimism bias. In the result Mr Tucker s work is flawed to such an extent as to be not merely useless but actively misleading. It flies flat contrary to the very guidance upon which VSH relies to assert a need to consider Option B as an alternative. 23 Centro s document is CEN/INQ/41, which provides a detailed, tabulated response to Mr Tucker s Op/INQ23/OBJ11 11

12 b. So far as concerns the costs of dealing with the Navigation Street structures, Centro s first and prudent assessment was made in the absence of the full suite of Network Rail ( NR ) reports. Mr Parsons, even at that stage, felt able to assume a materially lower figure and Mr Chadwick expressly indicated in giving evidence 24 what would be the BCR for Option A and B were that lower figure used. Even then, Option B performed materially worse than the TWAO route and, incidentally, even worse than Option A were one to ignore the latter s unachievability. In the light of the reports now obtained with the Inspector s assistance from NR, Centro has been prepared to assume Mr Parsons figure but that does not alter matters one jot since the BCRs still reveal Option B (and Option A) to be inferior to the promoted route. c. One should also note that Mr Parsons figure relates only to construction costs. VSH s Closing thus makes a false comparison when looking at the figures considered at the 2003 inquiry 25. d. VSH similarly errs in asserting that Centro has sought to change the evidence re rail possessions and the question of compensation to NR 26. So far as regards possessions Mr Last necessarily accepted the obvious point that, if one were to assume the occurrence of routine NR possessions at precisely the time and on each occasion a possession was needed for tram works, such serendipity would remove the need for a separate possession for any Option B-related work; yet there is no guarantee of and every reason to doubt - such a happy concurrence, given, amongst other things, the exceedingly busy nature of the western approach to New Street Station. It thus remains prudent not to rely on such an assumption. Mr Steel also put it to Mr Last that assuming (i) NR accepted the work done to date and required no further work to assess tram loadings etc and (ii) NR agreed such loadings to be acceptable the period for NR s (re)consideration would be likely to be less than a year; on that hypothesis, Mr Last accepted the proposition. But that is a very different matter from accepting the underlying assumptions. It is accordingly unfair and wrong to suggest Mr Last or Centro has changed or ignored the evidence. Additionally, VSH s assertions reveal the dependence of their case upon highly optimistic, or even unrealistic, assumptions. 24 By reference to his Exhibit VSH Closing paragraph ibid paragraphs 15 and 36 12

13 e. VSH asserts 27 Mr Adams accepted that, even if the Centro scheme cost as much as the projections for Option B, it would still represent good value for money. Mr Adams does not accept that he either said or meant that. In the premises, Centro submits his words have been misrecorded or misunderstood and simply invites the Inspector to consult his own record. f. VSH asserts that there is no reason why the Option B renewal and operating costs should be any higher than asserted by Mr Tucker. But this ignores the greater length of route. g. Not only is Option B a longer route in operational terms, it also springs from the existing route at an earlier stage and thus involves greater construction length and complication. Mr Adams gave an estimate of some 4 to 6 months closure in respect of this aspect, not the 8 months attributed to him by VSH in closing. And the significance of the crossover at New Street Station is that, as was explained, it is non-motorised and for emergency use only. Additionally the significant matter is not that switch but the tram length 28, as was explained orally by Mr Adams. And Mr Last explained how the catenary system is divided into sections; any such work would require turning of the relevant section of power. h. So far as regards other matters of costs, they are dealt with in Centro s response to Mr Tucker s document on costs and benefits 29. The comments therein are relied upon in the same way as if repeated here. 15. This brings one to the resulting ratios of benefits to cost. Again, Centro relies upon, but without necessarily repeating, the evidence of Messrs Chadwick, Adams and Last, together with the various Notes provided by way of clarification or rebuttal 30 : a. Even allowing for Mr Parsons estimate of cost re Navigation Street structures, the BCR for Option B reveals it affording materially less value for money than the TWAO scheme. 27 ibid paragraph VSH Closing paragraph 27, second bullet 29 Centro s response is CEN/INQ/41 30 As to Notes, see, amongst others, CEN/INQ/6, 26, and 41 13

