Track laying and planning permission

I think it was also partly due to the fact that they had been their previously maybe in Broadway's case. I remember the objection, luckily it came.to nothing. If we had gone ahead without the permission. That person might have caused a but of a racket to the detriment of the railway.

 

I thought I heard it said (by those at TSR) that the reason the public trains don't go beyond Horsehay station is that to do so would mean passing below Station Road bridge, which you weren't allowed to do with the public without a transport order, despite the railway having an extra half mile or so of track in that direction. It's a few years ago now, but was stated by the footplate crew after pulling a bit further forward that usual during the santa service - their lighthearted comments were along the lines that the carriage hadn't (quite) made it out the other side...

 

Planning law in relation to railway development hasn't had the long history of court cases that have characterised other areas of development so there are not many "stated cases" to help interpret what is in the General Permitted Development Order. I am very well aware that many parts of the wording of that Order are couched in terms so general that they just invite people top go to court for clarification. Generally a Local Planning Authority will be quite keen to rule that something is permitted development if it can be sure. If it is not sure the answer is to invite the developer to apply for a Certificate of Lawful Development under Section 192 of the Act. However, there is always the temptation on both sides to make a straightforward application for planning permission, especially if the LPA has intimated that it sees no objection to the proposal. The embarrassing thing is when one receives vehement objections to an application which one then has to acknowledge does not really require an application to be made. It's happened to me and it does the reputation of the LPA no good at all!

 

The Telford example is an interesting one but it is not unique. I am aware of another railway which has been re-instated in recent years, which crosses a public road by means of an existing road-over-rail bridge, and for which no T&WAO has been obtained. Following concerns raised by various people I sought guidance on this and have been told categorically (by the ORR) that a T&WAO is not a requirement - merely a very good idea, since it makes the holder a "statutory undertaker" which has various benefits (including the exemptions from building regulations and planning permission which have been mentioned already). It also gives some protection against claims of nuisance. Without a T&WAO, planning permission would be needed* and this exposes the railway to the whims of the local planing authority, which may not be a good thing. {*I'm interested to know if this is the official legal position or simply advice - I'm not sure, but personally I can't see why you would need permission to lay track on your own land, so long as it doesn't affect anything with its own legal protection such as water courses or protected species - and the example from Flaman earlier in this thread would seem to back up that view.}

In the particular example it was possible to re-instate the track through the bridge without affecting the road in any way and I think this is a crucial point (and probably also applies at Telford) since the legislation is linked to the fact that you are interfering with the public right to use the right of way. However the correspondence I received also went on to say that if a railway wanted to cross a road but did not need the other statutory powers etc., they would still be perfectly entitled to enter into an agreement with the local highway authority. Apparently such an agreement (dating from 1919) is still in force at Leighton Buzzard, although this is an(other) unusual case.

 

Firstly, Local Planning Authorities do not have whims; they approach determination of applications in the light of the operative Development Plan and any other material considerations. Secondly, your notion that you do not need planning permission to lay track on your own land is totally fallacious. The entire point of the development control system is to regulate what people do on their own land in the public interest. Laying of track is an engineering operation and is defined as development in Section 55 of the Town and Country Planning Act 1990. Thirdly, and I am straying into TWA Orders on which I am not an expert, it would seem logical to me that a TWA Order should not be required to run trains under an existing bridge.

You need to remember that if you are operating under a TWA Order, you are a "railway undertaking". This means that there are certain works which you can carry out as being outside the definition of development in Section 55 and other works which can be carried out under Part 17 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. (The GPDO). There is little practical effect between these two "exemptions" from the need to apply for planning permission. One rather obscure difference is that permitted development powers cannot be used if the development is of a character that would require Environmental Impact Assessment, a procedure opening another legal can of worms, whereas work that is "not development" cannot be challenged on EIA grounds. I have previously commented on the possibility of using powers under Part 11 of the GPDO but these can be a minefield. Trying to show that development is permitted under the GPDO because it is of a type expressly authorised in perpetuity under an Act of 1840-odd is not for the faint hearted!

 

Three points; first, as has been mentioned previously on this thread, a TWO is required in order to carry passengers on a railway, if the railway crosses any form of public right of way, whether above, below or on the level- basically, if the railway crosses the line of the r.o.w. on the map. My source? The late Maj. P.M.Olver, HMRI and various successors. Second, LPAs may not have whims, but they often suffer from a lack of knowledge of railway operation and the law regarding same, so their involvement in railway developments can sometimes cause more problems than it solves and is best avoided if legally possible; source? personal experience. Third, a railway development do's not have to be part of, or correspond to, a Local Development Plan; source, as above.

