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The Legal Position |
The situation has changed considerably since this page was last updated.
The Minister, John Prescott, is now 'minded' to approve what can only be
an illegal development. He offers no suggestion as to how a local authority
could ever achieve the wnning of an Article 4 Direction. Clearly, if they
applied for one as soon as notification of a proposed development arrived,
they could be accused of being irrational. If they waited until consultation
appeared to be exhausted, they would run the risk of being outmanoeuvred
by a rapacious developer, who could simply ignore all objections and proceed
with his plans anyway, as Railtrack have done. Yet the Minister is proposing
to sanction precisely this apparent law breaking, as if the intention of
parliament in drafting the law initially was entirely meaningless!! We give below the detailed legal objections to the case against the position
which the Minister has adopted in saying he is 'minded' not to approve the
Article 4 Direction which the County Council applied for in late October.
The arguments are set out for us by a local barrister and he has sent the
following letter to the Minister. It is in reply to the letter sent to Oxfordshire
CC from the Government Office for the South East. Dear Mr. Prescott, Railtrack plc - Hinksey Sidings 1. I have received Mr. Worley's letter of the 27th May 1999. I have also seen a copy of Mr. Welbourn's letter to the Joint Head of Legal Services of Oxfordshire County Council of 27th May 1999. 2. I note with considerable regret that you are minded not to approve
the Article 4 Direction. I further note that the grounds on which you are
currently minded not to approve the Direction relate to the technicalities
of the procedure rather than the merits of the proposal. 3. I see from paragraph 35 of Mr. Welbourn's letter that you are of the
provisional view that the development is not a 'county matter'. It has,
throughout, been assumed by Railtrack, the County Council and the City Council
that Railtrack's consultation had to be with the County Council rather than
the City Council by virtue of the provision of the Town and Country Planning
Act 1990, Section 1, and Schedule 1. 4. Having regard to the provisions of Schedule 1, paragraph 1(1)(e) it
would appear that the proposed development and in fact the actual development
does indeed consist of 'the use of land for any purpose required in connection
with the transport by rail or water of aggregates or the erection of any
building, plant or machinery which is proposed to use in connection with
them'. 5. You will note the definition of 'aggregates' in the sub-paragraph
and clearly Railtrack are using crushed rock, which is within the definition. 6. Accordingly, it appears to be crystal clear that the development is
a 'county matter' and I would invite you to decide accordingly. Indeed I
do not believe that there is any dispute by anyone other than yourself that
this is a 'county matter'. If your advisers have made such a fundamental
error as this, it casts doubt on all the advice you have received on this
subject. 7. I further note from paragraph 35 of Mr. Welbourn's letter that you
are of the view that the development does not constitute the 'winning or
working of minerals'. Whether or not it involves the winning of minerals,
it clearly involves the working of minerals. There are two distinct operations
covered by the term. You will have noted that the term 'winning or working
of minerals' is not defined in the Town and Country Planning Act 1990, section
336; Schedule 1, paragraph 1(2) merely gives one example of what is included
in the term 'winning or working of minerals', it does not exclude the operation
carried out by Railtrack. The only reported case on the meaning of 'winning
or working' appears to be English Clays -v- Plymouth Corpn [1974]
1 WLR 742, CA; however it does not appear to assist. I would mention that
in that case English Clays applied to the court for a declaration as to
whether or not the proposed development was in fact permitted. The question
must be asked as to why Railtrack have not done so. 8. I note from paragraph 17 of Mr. Welbourn's letter that you are minded
to decide that the operation cannot be classified as a mining operation;
the definition in the Town and Country Planning Act 1990, section 55(4)
does not exclude ballast storage and handling. The analogy with the decision
in Thomas David (Porthcawl) Ltd -v- Penybont [1972] 1 WLR 1526, CA
appears to be an extremely good one as the nature of the operation is a
continuing process. The construction of, for example, a building, is a once
and for all development. A ballast storage site on the other hand involves
a continuous process of ballast in and out; thus every new load of ballast
into the site (or out of the site) is a separate act of development. 9. I am extremely disappointed that you have not commented on the merits
of the development. Substantial evidence has been submitted by residents,
the County Council and the City Council as to the harmful effects of this
development in Green Belt. Railtrack commenced the development after the
meeting at which the relevant Sub-Committee passed the Article 4 Direction.
If you are correct in your view that an Article 4 Direction cannot retrospectively
withdraw permission for a development that comprises a change of use then
it appears that the whole consultation process was a complete farce. Railtrack
commenced the operation after the County Council had passed the Direction
and before you, as Secretary of State, had any time to consider whether
or not to approve that Direction. I note that the decision of Cole -v-
Somerset CC [1957] 1 QB 23 is relied on as authority for the proposition
that an Article 4 Direction cannot retrospectively withdraw permission of
development rights. 10. Having read the decision, I am far from convinced that it is as clear
cut as you suggest. The facts of the case were different. The local authority
passed the Article 4 Direction about four years after the development had
commenced and (after confirmation by the Minister) the Divisional Court
held that permission granted by the Order could not be withdrawn ex post
facto. 11. Railtrack started a non-statutory consultation process in respect
of the proposed development about 12 months ago. The County Council received
many objections to the proposal and formed the view that if the application
were subject to the normal controls it would be rejected on planning grounds.
