Guest author @pfh007 returns today to the Stubborn Mule. Staying on the theme of Sydney transport, but moving from train lines to motorways, he once again pulls out his beer coaster calculator (perhaps one day I’ll get him onto R).

QUICK SUMMARY: The proposal to widen the M2 motorway in Sydney recently received government in principle agreement.  This post examines the risk that due to a provision in the original motorway deed the widening proposal may put at risk the completion a rail link to North West Sydney until after 2046!

UPDATE – 26 October 2010  – Government announces it has now signed the deal with the operators to widen the M2!

The recent post “Playing with trains” took a stab at a cost-benefit analysis for a North-West rail link in Sydney. In the comments on the post, the question arose as to whether the construction of a rail link would require compensation payments to be made to the operators of the Hills M2 motorway, since the original agreement to build the M2 included a provision that provided protection from any government action that undermined the viability of the toll road.  In this post I will dig into this “no-prejudice” provision.

Naturally, any compensation payment(s) would be an additional cost in building and/or operating the North-West rail link and thus might be a factor in decisions to build it and where to locate it.

Last week the NSW government announced that an in-principle agreement had been reached with the operators of the M2 motorway to widen certain sections of the motorway.  The ASX announcement by Transurban stated that the costs of widening the road were $550 million and provided for the extension of the original concession period by 4 years to 2046.

The announcement was, however, silent as to how the no-prejudice provision in the original M2 agreement would apply to the road-widening proposal. This was surprising as the no-prejudice provision had been very controversial when first revealed in the 1990’s and it seems relevant to the recent discussions about rail or metro links to the North West.

Time for some more Google-assisted beer coaster calculations!

First stop is to find out what the original M2 no-prejudice provision actually said.  Google could not produce the actual deed but it did produce this interesting old report from the NSW Auditor General.

The M2 Deed and the “no-prejudice” provision.

The Auditor General report sets out the no-prejudice provision. In summary, the provision provides that if the NSW government takes action relating to the servicing of the transport requirements of the North West of Sydney which prejudices the operational results of the M2, then it will negotiate with the trustees so that the investors in the M2 will get the lower of the base-case equity return or the equity return they would have received if the prejudicial event had not occurred.

Of great interest to rail fans is the content of a letter from the Chairman of the Hills Motorway that the Auditor General included in the report. This “side letter”, which pre-dated the M2 deed, stated:

The Hills Motorway acknowledges the announcement of the New South Wales Government proposing a mass transit route connecting Parramatta to Hornsby via Epping, utilising the Carlingford line alignment in part.

The Hills Motorway proposes to execute the M2 Motorway Project Deed, having taken into account the above proposal and its likely impact on the M2 Motorway. As a consequence, the development of the Parramatta to Hornsby Mass Transit Route would not constitute grounds for negotiation under the M2 Motorway Project Deed.

The Auditor-General noted that the letter appeared to mitigate claims by the operators for at least the Parramatta-Epping section of any Chatswood to Parramatta rail link.

On the face of it, the no-prejudice provision would therefore appear to be directly relevant to action by the government to

• introduce or increase bus services to the North West
• build a heavy rail link to the North West
• build a metro line to the North West
• improve other roads servicing the North West

if those actions might reduce the number of toll payers using the M2 and thereby “prejudice the operating results from the M2 motorway”.

There is nothing really remarkable about having a provision like the no-prejudice provision.  If you were an investor and had just stumped up a lot of money to build a toll road, you would not be too happy if the government then decided to undermine your business model by providing an alternative transport option to your potential toll payers.

The question is whether the current no-prejudice provision is too wide and should, for example, be limited to certain types of government action (such as selling another competing toll road concession) and whether, while negotiating to widen the M2, now is a good time to clip its wings.

Has the “no-prejudice” provision ever flapped its wings?

The 1994 letter concerning the Parramatta to Epping rail proposal suggests that both Hills Motorway and the government of the day considered the no-prejudice provision to be a serious issue, but I have been unable to locate any information that confirms whether the existence of the provision has been a significant factor in any government decision or in the resolution of any issue relating to the M2 motorway since then.

It would be interesting to know whether there was any correspondence or discussion between the government and Hills Motorway about the Chatswood to Epping rail link before it was completed as the Auditor General notes it does not appear to be covered by the 1994 side letter to the M2 deed.

I have a hazy recollection that the initial introduction of bus services on the M2 was not all plain sailing.  I think there may have been an argument at some stage between the government, the M2 operator and Hills buses about the terms of commuter bus access to the M2. As that debate occurred in the era of human history now known as the pre-Googlassic, I was unable to locate any online references.  It would be interesting to find out if, in the course of those negotiations, there were discussions about the extent to which public bus services might prejudice the operating results of the M2.

