Lynton and Barnstaple - Operations and Development

DaveE,
I very much doubt the legal and planning teams will take much if any notice of this discussion, or of any speculation on our part!

 

If I may

• Lynton station site

Not cat in hells change in getting back there. An agreement exists between the Trust and Lynton Town Council to improves access of the railway to or in Lynton. How that is going to be worked, no one has done the figures on it yet, but the suggested site is above Lynton at Lydiate Lane, fine for an extra mile or so but does not full fill the wish of the town council. More work on this is required.

• Dean Steep - completely new formation required over and around the road.

One proposal that has been suggested and that is to build a new concrete viaduct other option are still open.

Caffyns to Dean Steep a new over bridge across the A39 will be required. As well as a new alignment towards Dean Steep, as much of the track bed at this point was used on the reconstruction of the road after the Lynmouth floods.

• A39 tunnel and associated cutting clearance - probably more doable than some of the others!

The bridge/tunnel just North of Woody Bay would be doable subject to land ownership issues, but yes could be done.

• Grob's unwilling to sell at Parracombe.

Not expecting this situation to change any time soon. AIUI would be a waste of time, money and effort to try to extend the railway to anywhere near Parracombe at the present time.

• Wistpoundland Reservoir deviation - I'm not sure this will be as easy to do as some seem to think.

A route has been discussed and mapped out again subject to discussions between the Trust, effected Landowners and South West Water, the biggest hold up is the need for money to make this happen.

• Road has been built on the formation between Hunnacott and Narracott for about half a mile

Again a drop of 60 meters is required from the top+10m from the top of Reservior back to this trackbed level. Civil engineering suggestions have yet to be looked at in any seriousness and or costed yet.

• Lancey Brook viaduct. Probably easier than the aforementioned road - but expensive

There has been a suggestion some time ago now that the then British Steel looked at rebuilding the metal part of Lancey Brooke as part of a community donation, I think it was something to do with the late Andrew Dow.

• Reinstating two bridges over the Yeo and purchasing the Collard Bridge Scout camp, or otherwise carrying out a deviation.

The area around the scout camp has a few problems in so much that NDC would not let us go under the A39 at this point (there is a long history about this crossing) but they would entertain a possible over bridge, which would mean another deviation and more civil engineering work to be worked out.

• Reinstating another bridge over the Yeo

The current thinking is it will be almost next to impossible to get back into Barnstaple on the old trackbed, after all this time due to building work and landowners not willing to give up any valuable land. Alternative routes are always being considered.

The other problem is that it is not viable to stop the railway at Snapper due to not having a car park and other passenger requirements, so one suggestion is to get the railway to Chelfham and then rebuild the railway between Barnstaple and Chelfham in one go. Building the railway between Chelfham and Snapper should be very reasonable civil engineering wise, the problems would only start between Snapper to Barnstaple.

• Barnstaple station side

Would be great to get back there, but the build up of new housing and other developments would make this part of the project impossible.

• Other land owners unwilling to sell.

Landowners will have their reasons for not selling any land, but once we are seen as a creditable organisation than knows how to get the job done, I think things will change for the better.

 

I appreciate that almost nobody on this thread is legally qualified to answer this, but my understanding is that the Trust sought legal advice regarding the legality of the S73 application, and received advice contradicting that received by ENPA. If that was the case, then why did they sit on that advice until the planning applications lapsed, rather than taking it to ENPA at the earliest opportunity - or did they?

 

An amended S73 was submitted in December 2022. (Newsletter 79).

 

My understanding is that a TWAO is not required for the extension. I don't think if follows that sucess in an application to Cricket Field Lane would mean success in an application to Parracombe. Discussions will be held with the Planning Authority to get pre-application advice which hopefully will lead to success.

 

My understanding is that they did and this led to an amendment to the application.

 

Taken from the document attached to Annes email.
The approved plans do not show Parracombe Halt functioning as a
terminus. Indeed, the 16 January 2018 additional information stated
expressly that Parracombe Halt cannot function as a terminus and the
applicant said it was happy to undertake that it would not happen. As for
phasing, the applicant expressed itself content that suitable conditions be
applied to ensure that the scheme as a whole is delivered in an orderly
fashion obviating the risk of piecemeal development. A Grampian condition
was imposed in consequence.
5. In short, insofar as is relevant to this Opinion, the Parent Permission was
for development which did not include Parracombe Halt as a terminus or
phased (aka staged) development.
6. A section 73 application cannot be used to obtain a varied description of
development (Finney v Welsh Ministers [2020] PTSR 455) or to obtain a

3
new planning permission subject to conditions which would fundamentally
alter the proposal put forward in the original planning application (R v
Coventry CC, ex p Arrowcroft Group plc [2001] PLCR 7).
7. The extant section 73 application does seek to obtain planning permission
for a varied description of development, in that it seeks to obtain planning
permission for development which does include Parracombe Halt as a
terminus (for approximately four years, if the subsequent stages are
completed). Moreover, it seeks to obtain planning permission for
development which would be staged whereas (by consent) the Parent
Permission is subject to a condition which seeks to ensure satisfactory and
comprehensive development. It is clear to me that the proposed conditions
would, if imposed, fundamentally alter the proposal put forward in the
original planning application.

A couple of definitions.

What is the difference between a train stop station and train terminal?
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As the word terminal or terminus means, where the trains terminate, that is, where the train do not go further. The trains can enter and leave in one direction only. A station, without being a terminus, is where the trains go further from the station in two or more directions.

What is a halt in railway?
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A railway station with minimal facilities where trains will usually stop only on request.

I think its all self explanatory, surely one cannot be the other and i think this is the point that is being missed

 

I'm not sure how any conclusions can be drawn when you only have one of the opinions involved at the time. It appears our counsel disagreed.

