Dear Mr Lovejoy

I write further to my acknowledgement of your email below.  I also
acknowledge receipt of your email received today on the same matter.  I
would comment on both emails as follows.

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). 

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'.

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. 

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permissions are being withdrawn.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.  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 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.  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.

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.

I will shortly be writing to Calstock Parish Council in connection with
concerns they have with regard to a Network Rail mast in their area.

I have attached a copy of a letter dated 7 October 2010 from Network
Rail.  This provides information on their mast proposals in respect of
the former Caradon area.  I would respectfully suggest you may wish to
submit to the Council a Freedom of Information request for other mast
proposals within the County.

I trust the above information is helpful.

Yours sincerely  

Peter Phillips 
Development Management Group Leader (East 2) 
Planning & Regeneration Service 
Tel. no. 01579 341425 
Fax no. 01579 341426