One immediate question that comes to mind is whether the public bus services that use the M2 pay a special toll or whether the government pays the M2 operator some sort of compensatory payment that reflects the fact that 17,000 public bus trips each day might be considered to result in a certain number of individual M2 car/toll trips avoided.

Presumably, there was some discussion about the provision before the Metro link was announced but as the link was initially only going as far as Rozelle perhaps not.

Missing in Action – The “no-prejudice” provision

Despite its relevance to both a proposal to widen the M2 and to building a metro line or heavy rail link to the North West of Sydney, the no-prejudice provision has been keeping a low profile lately.

I am more than happy to be directed to some information on discussion of the application of the no-prejudice provision to the M2 widening proposal, but I was unable to find any reference or discussion of it on the RTA website, the Hills Motorway website or the 277 page RTA “Submissions and Preferred Project Report (August 2010)”.

The closest I found were some submission questions on pages 123‒133 of that document, but the responses to those questions did not touch on the no-prejudice provisions in the original M2 Deed.

Does it really matter?

If you read the RTA Submissions and Preferred Project Report (August 2010), the impression given is that the North West region of Sydney is generating a swelling sea of cars and that buses and new rail links do not reduce the need to increase the capacity of the M2.  This might suggest that we can sleep easily and not worry about dusty old provisions from 1994 that require the government to guarantee the returns of investors.

But it might also suggest that there is no good reason to retain the no-prejudice provision in its present form.  At the very least, it might suggest that in coming to an in-principle agreement with the M2 operator to widen the current motorway, now is a good time to modify the provision to explicitly exclude the impact of new bus services, new rail links and other public transport options as events that may trigger the no-prejudice provision.

Finally, one last reason for caution.  Traffic forecasting appears to be a very challenging science.  The history of Sydney’s toll road projects has been remarkable in the regular disconnect between the estimates of traffic flow contained in the glossy prospectus documents and the number of toll payers who actually turn up when the red ribbon has been snipped and they have to start paying.

I am no expert in this area and the forecasts underpinning the M2 widening proposal may prove 100% accurate, but I would feel more comfortable if the tax payer was not exposed to the risk that they do not.

On page 129 of the RTA document, response (b) notes that the tolls from the increase in usage after widening would not be sufficient to fund the project and that is why the widening deal involves an increase in the toll of 8% and an extension of the concession period by 4 years.  That suggests that a failure to hit usage targets will readily prejudice the operating results of the M2.

Finally, it is also worth noting that a large chunk of the Auditor General report on the M2 that I referred to earlier was concerned with the forecasts of traffic numbers contained in the original prospectus. More on that below.

Calculating the Prejudice

Leaving to one side what a flock of lawyers and judges might decide the words of the no-prejudice provision actually mean, how might we go about calculating the prejudice?

Time to turn over the beer coaster!

According to the RTA, approximately 100,000 vehicles currently use the M2 every day. That is an interesting figure because the Auditor-General’s report in 2000 set out the original base case projection of traffic numbers by 2010 to be 94,659, but only 76,289 under the then proposed financial restructuring. Transurban’s figures report that in the Sept 2010 quarter 96,983 trips per day were made on average, or 105,068 trips on the average workday.

The vehicle figures (whichever you prefer) suggest that the M2 is currently going gang-busters and exceeding the traffic projections made when the original deed was entered in 1994. That, of course, is entirely consistent with a proposal to widen the roadway.

If the M2 is currently at or exceeding capacity, minor government action would seem unlikely to prejudice the operating results of the M2.  A few additional bus services to the North West are unlikely to trigger the no-prejudice provision.

The Transurban ASX announcement states that one of the objectives of the M2 widening project return is to achieve by 2016 an increase in average daily trips of 17,300.

Current toll revenue

Currently the toll on the M2 is $4.95 for a Class 2 vehicle (cars and motorcycles) and $14.50 for everything else (trucks, etc) for the full route, or less to Pennant Hills Road ($2.20 and $7.10 respectively).

According to Transurban figures for the Sept 2010 quarter they earned approximately $36.7 million net of GST which is about $40.37 million inclusive of GST.

That equals $161.48 million per annum including GST.

Their daily average figure of approximately 97,000 trips amounts to about about 35.4 million trips per annum.

That suggests an average toll per trip inclusive of GST of $4.56.

Toll revenue in 2016

Assuming that an 8% increase in toll is applied, the average toll per trip stays constant (plus the 8%) and the 17,300 extra trips are occurring by 2016, then the toll revenue figures will have increased substantially.

114,300 car trips per day at $4.92 (the average toll per trip $4.56 + 8%) = $562,356 per day or $205.3 million per year.

That’s a tidy revenue increase of $43.8 million per annum (inclusive of GST) per year for the remainder of the now longer concession period (2016 to 2046, 30 years) for the $550 million investment to widen the road.

Needless to say the above figures are beer coaster calculations.

Could the M2 experience train pain?

How much pain could a heavy rail link to the North West cause?

