Network Rail declines to apply for a Certificate of Lawful Development by denying the definition of industrial process
On 06 March 2020, Chris Penn, GTR’s Stakeholder Manager, sent our campaign an email update. Among other issues, it copied in Network Rail’s declination of the Cambridge City Council’s request to apply for a Certificate for Lawful Development. A Certificate of Lawful Development would provide full transparency about the choice of location and effects on the amenity of the community of the trainwash.
One part of our campaign is to argue that an industrial facility does not belong in a residential area. This brings up the question of what is an industrial process, and whether a trainwash is an industrial process.
The relevant definition of an industrial process is in the The Town and Country Planning (General Permitted
Development) (England) Order 2015. Schedule 2 Part 8 says (emphasis added):
“a process for or incidental to any of the following purposes … (b) the altering, repairing, maintaining, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article….”
In their 06 March 2020 response, Network Rail say (emphasis added):
As the proposed carriage wash is for the cleaning of trains within a railway depot, it is not considered that this represents an ‘industrial process’ and therefore does not meet the definition.
Network Rail’s own use of the term “cleaning” in this description is exactly one of the terms in the definition of “industrial process”.
On this point alone, Network Rail has finally introduced certainty where there was previously uncertainty – but contrary to their claim, this certainty is not in their favour. This facility is for cleaning and therefore is not permitted development and should require a Certificate of Lawful development.
To argue otherwise defies all logic.
We call on the Cambridge City Council to take this matter further in their response to Network Rail.
We call on GTR and Greater Anglia to halt all development until their partner Network Rail provides the Certificate of Lawful development. GTR and Greater Anglia are risking taxpayer money on a facility that could later be shut down.
Here is the full response from Network Rail on 06 March 2020
The following is excerpted from an email sent on 06 March 2020 by Chris Penn, GTR’s Stakeholder Manager. We are currently reviewing the full email and will publish it in full soon, but are happy to provide it upon request for press or other relevant interested parties. There are more issues than just the definition of “industrial process” in this section and indeed the whole email. We will respond further to this when the Cambridge City Council has responded.
Network Rail have sent the following to Greater Cambridge Planning in the response to the request for a Certificate of Lawful Development:
I write in respect of the works to provide Carriage Wash facilities to the east of Mill Road Cambridge, as shown in plan F535-GTR-DRG-CV-000081 Rev P01. The works is part of the wider Thameslink Project, which aims to upgrade and increase existing Depot facilities at Cambridge Depot.
I note that there have been a number of questions from local residents and other interested parties as to whether planning consent is required for the works. This email is to provide clarification on the nature of the works and confirmation of the utilisation of permitted development.
The proposed works consist of:
- Removal of existing life expired carriage wash plant and provision of a twin rotor side brush carriage wash including protective enclosure
- Provision of associated plant and machinery with water recycling facility including protective enclosure
- Provision of access road to maintain the Carriage Wash, plant and machinery
Refer to attached general arrangement drawing F535-GTR-DRG-CV-000081 Rev P01 for proposed overall site arrangements.
The works comprise a railway operational development for which Network Rail has statutory powers and planning permission is therefore granted by virtue of permitted development.
These works do not require planning permission and are permitted by virtue of Part 8 (Transport Related Development) and Part 18 (Miscellaneous Development; Class A – development under local or private Acts or Order) of the Town and Country Planning (General Permitted Development) Order 2015.
Part 8 relates to ‘A. Development by railway undertakers on their operational land, required in connection with the movement of traffic by rail’. The proposed works clearly represent works that are required in connection of the movement of traffic by rail, and are to be undertaken on railway operational land.
A.1 of Part 8 details where development is not permitted. Development is not permitted if it consists of ‘the construction or erection otherwise wholly within a railway station of – …a building used for an industrial process’. As the proposed carriage wash is for the cleaning of trains within a railway depot, it is not considered that this represents an ‘industrial process’ and therefore does not meet the definition. The proposed development does not fall into any of the categories listed within these exceptions and is therefore clearly permitted by Part 8.
In respect of Part 18, the works meet the definition of ‘A. Development authorised by— (a) a local or private Act of Parliament,’. Importantly, the proposed works do not meet the criteria set out within A.1 of Part 18, and an application for Prior Approval is not required.
The railway in this location was authorised by the Eastern Counties Railway (Brandon & Peterborough Extension) Act 1844. The subsequent Great Eastern Railway Act 1862 was to apply the Railways Clauses Consolidation Act 1845 (RCC Act 1845) general provisions to all of the Great Eastern Railway.
Section 16 of the RCC Act 1845 enlarges upon the works which may be carried out and this includes the power, stating ‘They may erect and construct such houses, warehouses, offices, and other buildings, yards, stations, wharfs, engines, machinery, apparatus and other works and conveniences as they think proper;’. A copy of Section 16 of the Act is attached for your information.
Based on the information above Network Rail is firmly of the view that the work is permitted development and no planning permission is required.
Certificate of Lawful Development
I understand that the question of whether a Certificate of Lawful Development (CLD) is required has been asked. Network Rail utilises permitted development on a daily basis to deliver much needed work required to operate the railway in a safe and efficient manner. The intention of permitted development is to allow for works to take place without needing to seek permission from the Local Planning Authority, and to allow for the works to take place without having to wait for the completion of the application process.
If Network Rail were to apply for a CLD for all work that is permitted development, or even a small proportion of work, it would result in significant additional cost, delay to projects and need for significant additional resource. Furthermore, it also sets a precedent whereby CLD applications may be requested by other Local Authorities. This is not something that Network Rail can commit to.
Given that the work is clearly permitted development it is considered that a Certificate of Lawful Development is unnecessary on this occasion.