14 b. It is inevitable that Option B s costs, whatever further deductions are assumed to be appropriate, will always be greater than for the promoted scheme; yet, in order to achieve an equivalent BCR, its costs would need to be less than those for the promoted scheme 31. c. Similarly, on any fair basis, any benefits of Option B cannot be delivered until materially later than those of the promoted scheme. Nor is there any sensible basis for asserting that those benefits could ever equal, much less exceed those for Centro s scheme. d. Even were the above submissions all wrong, VSH would still have to show either (i) a fundamental and radical further reduction in Option B costs below even the lowest possible or remotely tenable estimate and/or (ii) a fundamental and radical increase in Option B benefits above the highest possible or remotely tenable estimate to equal, much less better, the BCR of the Centro scheme. The available evidence, even taken at its highest, does not begin to show this. It can thus safely be concluded that the TWAO represents the best value for money. Miscellaneous other background, including the position of BCC qua highway and planning authorities 16. One starts from the following facts; a. As noted, BCC has granted consent for the PCR, having had express regard to the ability of the BCCE, with the variation, to serve that development. b. The alignment of Midland Metro along the 2005 route is expressly supported by the development plan, with the proposals map 32 showing, inter alia, the route running along Stephenson Street and up Pinfold Street past VSH s property. That support carries through into the emerging plan. 17. In supporting the scheme BCC confirms the Order proposal will have numerous benefits. They have stated: 31 See, by way of example, CEN/INQ/26 32 Ellingham Exhibit 6 14

15 The City Council is aware of the objection made by [VSH] and does not support the view that there are more suitable routes. I refer you to our current and emerging development plan where the associated plans clearly demonstrate the Council s support to the 2005 Order alignment along Pinfold Street and through Victoria Square. The City Council would strongly oppose these alternative routes should they be taken forward. 18. VSH, through Mr S Tucker (when giving evidence) and in its Closing Submissions 33, has sought mischievously and wrongly to allege that BCC s support for the scheme is based upon a misunderstanding in that it had failed to consider alternatives (and particularly the costs of works to the Navigation Street bridge structures) in the way now advanced by VSH. This is nonsense: a. As explained by Mr Adams, there has been from the outset the very closest cooperation between Centro and BCC. That close liaison has continued throughout the inquiry. b. VSH s evidence is publicly available and its proofs in particular have been available since before the inquiry commenced. VSH s allegation necessarily carries with it the assertion that BCC - its officers and members have failed in their duty to keep matters under review. BCC has considered matters carefully before writing its most recent letter of strong support. It would have been surprising, to put it no higher, had BCC, being expressly aware as they were of what VSH proposed, not continued to keep matters under such review. c. VSH adduces not a scintilla of evidence to suggest that BCC has failed to keep matters properly under review. Even more surprisingly, it would seem at least in so far as revealed by xx of Mr S Tucker - VSH has neglected every opportunity itself to keep BCC informed; nor, for example did it object to the PCR planning/highway consents. It would seem it has also chosen to make no representations re BCCE in the context of the emerging development plan. Nor has it apparently sought to discuss Option B (or A) with BCC, whether qua planning or highway authority or otherwise. 33 Paragraph 39 15