As beer coaster fanciers would recall from the “Playing with trains” post, a modestly efficient heavy rail link to the North West with 15 train stations could move approximately 30,000 passengers on 25 services (at 6 minute intervals) during the morning peak period of 6.15 am‒8.45 am, or 60,000 trips assuming every person returned to their home each night.

Assuming that only 10 of the stations proposed are likely to compete with the M2, that would mean that competing stations on the North West rail link could service 40,520 commuter trips each day (once again assuming that the stations have equal passenger loads of 2,026 people per morning peak period).

As discussed in the rail post, securing that many commuters will not be easy and may require substantial re-zoning to increase population densities and perhaps other policies to build patronage on the new rail link, such as building extensive commuter car parks and connecting bus services throughout the catchment. The actions are also likely to decrease the appeal of a daily return trip on the M2.

Let’s assume that the rail link was built (and, conveniently for this exercise, that it is done by 2016—yes, optimism is good for the soul) and succeeded in achieving only 66% of capacity—attracting only 20,000 passengers each morning peak period to its 25 comfortable air-conditioned Waratah carriage (only a few months away now, fingers crossed) equipped services.

Let’s also assume that 40% of those 20,000 passengers are car users who have been attracted by the thought of relaxing and reading their iPads on the train rather than listening to honking horns and breakfast radio on the M2.  Those 8,000 train converts represent 16,000 lost trips each day on the M2.

The value each day of those lost trips is 16,000 × $4.92 = $78,700 per day or $18.1 million per annum (assuming they work 230 = 46 × 5 days per year) .

Considering that the business case for the widening of the M2 has a target of 17,300 extra trips by 2016, there could be some unhappiness if the majority of those 17,300 exciting motorway trips vanished into a railway tunnel.

That unhappiness would only increase if the railway hit its target capacity of 30,000 passengers per peak period (60,000 trips) and 50% of them were lost trips on the M2.   A loss of 30,000 $4.92 toll payments per day would represent an annual loss of toll revenue on the M2 of $33.95 million per annum (again assuming those train commuters only turn up to work 230 days per year).

OUCH!

That would mean that the tidy toll revenue increase of $43.8 million per year under the widening proposal might shrink to $9.85 million if there was a North West rail link that could attract 15,000 people who would otherwise be paying a toll to travel on the M2.

DOUBLE OUCH!!

As the estimated ticket revenue in my train post from approx 30,000 people paying $50 for a weekly ticket was only $70 million, it would be a nasty sting if $33.95 million of that had to be handed over to the M2 operators as compensation for loss of toll revenue.

It seems highly likely that a moderately well-patronised and well-designed new rail link to the North West (that interconnects with the Chatswood-Parramatta railway) would have the potential to prejudice, perhaps significantly, the operating results of an M2 that is widened and has a daily trip capacity increase from 97,000 trips to 114,300 trips per day. It is even possible that a well-designed and run North-West rail link could prejudice the operating results of the M2 without any widening taking place, but that is less likely as the M2 is already exceeding the capacity that formed part of the original base case for the road.

Summary

The absence of any substantial public discussion of the application of the no-prejudice provision in 1994 Deed to the M2 widening proposal and a North-West rail link and the potential for possible compensation payments to the operators of the M2 is surprising.

No doubt people with much bigger beer coasters than I have available will have performed much more sophisticated modeling of the potential impact of governments actions like a North West rail line or significantly expanded public bus services on the number of vehicles using the M2 per day. But even with my little beer coaster, it seems that there is real potential for government action servicing the transport requirements of North West Sydney to prejudice the operating results of a widened M2.

The problem is clear.

If the agreement to widen the M2 is likely to expose the government (and therefore the residents of NSW) to even greater risk of compensation should a North-West rail link go ahead, then the likelihood of a North-West rail link being approved for construction is reduced as those compensation costs would weigh heavily on the decision.  Furthermore, every action taken to improve patronage by creating bus links to train stations, or commuter parking or expanding the number of  services will only worsen the problem and understandably meet some resistance from the M2 operator.

Of course if the sophisticated modeling, that I am sure is on a laptop somewhere in Sydney, shows that future public transport by rail and bus to the North West will not prejudice the operating results of the M2, because the M2 when widened will have no trouble attracting 114,300 trips per day, then the agreement to widen the M2 should include a modification of the original no-prejudice provision to exclude future public transport services to North West Sydney as potential triggers for the operation of the provision.

At the very least there can be no harm in releasing the modeling that has been done on this issue so that the context of the in-principle agreement to widen the M2 and its potential implications on future public transport to North West Sydney can be fully understood by the community.

Possibly Related Posts (automatically generated):

• Train in vain (4 August 2011)
• Playing with trains – a North-West rail link (4 October 2010)
• Cognitive dissonance (26 June 2011)
• Dissonance and Debt (1 September 2011)