I don't know the content of that counsel as I don't have privilege, but if one looks at the main issues raised which are essentually, scope of using S73 for Non-Material Amendments, Fundametal Amendments and Operative/Descriptive changes then this is interesting reading.
Armstrong vs Secretary of State, Jan 2023.
https://www.bailii.org/ew/cases/EWHC/Admin/2023/176.html

As noted many were taking the Planning Practice Guidance as the law, which it isn't, the statutes are the law, and there is a conflict of wording between the two which has caused many problems and indeed even hesitancy in the progress of applications. This has now been mostly cleared up with the findings of Armstrong vs Sos, Jan 23.

Obviously the ENPA set their position, and we had counsel which disagreed, thus followed a period of legal negotiations between the two resulting in an amended S73 application in December which was validated and accepted, of which there would I expect have been a short pre-application consultation between ENPA and the L&B addressing the issues raised, chiefly I suspect surrounding the operative/descriptive part of the application.

It has to be noted here that the original S73 was submitted to the ENPA with no indication that anything was amiss, it was validated and accepted and after a fairly lengthy pre-application consultation period into the previous year.

Feb 2023
https://www.dhaplanning.co.uk/knowl...practice-misguidance-where-do-we-go-from-here

Mar 2023
https://www.footanstey.com/our-insi...n-73-applications-wider-than-you-might-think/

All clear as mud but now somewhat clearer than it was but in isolation the revealing of the opinion in the email and without context or further chronological information in my view means very little.

As I've said before the above problems have been recognised by the govt and being addressed in the Lords with the proposal of a Section 73b which should provide a wider scope and clearer wording, hopefully.

 

Yet IIRC there was a Welsh branch line - worked by push-pull trains - where the terminus was indeed a 'Halt'

 

The exact status of the ENPA's opinion is unclear, but it's worth note that ENPA sought it following receipt of an opinion by objectors, following the pre-application process. Accepting that these were based on case law as it stood in 2022, and that proposed legislative changes have yet to reach the statute book, I tend to consider the advice followed by ENPA as quite persuasive as to how any application might be received. With that history behind the L&B, I would personally be very cautious about assuming a more favourable outcome at the level of discussion that can be had here.

 

My understanding is that a TWAO is required for any railway that crosses a public right of way, so will be needed to pass under Killington Road. We could probably build the bridge without it, (if we had just PP) but not use it

 

Absolutely agree, the whole lot is best left to the legal and professional teams involved, the above is what I have found out by just nosing into the planning laws and what's in the public domain, and what's there isn't anywhere near all of it. It's damn complex and the folks dealing with it all are very welcome to it lol
My personal opinion, for what it's worth, is that it's difficult to apportion blame to anywhere in particular (And indeed I don't really have the power to make that judgement anyway).
But, none of it will be resolved here at all.

 

That is my understanding also re a TWAO and of course there is more than one road under-bridge between KL and PE anyway.

However what does seem to be unclear is whether 'crossing' a public right-of-way includes going under one, rather than across it on the level or over it on bridge. I've asked several sources and no-one seems to know for certain, so it would be very helpful if the Trust could explain how/why they think no TWAO is required to operate a railway to PE.

 

Argh anyway, all that planing stuff and so on is not easy to discuss with legal privilege involved and confusing statutes etc etc etc.
Let the professionals deal with all that I think lol

Onto more enjoyable things..

125 years this year since the railway opened, in that time the world has seen huge changes, an interesting one is in the discussion on another thread about door handles of carriages.
What changes of note would you all say have been marked, or important between then and now, the experience of travellers, and the staff, the service and so on.
Obviously the attire of the day was completely different, manners I think too.
What's your thoughts?

 

Well, I'm not sure if the weather has improved much, let alone the price of tickets, and of course the journey has got a lot shorter (temporarily)

 

Not sure about the weather, we don't have smog now as they had back then, but I think some are now wondering if we have cleaned up the atmosphere a bit too much according to a BBC article I read and allowing too much sunlight to reach the ground hence the heatwave in Spain!
Need a few smoke particles up there perhaps

 

Yes, but having obtained it and paid for it (over £150K was spent on legal fees in 2022, although probably not all on this issue), why didn't the Trust use their own counsel's opinion to counter ENPA's counsel's opinion when they resubmitted the Section 73?

Without seeing this document, we have no idea if the advice given agrees with the Trust's expectations. As the Trust has not used it or publicised it in any way, my assumption ( and yes, I know what Ass-u-me means!) is still that submitting it would not have been useful - otherwise, why not?

Maybe the Trust could alleviate any speculation on this by at least releasing those parts related to the S73 aspect. I'm not a lawyer, but I do know that legal privilege hinges on the counsel not to release it - not the client, who is at liberty to do so.

 

We don't know that they didn't. And, even if they did, it would have been entirely open to ENPA to say "we stand by the advice we have received" at which point, with the clock ticking, there would have been little choice.

In my view, the interesting question would be the degree to which the advice on which the application was first submitted considered the points raised by the legal opinions from the objectors and ENPA, and how much the railway took a considered risk in proceeding regardless.

 

Hmm, I have no doubt they did use their own counsel and I expect there were various communications back and forth between all the parties. The ONLY documents which have had seen are the ones with the privilege waived in the email.

I don't think what is understood is that every party and their counsel will have a rapport, built on trust, good nature, privacy and confidence.
The Trust may well have the option to make certain documents public, but they won't if it compromises that relationship with their counsel, especially if they have been advised to preserve privilege.
This is business, it's management level stuff, it's legal stuff, and it's best if they are left to do that business without hindrance and calls to perhaps break confidence with their counsel.

 

Agree totally. And of course - the documents may contain information relevant to future planning negotiations and submissions which should be kept quiet.