16 d. VSH s point further ignores that BCC is the accountable body for the Greater Birmingham and Local Enterprise Partnership, and, as such, under a further duty to keep matters under review. e. So far as concerns the cost of the Navigation Street bridge structures, Centro prudently and conservatively assumed a higher cost than did Mr Parsons in the first instance and before the full suite of reports was made available by NR. Nonetheless, for the purposes of the BCR, Centro was even at that stage prepared to assume in VSH s favour the lower capital cost spoken to by Mr Parsons. Mr Chadwick expressly explained to the inquiry how, even if one made that assumption, the BCRs for both Option A and B still revealed materially worse value for money than did the TWAO scheme 34. Thus, one of the many errors in VSH s Closing is the assertion at the first bullet in paragraph 27 that Centro s rejection of Option B (or, for that matter, A) depended upon the cost of total removal etc; whilst Centro at that stage made what were then prudent and more conservative assumptions, it also had regard to Mr Parsons costings and still rejected what VSH proposed. f. VSH is also wrong in suggesting that BCC s rejection of Options A and B was primarily referable to costs and the Navigations Street structures. As the BCC report on the PCR application reveals, the determining factor for BCC was not cost but how best to serve PCR For VSH s point to be accepted, the SofS would have to conclude that BCC has been wholly derelict including qua planning authority, highway authority and as accountable body for the GBSLEP - in keeping matters, including the VSH alternatives, under review. Seen in this light, VSH s submission is untenable. 34 Mr Chadwick took the inquiry to his Exhibit 11 (CEN/P2.3/ECO) and explained that, in such circumstances, the BCR in Option A Table 2 merely rose to 1.5:1 and that in Table 11 for Option B to 1.2:1. Thus, even assuming Mr Parsons more favourable costings, VSH s alternatives still performed materially worse than did the promoted scheme. 35 See Ellingham Exhibit 3 (CEN/P8.3/PLA) at and, in particular, paragraph

17 VSH s approach to the inquiry process 20. Various matters arise. 21. First, VSH has made not one but three attempts to achieve adjournment of the inquiry, namely (i) an application 36 to the Inspector, (ii) an unsuccessful application to the High Court seeking to quash the Inspector s refusal of adjournment and (iii) a renewed, oral application to the Inspector on Day 1 of the inquiry. At no stage has VSH sought to take the application for (permission to seek) judicial review refused on the papers - further. In so far as this behaviour falls to be categorised as unreasonable, it is dealt with in Centro s separate Costs Application. It is, however, still relevant to record the terms in which Lang J refused permission (and awarded Centro its costs) 37. Reasons: The Inspector s decision to refuse to adjourn the Public Inquiry listed to begin tomorrow (19 th November) does not disclose any arguable error of law in the manner in which he exercised his discretion. Prejudice by reason of Centro s failure to disclose evidence in time, adequately or at all The Inspector considered the points put to him by both parties regarding provision of information. He concluded: Centro has acted within the Rules, remaining queries that VSH may have could reasonably be taken up in cross-examination, and that the responses given by Centro in correspondence relating to the provision of information are reasonable. He does not consider that there would be prejudice to VSH as a result of information provision if the Edition A timetable was followed. Upon consideration of the submissions and evidence before me. The Inspector was entitled to reach these conclusions, in the exercise of his judgment, including his knowledge of the issues and the evidence. I consider the Claimant has failed to establish any arguable grounds for judicial review on this ground. Availability of counsel 36 X4.3 - Pinsent Mason letter dated 11 th November X8 - Order of Lang J dated 18.xi.14 and circulated to the parties and the Inspector/Programme Officer

18 The Claimant s leading counsel was booked from 19 th to 21 st November only, and has other commitments thereafter. The Inquiry is likely to last until 3 rd /4 th December. The start date of the Inquiry was notified by letter of 8 th September, without any finish date. Evidence was exchanged on 22 nd October, from which it would have been apparent that the inquiry would take longer than 3 days. Indeed, the Claimant s own evidence includes six technical witnesses, for whom the time estimate is 3 days, including cross-examination, so even prior to 22 nd October the Claimant should have realised that the entire inquiry would take longer than 3 days. The Inspector s Indicative Order of Events was sent by on 6 th November, showing a finish date of 3 rd December. It was not until 11 th November that the Claimant applied to adjourn the hearing. It seems to me that the Claimant and its legal advisers have failed to take adequate steps, at the appropriate times, to ensure that a suitable representative was available, or to seek an alternative hearing date at an earlier stage. It would cause undue delay and inconvenience to other witnesses and parties if the Inquiry cannot proceed as planned. Junior counsel or a new representative can take over from leading counsel if or when he departs from the inquiry. I consider the Claimant has failed to establish any arguable grounds for judicial review on this ground. (emphasis added) 22. Second, following refusal of VSH s second adjournment application, VSH s counsel, necessarily presumably - on instructions, sought to question the inspector closely and repeatedly in the apparent hope of securing an answer which suggested he had closed his mind to VSH s Options; indeed, the questioning could properly be termed robust cross-examination. It is to be further assumed the aim was to elicit an unguarded response and so found a possible ground of challenge in due course to any decision to make the TWAO. The Inspector for his part confirmed that this was not what he had done ie he had not so closed his mind. 23. Third, VSH has pursued a policy of what may be termed objection creep. The late appearance of arguments such as the legal argument re SEA evidences this. Either such matters had not previously occurred to VSH or, and for 18

