Network Rail claim that erecting these masts on their own land falls within the "permitted development" they are entitled to under Part 17(A) of the Town & Country Planning (General Permitted Development) Order 1995, or GPDO, which concerns 'Railway or light railway undertakings'. Permitted developments do not require planning consent. This privilege dates back to the 19th century, long before the advent of mobile telecommunications. There is no limit on height under Part 17(A). The GPDO also contains specific provision for telecommunications masts: Part 24 (Development by Telecommunications Code System Operators) and Part 25 (Other Telecommunications Development) of the GPDO, which covers other mobile phone operators and limits them to a mast height of 15 metres unless they get planning consent. Network Rail argue that these provisions do not apply to them.
Article 4 of the GPDO can be used to restrict or prevent permitted development, but councils are very reluctant to use it, because they may have to compensate the developer; it is used only in exceptional circumstances, eg in Conservation Areas or for buildings with Grade 1 listing. South Hams District Council served an Article 4 Direction on Network Rail to prevent them putting a GSM-R Mast in front of Totnes Castle (Listed Grade 1*). Paragraph 46 of Planning Policy Guidance 8: Telecommunications states that "where a particular rural or urban location seems likely to attract obtrusive or inappropriate telecommunications development which would seriously threaten amenity, the Secretary of State will give sympathetic consideration to directions submitted for approval."
There are several reasons why Network Rail may be wrong in its interpretation of the existing GPDO, which are explored in an excellent section of the Planning Sanity website *. The author argues that, since Part 17(A) applies only to development "required in connection with the movement of traffic by rail", that development cannot be used, wholly or partly, for any other purpose. He then cites evidence that Network Rail plans to use the GSM-R masts for "customer information systems, as well as for more general business needs" - neither of which is directly relevant to the movement of rail traffic. The author also argues that Part 17 is in violation of Article 6.1 of the European Convention on Human Rights and Fundamental Principles.
Another, and maybe even more telling, reason for disallowing Network Rail's claim to immunity under Part 17(A) has been pointed out by Patsy Calton, MP for Cheadle, in Parliament and on her website. In a written reply to a parliamentary question, Alistair Darling, Secretary of State for Transport, revealed that the masts erected 18 months ago on the West Coast Main Line are still not operational - indeed, there is no prospect of them becoming fully operational until 2015 (see Delays? So what!). According to Mr Darling, they don't even support GSM-R voice traffic yet. How then, she argues, could Network Rail claim that they were "required in connection with the movement of traffic by rail"? Mrs Calton has written to her Council's Planning Department to ask that enforcement action be taken against Network Rail for erecting a GSM-R mast in her constituency.
Indeed, even if Network Rail expect to be able to implement simple driver-to-signaller voice radio in the near future using GSM-R, it is certain that they don't need so many and such tall masts for that purpose (see GSM-R masts: why so big, and why so many?). It is clearly illegitimate for Network Rail to claim permitted rights for any mast that will not be used operationally for more than a fraction of its capacity for nearly 10 years.
The Planning Sanity website referred to above also argues that, even if Part 17, which covers railway infrastructure in general, is applicable, Part 25, which specifically covers microwave antennae, should take precedence.
Nonetheless, Network Rail, backed by the Government, insist that the masts are to be considered as railway infrastructure and not as telecommunications masts. Just how principled this position is can be judged by the facility with which they reverse it when it's convenient for them to do so (see below).
The Government is reviewing the planning process, in particular Permitted Development Rights. The main purpose is to speed up planning decisions by extending these rights, but it does seem possible that Network Rail's 'rights' under Part 17(A) may be curtailed. A report, Review of Permitted Development Rights (976kb PDF), is available from the Office of the Deputy Prime Minister (ODPM). Read relevant excerpts.
However, even if the Government does change the law in time to prevent the erection of 2000 33-metre masts, it would be a Pyrrhic victory if it resulted in the erection of twice or three times as many 50-foot (15-metre) masts in their place. In any case, there seems to be no good reason why the masts have to be so big and/or numerous
EU Directive 2001/42/EC requires an Environmental Impact Assessment (EIA) to be carried out for major projects, to ensure that the environmental implications of decisions are taken into account before they are made. This should entail the publication of a report and a public consultation exercise. In the Guidance on EIA (400kb PDF), item 3.13 in the checklist is: “Is the landscape or townscape of the area that may be affected by the Project described, including any designated or protected landscapes and any important views or viewpoints?” Directive 97/11/EC, which updates Directive 85/337/EEC (see consolidated version 78kb PDF) lists projects requiring EIAs in Annex I. Item 7(a) of that list is: “Construction of lines for long-distance railway traffic”.
Clear enough, you might think. We wrote to the Environmental Assessment Branch of the ODPM, which is responsible for environmental assessments, to ask whether the EIA had been completed and, if so, where we could get a copy of the Report and details of the public consultation exercise that took place. Here was the ODPM's reply:
In regards to environmental impact assessment, erection of telecommunications masts are not projects that come under the Directive 85/337/EEC on "The assessment of the effects of certain public and private projects on the environment" as amended by Directive 97/11/EC. UK EIA Regulations do not, therefore, require EIA for such projects.
There we have it in all its Orwellian elegance: as far as the GPDO is concerned, GSM-R masts are not telecommunications masts but part of the railway infrastructure; as far as Directive 97/11/EC is concerned, they are not part of the railway infrastructure but telecommunications masts.
Even the ODPM seems to be ignorant of the extent of Network Rail's powers. In Paragraph 5 of the evidence submitted to the All Party Parliamentary Mobile Group in April 2004 (Word doc), the ODPM boasts of its:
…national policies for the protection of the countryside and residential areas, in particular our National Parks, Areas of Outstanding Natural Beauty, conservation areas and Sites of Special Scientific Interest. The installation of any communications mast in such areas, and of a mast of more than 15 metres in height elsewhere, is subject to a full planning application. [Our emphasis]
The last sentence is just not true, of course - because of their privileged position, which the ODPM supports, Network Rail can, and do, erect masts of any height, anywhere they want, regardless of local concerns (or maybe the ODPM has been taken in by its own casuistry and believes that they really aren't telecommunications masts at all).
There is another legal avenue that applies to Areas of Outstanding Natural Beauty: Section 85 of the Countryside and Rights of Way Act 2000 states that "a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty". "Relevant authorities" include statutory undertakers (which includes Network Rail) and local authorities. This is in Part IV of the Act. The Catch 22 with that legislation is that, according to DEFRA (the Department for Environment Food and Rural Affairs, "whether an authority is in compliance or not would be a matter for a Court to decide" - DEFRA itself does not get involved.