Advice to Network Rail
Back to listEnquiry
- From
- Network Rail
- Date advice given
- 16 December 2010
- Enquiry type
Whether works can be included in DCO application which are Permitted development and other associated queries with regard to works necessary to achieve electrification
Advice given
I need to begin by clarifying that the IPC cannot advise definitively on jurisdiction matters, as this would constitute legal advice on which an applicant could seek to rely, and so outside the terms of our indemnity. With this in mind I would encourage you to seek your own legal advice on this including, if you feel it is appropriate, seeking Counsels opinion.
In the light of this it is not possible to give the specific answers you seek in relation to the questions you raise however I will outline some points for you to consider in this process. I hope that the following can give you a clear steer on addressing the issues. I would also stress that these comments need to be applied to the specific parts of the project by your own legal advisers. The definition of a railway under the Planning Act 2008 referring to the Transport and Works Act definition means that an alteration could include electrification of a railway. However, development consent is not required unless the project includes development which is or forms part of an NSIP (s31). Please see also s55(3)(c) which provides that an application may be accepted if development consent is required for 'any of the development' to which the application relates. The NSIP is 'the alteration of the railway' under s25(2) i.e. the fact that elements are permitted development would not mean that they could not form part of the NSIP. If those elements could be shown to be 'integral to' the alteration of the railway they would not need to be considered as associated development. However, it would be necessary to provide justification that all of the proposed works were 'integral to' the alteration of the railway, and if not, to separate out some works as associated development. The distinction to be drawn is whether works are 'integral to the alteration' not whether they are permitted development under the General Permitted Development Order. An important point to note is that, s25(2) provides that 'the part of the railway to be altered' must be wholly within England. If 'the alteration' as matter of fact stretches into Wales, then arguably none of it is an NSIP. I would suggest that you consider seeking legal opinion on whether you can draw a red line up the Welsh border or a more sensible operational boundary within England and the English part would still comprise 'the alteration'. From the papers it may be that the dividing line could be Bristol Temple Meads or Bristol Parkway. Clearly the extent of the project will involve a complex and extensive pre-consultation involving many local authorities and it may be helpful to meet to discuss how the procedures in relation to the 2008 Act might be applied in this case. If you are consider following this query that an NSIP will be forthcoming then it will be necessary to include the project on our programme and the same information as that previously advised for your other schemes would be required.