By Nathaniel Lichfield in association with S J Berwin Solicitors for the Office of the Deputy Prime Minister, September 2003.

Note: the emphases in the excerpts below are ours.

15.8 Network Rail considers Part 11 only applies to itself (for railway works) as the inheritor of the original railway legislation but that it should also apply to railway operating companies. This undertaker currently exercises rights under Part 11 (as well as Part 17) up to one thousand times annually, expects to use them more frequently for major line upgrades and considers them essential. However, other railway related organisations generally considered this section too vague and difficult for local authorities to interpret, considering that improved guidance is needed on it. They indicated cases of resistance by local authorities to accepting that 19th century legislation can enable works and often delaying urgent works by requiring a Lawful Development Certificate to confirm this.

21.16 Railway undertakers typically use permitted development rights for new buildings, building refurbishments, infrastructure changes, installation of equipment and retail facilities within stations. They also make use of Part 11 of the GPDO for works not covered by Part 17. As an example, Network Rail exercises Part 17 and Part 11 rights up to 1,000 times annually.

Operational railway telecommunication masts

Concerns have been raised by some local planning authorities that there is no height limit on the telecommunication masts that can be erected by railway undertakers on operational railway land for operational safety reasons under Part 17 A of the GPDO, without any formal control or prior notification. This is in contrast to masts erected by telecom companies under Part 24 of the GPDO, which are subject to a height restriction of 15m and prior approval on siting and appearance.

Network Rail is currently rolling out a national network of some 2,000 new masts, in order to upgrade the current train communication and safety system, which will soon be obsolete and will not meet railway safety standards. Network Rail benefits from permitted development rights to erect these masts on operational railway land. The height of the new masts will vary from location to location, but will be at least 4-5 Km apart and the majority of new masts are expected to be 30m, some of which could be installed on embankments, further adding to their perceived height [ as is the case with the proposed New Mill mast]. The installation of lower masts would require more mast locations sited closer together and may not always be technically feasible, given local topography and the need for a short maximum distance between masts for trains to pick up signals travelling at high speeds. However, given the extent of the national rail network, it is considered that there is potential for significant visual impact, particularly on sensitive landscape areas such as Conservation Areas, Areas of Outstanding Natural Beauty and National Parks.

While this appears to be a very limited problem at present, with only one local authority reporting a problem, it is likely to become more important as Network Rail plans to install 2,000 masts in 2003/2004. The authority reporting an impact, South Shropshire District Council, was concerned about the visual impact, without scope for control, of a proposed 30m high mast close to the historic town centre and Conservation Area of Ludlow. An Article 4 direction was confirmed to remove Part 17 A permitted development rights from the most sensitive parts of operational railway land in the town and Network Rail found an alternative location. Clearly, in this case, the local authority was able to use the current GPDO controls to influence the location of the mast, although the Article 4 direction route was seen as a 'last resort' by the authority and involved significant time and costs. Its use was only possible as the undertaker notified the local authority of the proposal, although it was not required to do so.

An alternative control for local authorities would be to require an Environmental Impact Assessment, which would remove permitted development rights and require the submission of a planning application. This would require no change to the GPDO but the process of assessing whether a single mast has 'significant environmental effects' is open to significant interpretation and this would not give local authorities certainty.

Conclusions

Given the fact that some 2,000 new masts are planned across the UK, some of which will be in sensitive landscape areas and could be 30 metres high with potential for material impacts, the most targeted approach would be, within these sensitive Article 1(5) areas only, to subject the masts to a height restriction of 15m (as applies to masts under Part 24) with a prior approval requirement relating to colour and siting. There is also a case for applying a 15 m height limit outside sensitive areas, for both consistency and impact reasons, but this would need to be balanced against national rail safety objectives, and the delays to this important rail safety aim which could result. The main benefits of this change would be in the improved control over potential high visual impacts in the most sensitive areas. The cost implications would be more planning and prior approval applications over a finite period, but probably not large numbers for any one authority, and this would be offset by less need to utilise time consuming Article 4 Directions. For users and consumers, there may be delays to the rail safety upgrading programme, but the railway undertaker had intended to notify planning authorities on every mast in any event and is also notifying the CAA, partly offsetting the work involved from a prior approval requirement. While there is also a risk that the height limitation could simply result in more but lower masts, the prior approval requirement will provide some control over impacts in more sensitive areas.