Dear Mr Phillips
Please read my interspersions (green) in the following mail from you.

As you will see I am not inclined towards most of your arguments and would like your second opinion on my responses. I am sure we can agree on some. :)

Dear Mr Lovejoy
....
The advice I have received from the Council's legal team concludes that the mast is properly dealt with by Part 17 of the GPDO. It is to be noted that telecoms code system operators (specifically mentioned in Class 24) are not within the definition of 'statutory undertaker' covered by Article 17, and so it can be said that classes 17 and 24 are mutually exclusive. The legislature has decided to apply different rights to statutory undertakers (Class 17) from those applying to telecoms code system operators (Class 24).

That one is not within the other is no reason that they are mutually exclusive.

For example Part 2 which allows the creation of a wall to enclose land may be used by a Network Rail to create a structure to enclose land that is not "required in connection with the movement of traffic by rail". Do you think that it is also mutually excluded and they couldn't exploit that. No! Multiple parts may be exploited by anyone.

Even if you were correct, I was not discussing the relationship between parts of the legislation but the fit of development to any part.

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The words 'required in connection with the movement of traffic by rail' referred to in Part 17 are considered to include the masts because signalling, although not literally in itself movement, is clearly ancillary to that. This view is supported by the fact that Article 4(4) which deals with the applicability of Article 4 Directions to the permitted development rights of statutory undertakers, mentions the inclusion of 'signalboxes, signalling apparatus and other appliances and works required in connection with the movement of traffic by rail'.

Here is where abuse begins:

NR Have already stated that part of the purpose is for passenger info. Passenger info is not a part of the requirement for the movement of traffic and if their intention in the first place is to go beyond the permitted development then you should issue an Art 4 on those grounds alone. (See Miller-Mead (1977) JPL 104

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It is therefore not an abuse of the system, as you allege, for Network Rail to rely on Class 17. Although expected under Circular 9/95, Appendix B, para.8, to consult with the Council and the general public, they are, in the absence of an Article 4 Direction, entitled to carry out their proposed development.

Well as I stated in the preceding paragraph, I disagree and as to the consultation:

Whereas the Council has know about this proposed development for 8 years, local residents have only just been notified. This is not a consultation.

As 'you' have know for so long it would seem reasonable to stop NR's proposal so that the consultation can happen as specified.

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This leaves the question of whether the Council should use its powers to make an Article 4 Direction. Such Direction would, in the case of this type of proposed development, need to be specific as to which permissions are being withdrawn. There are a number of considerations for the Council should it wish to pursue the making of a Direction. However, it should be noted that the procedure cannot be applied retrospectively to development that has been either commenced or completed.

The permission to withdraw is:- the right to use Part 17 to erect structures that have substantial impact upon the environment without a full planning application so that a proper and public assessment can be made on the human and other environmental impact.

Once the development has commenced you can use various options including a Stop Notice and Enforcement Notice, and clearly the enforcement noticed on completion within 4 years.

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With regard to the Sandplace mast, my view is that work on the mast has been commenced by the construction of a concrete base and the erection of an equipment cabin. I consider, therefore, that the making of an Article 4 Direction would not prevent the erection of the Sandplace in its current position.

You are correct here, but you seem to avoid the option of a Stop Notice or Enforcement Notice. Why?

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You dispute that the mast is required, and assert that the EU Directive does not apply to this line and that the mast is not 'required' so as to come within Part 17 of the GPDO 1995. I have also taken legal advice on this matter and would disagree for the following two reasons.

Firstly, the Looe Valley line is physically connected at Liskeard with the main line, and is not isolated in the way that the Isle of Wight line has no physical connection with the rest of the railway network.

It is noted that the connection at Liskeard is not used by public passenger trains, but although through trains between Looe and Paris are most unlikely at any time in the future, it is physically possible to join up Looe with Europe on a through train via the Channel Tunnel.

There is freight traffic that goes over this connection and uses part of the Looe Valley line (admittedly not involving the section of line through Sandplace) to access a cement plant at Moorswater. It is therefore not correct to say that the Looe Valley line is totally self contained with no connection to the main rail network, and exemption from the EU requirement should not be assumed.

Secondly, even if it could be argued successfully that the EU Directive did not apply to this line, my view is that it is not necessary for the applicability of Class 17 for it to do so.

I agree with your last paragraph above: but NR are saying they have a mandate to dictate the proposal and hence avoid consultation. They do not so it is a relevant point.