If the County Council had issued an Article 4 Direction before it had considered
all the relevant submissions, such a decision would have been open to challenge
by way of judicial review as being perverse or in breach of the rules of
natural justice. Likewise, any confirmation by yourself as Secretary of
State prior to considering all the evidence would have been open to a similar
challenge. 12. Thus given the delay inherent in the process, Railtrack has an unfair
advantage if it can at any time decide that it will commence work if it
does not like the way the consultation process is going. Railtrack unilaterally
set the end of the consultation period. In doing so it has been guilty of
bad faith in that it set an arbitrary date, after which it would commence
work irrespective of opposition. I note from paragraph 18 of Mr. Welbourn's
letter that you are minded to decide that the change of use occurred in
the first week of November 1998. This confirms that the development started
after the County Council passed the Article 4 Direction. 13. Are you really suggesting that Parliament intended that any person
with permitted development rights should be able to ride roughshod over
the local authority by starting work and thereby circumventing the Article
4 procedure? If this is your considered opinion, perhaps you would say so
in terms! The Order must be construed so as to make sense. On your interpretation
of the Order it would be impossible to pass an Article 4 Direction that
would be immune to challenge by way of judicial review. 14. There are further examples of Railtrack's bad faith. (1) Railtrack issued a document headed 'The Hinksey Stockpiling Site. Some of your questions answered.' The final question was: 'Isn't this whole consultation exercise a farce?' The answer was as follows: 'No. Railtrack has put a great deal of work into investigating all aspects of this project. Your views count and that's why we want to hear from you. Although we have permitted development rights because the regeneration of the railways is of national importance, we wish to minimise any effects on the community that a ballast stockpile might have. We have already modified our plans following consultation with the local councils and in response to letters we have received. We will consider in detail every further point made to us.' In practice the consultation was a complete farce. (2) There are very serious doubts that the proposed development does
come within the extent permitted by the GPDO. I submitted full details to
the County Council of my reasons for forming the view that Railtrack did
not in fact have permitted development rights. It is a complex legal argument
but on any view there is considerable doubt as to whether or not Railtrack
permitted development rights. The County Council invited Railtrack to apply
for a Certificate of Lawfulness of Proposed Use or Development (CLOPUD)
under Town and Country Planning Act 1990, section 192. Railtrack refused
to seek a CLOPUD; effectively they decided that they were above the law. 15. It seems to me that Railtrack having initiated a process of consultation
cannot unilaterally end that process until all parties have agreed that
the consultation period has concluded. I understand that your Department
has been trying to reach an amicable solution. Further, the County Council
and the City Council have been continually monitoring the site and have
been pressing for further mitigation measures, particularly the City Council
in respect of noise. Thus, whatever the stated position of Railtrack, it
appears that the consultation process is actually continuing. 16. I would mention that the decision of Cole -v- Somerset CC 1
[QB] 23 is that of the Divisional Court. So far as I can see it has never
been the subject of judicial comment by the Court of Appeal or the House
of Lords. It is hardly therefore a definitive statement of the law on the
subject. 17. If you are correct in your opinion that it is for the City Council
rather than the County Council to issue an Article 4 Direction, I should
be most grateful if you would let me know what you consider to be the appropriate
way forward. Has Railtrack become immune from complying with planning procedures
by invoking the wrong procedure? 18. Alternatively, if the consultation process was the wrong procedure,
is it null and void? Are Railtrack back to square one? Do they now have
to submit consultation documents to the City Council? 19. If Railtrack submit consultation documents to the City Council and
the City Council subsequently pass an Article 4 Direction, will you once
again form the view that as a change of use has already taken place an Article
4 Direction cannot retrospectively withdraw permission for that development?
20. I trust that you are aware that in the recent local elections all
the candidates in South Ward were opposed to the quarry at Hinksey and several
of the candidates included in their manifesto a commitment to press for
the withdrawal of permitted developments rights, particularly in Green Belt
land. 21. I note from paragraph 22 of Mr. Welbourn's letter that you assume
for the purposes of the letter that the development consists of a modification
to a line for long distance railway traffic. I have made the point to the
County Council that this is indeed the modification of a line for long distance
railway traffic. 22. I regret to note that you are of the opinion that the development
does not constitute a Schedule 2 project under the 1988 Regulations. It
seems to me that you have placed far too much emphasis on general policy
rather than concentrating on the actual issues. While general policy is
an important guideline, the individual facts of each case vary so widely
that there is a real danger that a rigid application of policy will fail
to take account of all relevant circumstances. 23. This is green belt land adjacent to a Site of Local Importance for
Nature Conservation and part of an important wildlife corridor. The geography
is reasonably well described in paragraph 30 of Mr. Welbourn's letter, although
no mention is made of the Grandpont Nature Reserve. The area is well described
in the submission of 'Stop the Quarry' dated the 5th November
1998. The activities carried out are in Appendix 1 to that submission. 24. I am extremely disappointed to note from paragraph 31 of Mr. Welbourn's letter that you are minded to conclude that the development would not be likely to have significant effects on the environment. Without wishing to appear to be cynical, this reminds me of Yes Minister. See 'The Complete Yes Minister', Ch. 6, The Right to Know (p 133.): 'Almost anything can be attacked as a loss of amenity and almost anything
can be defended as not a significant loss of amenity'. 25. For the local environment, the effects are highly significant.
