Thursday, 8 November 2012
Permitted development by statutory undertakers
There are some 40 parts to the Second Schedule of the General Permitted Development Order, covering a wide variety of operational development. For example, Part 17 allows organisations such as railway operators, and other transport undertakings, as well as electricity, gas and water companies (among others) to carry out certain works on their operational land. However, this does not give these organisations carte blanche to carry out whatever development they like.
A correspondent has recently drawn my attention to a contentious case in East Grinstead, where the local railway company proposes to add a deck to the station car park, increasing its capacity to 300 cars. The car park currently accommodates 200 cars, and local residents say that cars go in and out via the access road at dangerously high speeds. They are concerned about safety not only on the approach road but on the local highway network, and especially at the junction with the main road, a factor which would clearly be a material consideration in the determination of a planning application. The access road to the car park is also crossed by a public footpath, and this is already considered to be a dangerous crossing place.
However, the railway company claims that the enlargement of the car park is permitted development under Part 17 of the GPDO, and it seems the LPA is prepared to accept this, much to the frustration of local residents, who fear for their safety if the development goes ahead. My correspondent asked me whether this is right.
What Part 17 permits (in Class A) is development by railway undertakers on their operational land, required in connection with the movement of traffic by rail, but such development is not permitted if it consists of or includes the construction or erection otherwise than wholly within a railway station of [among other things] a car park......provided under transport legislation. This poses several problems. I understand that the car park is in fact some distance from the station itself, and so even if it is on “operational land”, there must be some considerable doubt as to whether it is “wholly within a railway station”. One might also question whether the provision of a car park is “required in connection with the movement of traffic by rail”, although a generous interpretation of these words might perhaps include such ancillary facilities.
The precise extent of a railway station is not easily defined, particularly as regards the area ‘outside’ the station and there is widespread uncertainty regarding the interpretation of Part 17. There has in fact been considerable dispute as to whether permitted development rights apply to the entire uncovered station area, such as its forecourt, transport interchange area and car parks. This problem was recognised in the 2003 Review of the GDPO carried out by Nathaniel Lichfield and Partners, but the government has taken no steps to amend Part 17 so as to clarify the situation. On the other hand, there are a couple of reported enforcement notice appeal decisions which seem to indicate a restrictive interpretation of Part 17 by inspectors and by the Secretary of State. For these reasons, my provisional view (on the basis of the recited facts) is that this particular development does not come within the scope of Part 17, and so it needs express planning permission.
The problem now is to convince the LPA that they got it wrong when they told the railway company that the work to add an extra deck to the car park is permitted development. I have not been told whether an LDC was issued; if it was, then getting this revoked might be difficult. But if the LPA simply expressed an informal view on this point, they may still be persuaded to reconsider the matter. No doubt the local residents will be writing to the council and lobbying their local councillors in an effort to persuade the council that a planning application is required for this development, which can then be the subject of the usual consultations, giving the public the right to comment on the proposal.
I don’t know whether the good citizens of East Grinstead are as vociferous as the famously disgusted residents of Tunbridge Wells; but if they are, then the LPA could conceivably find themselves in the High Court if they can’t be persuaded to change their mind on this issue and to insist on a planning application being submitted for the car park development. The appeal decisions mentioned above appear to offer an encouraging precedent if the LPA decides to take enforcement action in the absence of planning permission being sought and granted.
© MARTIN H GOODALL