Where is the planning approval?

(Updated 11 May 2020)

We are advocating that GTR and Network Rail apply for a Certificate of Lawful Development or other planning approval process. Residents and the community are being denied a transparent planning process. When an industrial facility is being situated in a residential area, the burden should be on the developer to demonstrate the decision-making process and the effect of the development on the community. The community should not have to wait until a facility is developed to find out its effects. Furthermore, this development is paid for with taxpayer money — our money and your money — taxpayer money should not be risked on development that has not undergone a fully transparent planning process.

Update: Legal position

We have received independent legal advice that there is justification for Network Rail to apply for Certificate of Lawful Development. The advice enlarges upon the position below for the definition of “industrial process” and the definition of “building”. Network Rail and GTR continue to argue that this is permitted development with no further process required – side-stepping residents’ concerns about transparency and oversight. We are currently waiting on the Cambridge City Council, who are briefing their own legal team on this issue, to respond.


Timing

  • On the basis of a request from residents, on February 14 the Cambridge City Council asked GTR to submit an application for a Certificate of Lawful Development. At the community meeting on February 24, Steve Lammin, GTR’s Engineering Director, claimed that “Govia Thameslink Railway is not directly involved in the planning application process. Planning application responsibility sits with Network Rail.” Lammin also claimed that GTR was pushing Network Rail for a response and “hoped” that it would be available in the week of February 24, but this did not happen.
  • Update On 06 March 2020 Chris Penn, GTR’s Stakeholder Manager, sent the campaign an email update letter. This had two parts. First, it copied in Network Rail response to the council. Network Rail declined the Cambridge City Council’s request to apply for a Certificate for Lawful Development because it believes that a railway depot for cleaning trains does not involve the industrial process of cleaning. Network Rail are declined on the basis of setting a precedent that more of their projects might need to be transparent. The second half of the letter provided some limited further details on the train planning, and promises to provide more.

We also note that Network Rail has not attended any community consultation event and made its own case. If GTR does not have responsibility for the planning approval, it is risking should pause all work until Network Rail demonstrates that the development is lawful.

Planning approvals

There are two relevant planning approvals, neither of which address the scale of the industrial facility, or the visual, noise, or chemical effects of the facility. And only one of which, the first, is available online.

18/1372/CAP18

18/1372/CAP18 confines itself to the alterations to the Mill Road Bridge – enlarging the arches and adding a set of steps. It notes in the title that one of the reasons is “to facilitate new sidings”.

The application does not provide a comprehensive plan for the industrial scale train wash facility. In the letter dated 15 August 2018 from Steve Taylor to Planning Services at the Cambridge City Council, the proposed carriage wash is mentioned twice in Schedule 1 as the reason for the need for the alterations, but no further details are provided in writing or in the drawings and photographs in Schedule 2.

This detail would have provided context for the application that might have impacted the City Council’s decision based on injury to the amenity of the neighbourhood, a critical part of the GDPO 2015.

18/5161PREAPP

18/5161PREAPP is a notice of the development, with much the same planning material — or lack thereof — included in 18/1372/CAP18. 18/5161PREAPP proposes that the trainwash falls under Schedule 2 Part 8 Class A of the GDPO 2015.

This application relies entirely on the first class about permitted development, which we excerpt below:

“A. Development by railway undertakers on their operational land, required in connection with the movement of traffic by rail.”

This application does not address the section immediately after the above, development not permitted, which we excerpt below:

“A.1 (c)(i) “the construction or erection otherwise than wholly within a railway station of – (i) …a building used for an industrial process…”.

So what is an “industrial process”? The GDPO defines it as “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….”

At the community meeting on February 24, Steve Lammin, GTR’s Engineering Director, claimed that this facility is a “plant” but could not provide a response to the above industrial definition.

“Development not permitted” does not mean that the trainwash will not be built. It means that it cannot be built without a certificate of lawful development and the associated fully transparent planning process. This is what the community wants.

We also note that Local Planning Authorities can not refuse permission or require conditions unless there is threat to the amenity of the community.

We contend that this facility is for an industrial process and does propose a threat to the amenity of the community.

On 06 March 2020, Chris Penn forwarded Network Rail’s response to the issues above. The whole respones is below but here are the two sections that we dispute and are asking the Cambridge City Council to respond to:

1. Permitted Development and the definition of “industrial”

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.  

As we have pointed out repeatedly the definition of industrial in the GDPO 2015 is (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….”

Network Rail’s own description would appear to meet the definition. To argue otherwise defies logic.

2. The precedent of applying for a Certificate of Lawful Development

Network Rail say:

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.

The UK public should want such a precedent set when an industrial facility is being situated in a residential area. It is very clear that the law needs to change for precisely this kind of situation. The burden should be on the developer to demonstrate the decision-making process and the effect of the development on the community. The community should not have to wait until a facility is developed to find out its effects.

Full response from Network Rail on 06 March 2020

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. 

Proposed Works

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.

Permitted Development

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.

We will respond further to this when the Cambridge City Council has responded.

Parties

Commercial

  • DfT – Funding the project, which is part of the Thameslink & Anglia programs.
  • Network Rail – Owner of all railway assets.
  • Greater Anglia – Manage the Cambridge Depot.
  • GTR – Delivering and managing the project on behalf of Network Rail.
  • Spencer Group – Principle Contractor to GTR.
  • SNC Lavalin – Principle Designer for works.

Government

  • The Cambridge City Council is the Local Planning Authority.

Residents and community

  • Residents of Great Eastern Street and the Romsey and Petersfield community are affected by the proposed development and this is our community website.