I would concede that, compared with the Channel Tunnel, an international
airport or a motorway the effect is marginal. However, if nationally you
allow one hundred projects which the local authorities and local residents
oppose because of the effect on the environment, the cumulative effect on
the national environment will be significant. Have you taken this into account? 26. I note that you have had regard to Council Directive 97/11/EC and
the Town and Country Planning (Environmental Impact Assessment) (England
and Wales) Regulations 1999. I note that these regulations do not apply
to development lawfully carried out before the 14th March 1999.
Although these Regulations were not made until the 10th February
1999, Railtrack was well aware of the provisions of European law from the
arguments put forward by Stop the Quarry to the County Council (if not from
their own researches). I would suggest that a further reason why Railtrack
commenced work in November was to get in before the relevant Directive was
implemented into domestic law. This is a further example of bad faith by
Railtrack. 27. I am concerned that there is only a passing reference to noise in
Mr. Welbourn's letter (paragraph 30). I would remind you of my letter of
the 19th November 1998 in which I indicated that the Report of
the Head of Planning Policy and Economic Development of the City Council,
dated the 25th September 1998 gave a lot of technical data and
concluded that the noise would constitute a statutory nuisance under the
Environmental protection Act 1990, section 79. Now that we have actually
experienced the development, the City Council are very concerned at the
noise level and at a recent public meeting indicated that their fears were
justified and that the noise level was indeed a statutory nuisance. Surely
this is significant environmental impact? 28. This development is a matter of great importance to the local residents;
there is a general feeling that Railtrack, by virtue of its size, is able
to do what it likes without regard to the normal consequences that would
follow where an individual rode roughshod over the proper planning procedures.
It is now some eight months since Railtrack unilaterally decided to start
quarry operations at Hinksey and it has had a very serious impact on the
local community. 29. I would urge you to reconsider your provisional view and confirm
the Article 4 Direction. This will merely bring the proposal within normal
planning procedures. There are important conflicts of fact which can only
be resolved by submission of the proposal to the proper scrutiny of a planning
application. 30. I am sure that you are mindful of the comment made by Mrs Gwyneth Dunwoody MP in the House of Commons on the 15th June 1999 (Hansard Col 160): 'There is no point in trying to hide the fact that the company [Railtrack]
makes large sums of money and does not carry out what it has promised'. 31. As a regular train traveller, I am conscious of the need to maintain
and develop the railway network. In my previous letter, I mentioned the
alternative site at Moreton Cutting. This is a much more suitable site from
an environmental point of view and meets the criteria which Railtrack laid
down. All that is needed is to clear vegetation and construct sidings. 32. I look forward to hearing from you. I trust it will be possible for
you to provide a detailed answer to the points which I have made. Yours sincerely, <HR> Railtrack claim that they have permitted development rights, and that they therefore do not have to apply for planning permission for this monstrous industrial development. They claim that the rights granted to statutory bodies (Rail, Gas, Electricity, Water) under the Town and Country Planning (General Permitted Development) Order 1995 allow them to turn over the land for industrial use, no matter how ecologically sensitive or beautiful the land is. What this means is that wherever you live, however green or historic the area, if any of these utilities own land close to you, they can convert that land into an industrial site 'for operational needs', even if it has had hardly any use over the last 50 years. If local authorities try to protest, they are threatened with huge compensation claims. Even if the Secretary of State intervenes independently, the local authority may still be forced to pay large sums in compensation. Railtrack's view is hotly disputed by the Stop The Quarry Action Group. There are numerous points on which we believe they are transgressing the law and could be challenged. We believe that, in addition to Railtrack's misinterpretation of the rights granted to them, European law is strongly against the proposed development on many grounds, particularly environmental ones. The fact that they were determined to complete their development before March 14th, in order to sidestep European Law, which would have compelled them to have an environmental impact survey done of the site, makes nonsense of the Secretary of State's claim that there is no significant threat to the environment. If Railtrack and the government genuinely believe this to be so, then why are they so afraid of a proper environmental survey being commissioned? Let us have it done, by an independent panel, and let them prove their point. Equally let them prove that their development is legal by obtaining a Certificate of Lawfulness of Proposed Use or Development, which they have so far been afraid to do. Our conclusion is that the development is illegal, that it should be stopped, and that Railtrack should be heavily fined' |