19 whatever reason, a decision was taken not to reveal such points until a later stage. Either way, such matters should be borne in mind when assessing the cogency of and weight to be attached to such late-appearing points. 24. Fourth, and Centro assumes through mistake or misunderstanding, VSH s Closing submissions reveal a number of factual errors in recording the evidence. Some of these have already been pointed out. Centro simply invites the Inspector to check all submissions whether made by VSH or herein by Centro against his own record of proceedings. In order not to over-burden this Closing, to the detriment of clarity, what follows does not seek to identify each and every submission made in VSH s Closing; accordingly the mere fact that Centro s submissions herein are silent on a given point should not be taken as acceptance of or agreement with it. The most important starting point is the Inspector s own record of the evidence, not what the parties submit was or was not said. The weight to be attached to evidence 25. As found by Lang J, VSH has had ample opportunity to ensure it had proper representation at the inquiry as and when appropriate. It is thus only VSH s intransigence which has deprived the objector of the opportunity to crossexamine those of Centro s witnesses who appeared only in the second week of the inquiry, namely Messrs Ellingham, Parkhouse, Surfleet and Ms Bolger; this point also applies to Mr Last s evidence save in so far as concerns the matters canvassed in the third week of the inquiry. Those witnesses were all called and tendered for questioning; it was VSH s own choice not to have instructed a junior who could have been brought up to speed sitting beside Mr Steel in the first week and then have xx d Centro s witnesses. So far as concerns Messrs Adams and Chadwick, Mr Steel had the opportunity to question them; as noted at the time, Centro does not accept there is any material distinction between questions of clarification and cross-examination in any event, Mr Steel s questions (as he was entitled to do) went materially further than simple clarification. 26. In the result, great weight can be attached to Centro s witnesses since they either were, or could have been, xx d. Centro has not had an equivalent opportunity to xx VSH s witnesses, other than Messrs Parsons and S Tucker; less weight should therefore be attached to the evidence of VSH s witnesses in so far as there has been no opportunity to test it by xx. 19

20 27. Mr Steel submits 38 that, where (i) the promoter has identified a policy as relevant and applied it and, additionally, (ii) the objector has then relied on it, there is no reason to give that policy anything other than full weight. This is nonsense. It ignores, for example, the fact that many policies within a development plan may be relevant but may equally pull in different directions or reveal tensions (see further under SofM 4 below); this is why the Courts have confirmed a need to identify the dominant theme or policy amongst all the policies which, though relevant, may be no more than tangential. 28. Mr Steel further submits 39 that..as it is now clear that the information on which the Inspector and Secretary of State made their respective recommendation in 2004 is unable to be relied upon, all weight concerning its conclusions in favour of the Order route should be set aside. This cannot be allowed to pass without challenge. It would be surprising if there had not been changes in the factual matrix since that time; similarly more or different information may have become available in the intervening years. But Mr Steel s submission material overstates the position. It is a matter for the SofS, with the advantage of the present Inspector s report, to consider the earlier decision and report (including the treatment of and conclusions on options), determine which conclusions remain valid and which need to be qualified; he should then determine the relevant weight to accord them. Centro s approach in these Closing Submissions 29. What follows deals with the various SofM in turn. In many cases it is not necessary to say a great deal, in some instances because the point is no longer in issue. Similarly, this Closing seeks to avoid needless rehearsal of evidence for its own sake; instead such evidence is cross-referenced. 38 VSH Closing paragraph 2 39 ibid paragraph 25 20