 

In my well-known previous life I kept all the railway jobs to myself so we got it right!

 

As regards planning and permitted developments, there is an interesting paragraph in the All Party Parliamentary Group on Heritage Railways published report on the Value of Heritage Railways (http://heritagerailways.com/cmsAdmin/uploads/Value-of-heritage-rail-report-by-APPGHR.pdf) which states: "Planning constraints. In general, heritage railways should benefit from the same permitted development rights as does Network Rail in relation to the national rail network. There is evidence that this principle has been eroded by the requirements of some planning authorities that heritage railways should seek planning consent for alterations or additions required for the railway’s operational use. This appears to reflect some uncertainty by both planning authorities and railways in relation to the requirements, and should be clarified through appropriate guidance. Listed building consent would continue to be required for those structures that are listed, as would the appropriate consents for changes in a Conservation Area. Operational requirements should continue to be exempt from the requirement for planning permission, particularly where the building or structure (such as a water tower or station building) is of a traditional railway design. "

 

A little confusion here (not surprisingly!) You do need planning permission to build a railway, or almost anything else, on your own land. However, if you intend to carry passengers on said railway and it crosses any public right of way, you need a TWO. The Local Planning Authority will be one of several consultees who will have an input into the TWO, and once the Order is confirmed, planning permission is deemed to have been granted. There are other statutory consultees; once the Environment Agency and Natural England get going, that opens another can of worms!
Lest one of my previous posts might have caused misunderstanding, let me explain that we initially intended to construct buildings and a short line on a greenfield site, on which to store rolling stock and run occaisional demonstration trains. For this, we obtained planning permission. Later, we decided to extend the line and carry passengers, which required planning permission and a separate license from the Ministry of Transport. Having done this, HMRI advised us that they regarded us as a statutory railway, so when we subsequently decided to erect further buildings that were necessary for the operation of the railway, we did not apply for planning permission. The LPA objected, on the grounds that we did not have a TWO and, therefore, no clear entitlement to "permitted development rights". We argued and the LPA, not being confident of their case, let the matter rest.
Since then, we have built a further extension, for which we obtained planning permission (though only after two applications and an appeal), but all further buildings and structures have been built without planning permission, a situation which the LPA has accepted.

 

This is what we thought but AFTER being briefed by HMRI the fact that Telford & Wrekin Council is a Unitary Authority means that we do not need a TWO. It would be desirable in the long term to obtain one for that extra level fo protection but the fact that Telford & Wrekin own everything and are our landlord then as long as they have done a full evaluation and are happy to give approval then we can run trains. That's the reason why we are running through Heath Hill tunnel to Lawley from this Easter. The same council approval also allows us to go south from Horsehay Station if we wished. In fact guess what? After Lawley that's where our focus will be next, as to go south means we have to completely replace the track thats in-situ.

 

I was aware of the above and the first sentence amazed me by the use of the word "should". There is no doubt that permitted development rights apply to the operational land of every railway operator; Network Rail is not mentioned. It sounds to me that some planning officers have not been bothered to check out the meaning of "railway operator" and have been giving advice off the top of their head! (It could also be a misguided attempt to get Councillors "on side" by getting them to specifically grant permission). Some organisations operate railways but are not railway operators, for example large industrial undertakings, but activities such as track laying are covered under the permitted development regulations for industry. Conversely a railway may own land that is not operational land (such as an office block detached from the operational railway) and Part 17 powers do not exist there.

More difficult for LPAs is Listed Building Consent on railway land. Obviously such is needed for alterations to listed buildings but it is also needed for work within the curtilage of a listed building. Now the concept of curtilage is simple when applied to a house, office or mill. It gets difficult where there is a large area of open railway land (for example a goods yard) wherein there is a single, possibly quite small listed building. It gets more complicated when there are scattered buildings of different grades because one can have a small Grade I building and a large grade II building on the same site and different procedures apply. English Heritage once told me hat they regarded all land in the contiguous ownership as the land where the listed building stood as "curtilage land". This was somewhat ill-considered and they backed off from this contention when I pointed out that such a view would mean that the entire mainland UK rail system was curtilage land. I believe that their current view is pragmatic in that they will agree a "cut-off point" for listed building control on a site-specific basis. For railways this probably means where the station area tapers off into a normal track-width formation. However, individual determinations still need to be made in respect of listed structures such as bridges, viaducts and unusual structures like the Chorley Arches. (If I might take a flyer on that one, I would say that the listed structure ends at the end of the cutting walls but I have no information on what EH's position actually was.)