As to the alleged mandate: 2008/57/EC,

• Signalling is either included or ancillary to the infrastructure
• The infrastructure is exempt under current proposals on Tamar Valley: St Budeaux - Gunnislake
• Albeit for the fact that the Tamar Valley infrastructure is exempt, communications for signalling would have been mandated.
• The traffic is not exempt for the reasons you allude to previously, "it is physically possible to join up Looe with Europe on a through train" So yes the train will have to fitted with the receiving devices as they may be used off the exempt network rail infrastructure

2008/57/EC,
pursuant to Article 1(3) of the Directive

This list was last updated: February 2010

Article 1(3)(b): networks (infrastructure) that are functionally separate from the rest of the rail system and intended only for the operation of local, urban or suburban passenger services and railway undertakings (and their vehicles) operating on such networks.

Article 1(3)(d): infrastructure and vehicles reserved for a strictly local use:

Infrastructure only:

* St Ives -- St Erth
* Looe Valley: Liskeard - Looe
* Tamar Valley: St Budeaux - Gunnislake

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If Network Rail consider this mast to be necessary for the safe operation of trains, they are the people responsible for railway safety and who should know. My view on this matter is that if Network Rail say it is necessary, then the Council should take them at their word.

I disagree. NR should be able to show, where there is concern that they are running roughshod over local concerns, that their concerns are founded on irrefutable facts sound figures and financial sensibility. As the council responsible for allowing the development you are liable and responsible to ensure all the facts are checked. Not just rely on their word. Who actually pays you? Not NR so why take their word for it?

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part 17 allows development by railway undertakers "on their operational land". The exclusions to which you refer relate to the specific forms of development listed in (i) and (ii). You will note that the lists do not include communications masts which, therefore, remain permitted development.

RE SKINNARD LANE, CALSTOCK

Development not permitted
   A.1Development is not permitted by Class A if it consists of or includes-
      (a)the construction of a railway,
      (b)the construction or erection of a hotel, railway station or bridge, or
      (c)the construction or erection otherwise than wholly within a railway station of-
         (i) an office, residential or educational building, or a building used for an industrial process, or
         (ii)a car park, shop, restaurant, garage, petrol filling station
              or other building or structure provided under transport legislation.

* Clearly the mast is a building
* it could be called a structure, for those who have a narrow view of what constitutes a building
* and if they wanted to use the mandate, well I'm sorry but even if it is provided under legislation even transport legislation it's not permitted

In this case an application should be submitted

Of course if they only wanted a mast under 15 they could use part 24. I assume they do have a telecommunications license and are therefore entitled.

So 1. as regards Skinnard lane, given my above arguments, I wonder if you are still inclined to see it as permitted and not issue an enforcement notice?

And 2. generally please let me know asap if the rest of my arguments do not persaude you to look at the exploitation of part 17 by NR

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Regarding comments made to Calstock Council

I would like to reiterate that the only consideration for compensation would be if NR are unable to carry out the operation after submitting a full planning application and they show some loss in not being able to develop.

My understanding is not that people are just opposed to a mast as such, but lack of consultation that may have assuaged locals concerns through negotiations, exactly what a planning application would do.

I now quote some comments you made directly to Calstock Parish

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Council would need to take into account the possible effect on railway operations of stopping Network Rail from putting up their mast. This could mean having to slow trains down over a section of line or possibly stopping trains altogether.

I assume you don't know the Tamar Valley line. It is a restricted slow line. One train up and then down. No need to slow it, no possibility of collisions etc.

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"There are exclusions relating to specific developments such as offices, dwellings and shops which are permitted only within a railway station, but these exclusions do not include masts."

This is not right. As I have said the legislation includes "other building or structure"

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Firstly, the Tamar Valley line is physically connected at Plymouth with the main line, and is not isolated in the way that, for example, the Isle of Wight line has no physical connection with the rest of the railway network. It is therefore not correct to say that the Tamar Valley line is totally self contained with no connection to the main rail network, and exemption from the EU requirement should not be assumed.

This is the wrong comparison. It is a separate category, and not an assumption. I repeat for convenience the relevant Article

2008/57/EC,
pursuant to Article 1(3) of the Directive

This list was last updated: February 2010

Article 1(3)(b): networks (infrastructure) that are functionally separate from the rest of the rail system and intended only for the operation of local, urban or suburban passenger services and railway undertakings (and their vehicles) operating on such networks.

Article 1(3)(d): infrastructure and vehicles reserved for a strictly local use:

Infrastructure only:

* St Ives -- St Erth
* Looe Valley: Liskeard - Looe
* Tamar Valley: St Budeaux - Gunnislake

Thank you very much for your efforts

All the best

Roger Lovejoy

Copies to:
Richard Hoile - Calstock Parish Council Chair
sheryll.murray.mp@parliament.uk