-------- Original Message --------
Date: Thu, 17 Mar 2011 14:47:52 +0000
From: Roger Lovejoy
To: Peter.Phillips@cornwall.gov.uk, eric.pickles@communities.gsi.gov.uk
Subject:Network Rail and Part 17 of GPDO

Dear Mr Peter Phillips

Further to my initial email regarding Network Rail's use of the GPDO to bypass public concerns over the erection of communications masts.

Since my hurried email of 7th March, I have investigated the issue further and would like you to consider the following.

1. In a query to West Devon Council, Network Rail asked if they could use Part 17 to erect a mast and they were told they could.

1. This implies that they did not take it for granted that they had permitted development rights, which is curious as they have erected masts in other parts of the UK. More likely they were trying to get a stretched small public service to support their plans without looking too deeply at the regulation, thereby mitigating future criticism.
2. However subsequently West Devon Council did issue an Article 4 notification, so that planning permission had to be sought as to the sitting of a mast near Totnes Castle.
3. This means that no compensation was paid as permission was granted, albeit at a different location.
4. Network Rail subsequently are carrying on works at Bere Ferrers and Bere Alston with the therefore seeming approval of West Devon. This is in the process of being challenged by the local Group TRAM (Tamar Residents Against Masts)

2. Network Rail state, in an email to me, as well as in other places, they are mandated by EU legislation to carry out the work. This is false representation and can only help to to hide their misuse of Part 17

1. The mandate calls for better integration of rail systems but specifically the Gunnislake, Looe and Falmouth lines are excluded.
2. The legislation does not exempt the railway vehicles where they also are used on main network. But the 'infrastructure' of the above mentioned lines is exempt.
3. They use this lie of a mandate in as a requirement, but no such requirement exists for the above mentioned lines. So if Part 17 were appropriate for some development it certainly doesn't authorise operations that are not required.

3. Part 17 also clarifies that building of structures is limited to within railway stations.
A1 – Development is not permitted by Class A if it consists of, or includes:
(c) the construction or erection otherwise than wholly within a railway station ....
(ii) .... or other building or structure provided under transport legislation

1. This is akin to permitted development of other parts. For example there is a difference between permitted development for a house and its curtilage as there is to a railway station and operational land.
2. I have been told, and will investigate, that Network Rail have already erected a mast between Gunnislake and Calstock railway stations. I have also been told on numerous occasions, by your office, that you had no previous knowledge of Network Rail's current mast building and so I assume they were not given planning permission for this mast. I ask that you investigate this alleged development and should you find it has taken place, that you issue an enforcement notice, or at least require them to submit a retrograde application if you think they would be granted permission. It will at least bring them to the negotiating table by asking for proper planning permission.
   
   As I may have been intentionally or accidentally misinformed by your office would you please check to see if you have had any communication with network rail over their proposals to erect communications masts in Cornwall, and send me copies of anything that comes up.
3. Of course they may argue that the mast is under 15metre and benefits from part 24, allowing certain telecommunications development. In which case they are clearly aware of the smoke they are trying to create in the deception over their claim to be exempt via part 17
   
   Clearly part 17 was meant for additions and improvements to the railway infrastructure that were required for the movement of traffic. Railway lines, control of points via signalling and boarding and alighting places are necessary. Radio telecommunications may be of benefit to the administration of staff and for passenger information, but this is not a requirement for movement of traffic nor is it mandated as is claimed.

4. The logic of Network Rail's interpretation of Part 17 would rightfully extend to erecting any size structure for any purpose useful to further the business that pays them so well as being of benefit and therefore required. Why not wind generators some 200 - 300 feet tall to provide electricity. Maybe a small nuclear power station would be less obvious hidden in some woods off the track. There is no limit to the imagination that network rail managers could not put to use to enhance their importance and continuing employment by what is effectively a public service.

5. I do note that they are open to a Judicial Review as being a 'franchised' public service.

6. Clearly the proper course is for Net Rail to consult with local residents via an application for planning permission for an operation that is not required (mandated) for the movement of traffic, built out of bounds and of such a size and placement as to cause suffering to residents and no doubt have other ecological impacts. So far they show lack of regard to local residents and legislation. Such lack of integrity must surely be challenged at the earliest opportunity unless it is to become acceptable practice.

Again hoping for your support in a pre-emptive Art 4 notification that Part 17 cannot be used for erection of disproportionate structures, not required for the movement of traffic that are not wholly with the confines of a railway station.

The right to use a permitted development right where the intention is to extend beyond that in the first place, or to continue to do so once the right has been breached does not exist. i.e in the case where a person used permitted development rights to build an enclosure, when his intent was to dispose of rubbish. Permitted development rights are not to be used to circumvent other matters as the intent undermines the reasons the rights were established. There was no intention to give Railway Undertakers the rights to build structures of unrestrained dimensions for any selected benefit on any land without due planning approval.

Roger Lovejoy

Copied to Eric Pickles MP Minister for the Department of Communities and Local Government.

-----Original Message-----
From: Roger Lovejoy
Sent: 07 March 2011 10:31
To: Planning East
Subject: Network Rail and Part 17 of GPDO
Importance: High

Dear Mr Peter Phillips

I am concerned about Network Rail's exploitation of Part 17 of the GPDO to erect communications masts and would like you to issue an Article 4 notification to prohibit it's use for that purpose.

My arguments are that they are avoiding the proper course of using Part 24, which would require planning permission for masts over 15m.

Clearly when Part 17 was created, there was no vision of a proliferation of radio masts being part and parcel of the Railways Undertakings. And even if they were then it would have to have been within the parameters of being necessary for the actual railway. i.e. for remote signalling - not extended to chats between various ancillary works and passenger information etc and I am sure a maximum height would have been conditional.

Anyway we now have part 24, which was designed to encompass such masts as part of a communications friendly legislation.

Part 17 does not specifically include masts of an unknown size. Under Part 17 masts could be as big a Blackpool Tower. Clearly the legislation was not intended to give Network Rail a grant to erected structures of unlimited height.

Part 24 clearly deals with 'tall' structures such as masts, whilst at the same time addresses concerns that people have with the effects of non-ionising radiation.

I hope you will agree that the exploitation of Part 17 is an abuse of the GPDO and start appropriate proceedings to request the Secretary of State sanctions the Article 4

Should you consider there are better arguments not to proceed, including fear of compensation, then please inform me of them forthwith as this is an urgent matter locally. Regarding the compensation concern. This would only arise if Network Rail were to challenge their rights under part 17 to include 'a structure of any height', succeed and then be denied the proper permission - unlikely to arise.

I assume you are aware that your decision to refuse to issue is open to a Judicial Review.

I am sure you will shortly be receiving requests to issue enforcement notices regarding masts that have, or are already under construction in Gunnislake and Bere Alston as examples.

Yours sincerely

Roger Lovejoy