There are many loopholes within the telecommunications planning processes, these are all set out in the relevant topic heading briefings, in this briefing we look specifically at the effects of the new rail phone system, and potential challenges. To make it clear we are only dealing here with the internal Network Rail system, and not those installations by normal mast operators on Network Rail land, which still have to go through the normal planning procedures.

As a consequence of recent rail disasters and the subsequent inquiries Rail Track has started to role- out a new communication system right across the rail network. In doing this they are looking to capitalise on a piece of legislation that was clearly not intended for this purpose.

The Town & Country Planning (General permitted Development) Order 1995 is a standard piece of secondary legislation for those in the mast movement, which under Part 24 provides the process for 90% of all permissions, as well as many of the loopholes. However, for installations by Network Rail we are looking at Part 17 'A', a copy can be downloaded from:
http://www.legislation.hmso.gov.uk/si/si1995/Uksi_19950418_en_4.htm#IDAA4F3D

However, it is a very short passage so we set it out here for ease of reference:

Class A Railway or light railway undertakings

Permitted development
A. Development by railway undertakers on their operational land, required in connection with the movement of traffic by rail. Development not permitted

A.1 Development is not permitted by Class A if it consists of or includes-

1. the construction of a railway,
2. the construction or erection of a hotel, railway station or bridge, or
3. the construction or erection otherwise than wholly within a railway station of-
1. an office, residential or educational building, or a building used for an industrial process, or
2. a car park, shop, restaurant, garage, petrol filling station or other building or structure provided under transport legislation.

Interpretation of Class A
A.2 For the purposes of Class A, references to the construction or erection of any building or structure include references to the reconstruction or alteration of a building or structure where its design or external appearance would be materially affected.

The important words are 'on their operational land, required in connection with the movement of traffic by rail'. Clearly the installation must not simply be on land owned by Rail Track, but must be on operational land, that is land that is actually used for the rail network, much railway land is let or leased to others, and other parts are dormant, therefore we would classify this as land within the boundary of the present rail network (which is normally fenced against public access).

From the wording of A.1(c) and A.2 it is clear that these installations cannot be put on outside of existing buildings, or structures, which I would take to include such equipment as power cable gantries. Therefore, all installations would require new purpose made masts, or placing of the antenna inside of existing buildings, or structures.

Now is it lawful, on the face of the wording of Part 17 then yes, however, the average installations is around 33m high. If installations of that height came within Part 24 then they would require full planning permission, as they are clearly over the maximum 15 metres for a ground based mast.

But as we see it there are two potential routes of challenge, the first is a straight argument, is he system going to be used solely in connection with the movement of rail traffic. If not then this process is not open to this type of installation. So we need to analyse what use could a telecommunication system be used in connection with the movement of rail traffic. Clearly, maintenance crew, drivers, guards, signalling staff and other controllers might come within this definition. But what about stewards, they are about service of passengers not the movement of rail stock, what of station porters, cleaners, security, British Transport Police none of these could be said to be in connection with the movement of rail traffic, albeit they might be connected to controlling passengers, or serving the needs of the passengers, they contribute nothing to the movement of rail traffic.

So you might argue, what are Rail Track to have two separate communication systems, of course not that would be a nonsense. What we are talking about here is not whether there should be a new communication system, but whether Rail Track can have a special status that allows them to by pass all controls on the installation of telecommunication apparatus. Our case is based upon them being subject to the same restrictions as other telecommunication system operators. We illustrate this from conflicts within other sections of the GPDO, Part 24 is a clear example, although Part 24 is intended solely for use by Code System Operators, Rail Track does not come within that remit. But Part 24 is clearly intended to exercise some control over the size and siting of installations, whereas if Rail Track goes ahead with their plans then there will be no control.

Our arguments on this point is that Rail Track using this process cannot use the system for any purpose other than in the aid of the movement of rail traffic. One other use would make the permission invalid. Rail Track in their report - Supplementary Information to the 2000 NMS state at page 21:

"Railtrack's Fixed Telecom network was installed piecemeal as part of BR's electrification and signalling projects between 1960 and 1993. Because the requirements were based around individual project needs, technology types vary across and within zones. Fault reporting is localised and system failure is generally uncovered only as a consequence of a customer complaint.

Railtrack will replace this ageing network in modern form to provide a single fault tolerant network with centralised performance and maintenance management.