21 SofM 1 The objectives of the TWA Order in the context of the proposed Centenary Square Extension ( CSQ and CSQE ) of the Midland Metro Light Rapid Transit System 30. The objectives of the TWAO are variously identified, including in section 4 of the Centro Statement of Case and the Concise Statement of Aims 40 ; these have regard to the changes at PCR and identify the aims of the variation proposal. BCC supports and endorses the ability of the promoted scheme to achieve the relevant aims and objectives In the premises the promoted scheme can be seen as the proposal best suited to meet the relevant objectives and aims and one which is materially better suited in that regard than VSH s Option B (even assuming one make s the most favourable assumptions in favour of that latter scheme). Centro does not understand VSH to have challenged the relevant objectives. 40 MMD/0.1 and MMD/3.4; see also the evidence of Mr Adams 41 BCC letter of 20.x.14 at page 3 SUPP/1

22 SofM 2 The need and justification for renewing the compulsory acquisition powers for the CSQE previously conferred by the Midland Metro (Birmingham City Centre Extension etc) Order 2005 ( the 2005 Order ) and for varying the tramway alignment authorised by the 2005 Order Renewal of compulsory acquisition powers 32. Centro relies upon without need of repetition - the evidence, oral and written, of its witnesses which identifies, inter alia, (i) the strong policy support, at all levels of Government for the promoted scheme, (ii) the need for the scheme (including the need for a modest variation to the previously authorised route the better to serve PCR), (iii) the BCR which shows the scheme to deliver not merely good but a very high level of value for money in the public interest and (iv) the comparatively modest level of adverse impacts, which have been yet further reduced by mitigation and which are, in material respects, less even than the iteration of the scheme consented in It should also be noted that the quantum of land acquisition proposed is remarkably small in the context of a scheme seeking to thread its way through one of the busiest parts of a great City. And the fact that it does thread its way through so successfully reinforces its superiority over VSH s Option B which, by avoiding these key parts of the City Centre, serves the public interest less well. 34. In the result the need is made out and the justification manifest. Variation of the tramway alignment authorised by the 2005 Order 35. The need and justification for the BCCE have been clearly established over a number of years and accepted by, amongst others, the SofS and BCC. The rationale underlying PCR and its inter-relationship with the BCCE has emerged more recently but still over a period of years; it too has been accepted by, amongst others, BCC. This was covered primarily by Messrs Adams, Chadwick and Ellingham; again this Closing does not seek to reprise that evidence. 36. The 2005 alignment and route, incorporating the proposed minor variation, represents the appropriate case to progress.

23 37. As with cp powers, the need is established and the justification made out. 23

24 SofM 3 The alternative alignment options in Paradise Circus considered by Centro Preliminary 38. In circumstances where the BCCE route and alignment have been endorsed and granted powers, the issue of variation arises only in so far as a limited deviation from that line is sought in the immediate vicinity of PC. The revival of compulsory acquisition powers does not alter this. Alternative alignment options in PC 39. These have been clearly set out and considered, including in the ES supporting the TWAO. Messrs Adams, Chadwick and Ellingham have dealt with them, supported, on engineering matters by Mr Last. Save in so far as concerns Option B (and apparently A) VSH does not challenge consideration of those options. Nor does it adduce any evidence to show that its option(s) are better able than the TWAO route to meet the need to optimise BCCE s ability to serve PCR. Alternatives as raised by VSH 40. VSH acquired the property in January 2014, in the full knowledge of the TWAO proposal. Neither it, nor the previous freeholders, raised any issue of alternatives in their original objections to the TWAO. Indeed, the first clear glimpse of VSH s objection at or about the time of its Statement of Case; that document asserts there are at least two variants in addition to that authorised under the 2005 Order (as proposed to be varied by the TWAO), namely (i) along Navigation Street and Suffolk Street Queensway and (ii) along Navigation Street, Hill Street and Paradise Street. Even ignoring engineering considerations, these alternatives perform materially less well overall than that within the TWAO. BCC concurs, stating 42 : [BCC]..is aware of the objection by VSH Nominee 1 Limited and VSH Nominee 2 Limited and does not support the view that there are more suitable alternative routes. I refer you to our current and emerging Development Plan where the associated plans clearly demonstrate the Council s support for the 2005 Order alignment along Pinfold Street 42 SUPP/1