Both LPAs and EH just want to keep in line with the law and they are very conscious that their decisions are open to scrutiny in many ways, including planning / listed building appeals, judicial review in the High Court or by way of a maladministration investigation by the relevant Ombudsman.

 

Ah right, that would explain it - thanks for the explanation.
When I'm on about is probably getting on towards 10 years? ago now - maybe longer.

Good luck with the future plans - I remember helping lay the original track through the tunnel a good few years back when the Royal Engineers first pumped it out and started clearing the backfill on the other side. Will be good to see service trains make it through to the new station area on the other side.

 

That raised a snort! Really??

On reflection you're probably right, but the quality of Planning Officers, and their detailed knowledge often leaves a lot to be desired, and whilst you might argue that it is unfair to expect them to be experts on every arcane nook and cranny of the law relating to planning matters, I would argue that it is reasonable for them to be honest about the situations that they are less certain about and not try to apply their standard view whatever that might be, and then to "dig in their heels" in the face of good evidence that they are mistaken. That the standard view seems to be particular to every individual officer even within the same LPA does not help the impression of whimsy. I will grant you that LPAs are all under resourced and that this is a factor as well and to further balance my comment, I have come across some excellent officers too, especially when jobs were at stake.

 

It's not only planning officers that often give that impression. Remember that the final decision is made by elected councillors, who often appear to decide on a whim and can and often do, reject the advice of their officers.

 

Interesting! I imagine that it works because a unitary authority is also the highway authority; if that is the case, it would also apply if your landlord was a county council, as is the case with some heritage railways, the WSR for example. Which leads to another thought- what happens if the authority sells the freehold?

 

Let me tell you a story about bollards. (I have spelled it correctly). One of my team, I'll call him Brian because that was his name and he doesn't follow this website, came to me with a problem. "It's this application for a row of bollards to protect this shop forecourt from casual parking and the possibility of ram-raiding. The Conservation Area Advisory Committee don't want them at all, the police are dead keen that they go in and the access officer says that they should have bright yellow rubber protective jackets. I don't know which way to jump". "You have a problem Brian, but not the one you imagine. These bollards are 'permitted development'; the application should never have been made or registered". So poor Brian was dispatched to make the best job of backpedalling.

There is a natural human tendency in any job to lapse into autopilot and just not think things through. As I said in post 51 above someone just hasn't bothered to verify the true legal position. They may have learned in casual way that Network Rail doesn't need permission for whatever and, with this half-remembered fact, manage to assume that only Network Rail can benefit. It's more a case of short cutting to get the job done than any conspiracy to be awkward with railway operators.

 

Having just read through this thread, I can't help but remember a tale I've heard with regards to the Parliamentary enquiry into the building of the Liverpool & Manchester Railway way back in the late 1820s'. Anyway the Board had their Chief Engineer there answering questions, a certain Mr George Stephenson [haven't a clue what he has to do with railways!]. To bring it to a point an "Honourable" Member enquiried;...."and what if a cow should happen upon the line Mr Stephenson?" Mr Stephenson pondered for a few moments before replying;....."would be rather unfortunate for the Cooow, Sir!" He being a Geordie of course.

 

Which is probably the reason we have had to fence railways since then! A rather far-reaching response.

 

Er no, the fencing is to keep the navvies in and stop them pilfering from neighbouring landowners. I thought everyone knew that?

Going back to my earlier post I raised the question of whether planning permission was actually required to lay track (in the absence of a T&WAO) and was slapped down - fine if this is indeed the legal position but I do know of one railway which has been laid at least partly without planning permission and I'm not aware that there has been any legal challenge - yet.

However my main point that a T&WAO is not necessarily a requirement to run trains (even crossing a public right of way) remains true since we now have at least three examples of this. These are obviously the exception but nevertheless they exist.


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I'm fairly certain that you will need some sort of legislative approval to cross a public highway (an L.R.O., T.W.O., Level crossing order, whatever) but I don't think that you need a T.W.O. to operate trains, passenger or otherwise. If you do, I can't find where that statement actually is. Can someone tell me? The Middleton Railway is another railway that doesn't have a T.W.O. (or L.R.O.) The O.R.R. would like it to have one, though!