The network will be required to provide essential circuits for signalling, electrification, radio and customer information systems, as well as for more general business needs".

Since our campaign against these installations being installed without any local planning permission, the Rail Track Regulators WEB site has removed the document that sets out the proposals, however Planning Sanity has a copy of the document which can be supplied on request.

From this it will be seen particularly from the last paragraph that the system will be used for all Rail Networks needs, therefore the approvals cannot in our view be approved through the process set out in GPDO Part 17.

There is also Part 25, this is potentially more interesting, however at the time of writing this briefing we are still not sure exactly what system of communications, or the frequencies that Rail Track are to use. Part 25 'A' refers to 'microwave antennas'. In all reality the system that Rail Track will be using will be some form of microwave system.

GPDO - Part 25
http://www.legislation.hmso.gov.uk/si/si1995/Uksi_19950418_en_4.htm#IDAQCJ3D

Permitted development

Development not permitted

Conditions

A.2 Development is permitted by Class A subject to the following conditions-

If Rail tracks system is a microwave system them they would fall within the remit of this Part, even if they are also covered by Part 17, there would then clearly be a conflict between the two systems, and as Part 17 is clearly not intended to be specifically for a telecommunication system, then we argue that Part 25 should prevail. We come to this view because within Part 25 there are specific exclusions that relate to other types of radio telecommunications, namely those set out in Part 24 and those covered by Section 8(6) of the Road Traffic (Driver Licensing and Information Systems) Act 1989. Clearly if Parliament had intended other systems to be excluded then they would have been set out in this Part. Therefore we conclude that if Part 24 does not apply then Part 25 clearly does. Which means that all installations over 15 metres would require full planning permission. Although we would still have the problem of installations under 15 metres.

Which brings us onto the next point that of Human Rights. Article 6.1 of the European Convention on Human Rights and Fundamental Principles (ECHR). Our Human Rights Forum has copies of the relevant documents and a general briefing on human rights.

In this specific aspect we would argue that your right to make a comment on the decision to grant permission (Part 17 is effectively the grant of planning permission) has been denied to the public, due to the special provisions contained within Part 17 of the GPDO. Therefore, Part 17 in as far as it might (but that we do not admit that it does) affect telecommunication installations is not compatible with the Convention Rights granted under Article 6.1. However, the local planning authority cannot take that into account to force an application to be made, such forcing would have to come from the courts.

None of this will get any of these applications before a planning committee for proper determination until they have first gone to court and the courts have determined the legal position. This can be achieved in two ways, the first is to persuade the local authority to take enforcement action on the basis that the installation comes under the remit of Part 24 and not Part 17. Or that a member of the public, seeks a declaration from the High Court as to the compatibility of Part 17 with Article 6.1 of the ECHR.

Those affected the installations therefore need to lobby their local authorities to take enforcement action (standard letter), as well as lobbying Lord Rooker the Planning Minister, details below. Or if any local communities want to take legal action and they are eligible for Legal Aid (see our briefing on legal aid) then if they contact us we shall look at how best we can help.

Overall we are looking at how we can bring about changes in the legislation to bring all telecommunication installations that are approved using one of the many loopholes brought into the full planning process, this is a high priority for Planning Sanity in 2004, we therefore need details of all installations installed under any loophole provision.

The Government are proposing to update the General Permitted Development Order, in particular they are looking to make some changes to take some phone masts clearly out of the equation. The provisions are to make those installations over 15 metres that are in sensitive areas such as conservation areas subject to full planning permission. Planning Sanity have mixed views on these proposals, whilst at first look they appear to be a move in the right direction, however, they mean that if approved it will legitimise the vast majority of masts being installed without any local planning permission. We are therefore on balance opposed to the provisions, and will be looking to raise these at our next meeting with the Planning Minister

The propsed update of the GPDO can be found at http://www.odpm.gov.uk/stellent/groups/odpm_planning/documents/page/odpm_plan_023856.pdf. The reference to Netrail is on page 152 paragraph 21.79 of the document.

Contacts & Information

Tel: 020 7944 3012
Fax: 020 7944 4489
Email: keith.hill@odpm.gsi.gov.uk

Network Rail
125 House
1 Gloucester Street
Swindon
Wiltshire SN1 1GW

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