Ref No: HGR-M0510

Issue No: 01 Issue Date: July 2017

Heritage Railway Association GUIDANCE NOTE

Planning & Permitted Development

Users of this Guidance Note should check the HRA website, www.hra.uk.com , to ensure that they have the latest version. Table of Contents 1. Introduction ...... 2 2. Planning Control ...... 2 3. Development ...... 2 4. Non-development ...... 2 5. Permitted Development ...... 2 6. General Permitted Development ...... 3 7. Transport and Works Act Orders ...... 3 8. The Town and Country Planning (General Permitted Development) Orders in England, Wales, and ...... 4 9. Permitted development by railway undertakings and undertakings ...... 4 10. Definition of the term “Railway Station” ...... 5 11. Permitted development by tramway undertakings ...... 5 12. Restrictions to Permitted Development Rights ...... 6 13. Materiality ...... 7 14. Enforcement ...... 7 15. Prior consultation with the Local Planning Authority strongly recommended ...... 7 Appendix A: Permitted Development Rights Flow Chart ...... 8

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Disclaimer The Heritage Railway Association has used its best endeavours to ensure that the content of this document is accurate, complete and suitable for its stated purpose. However it makes no warranties, express or implied, that compliance with the contents of this document shall be sufficient to ensure conformity with the law in all respects. Accordingly the Heritage Railway Association will not be liable for its content or any subsequent use to which this document may be put.

1. Introduction This note provides guidance to Heritage Railways and Tramways on Permitted Development Rights under the Town and Country Planning legislation. Paragraphs 2 to 8 explain planning control, the meaning of development, the nature of permitted development and the scope of the General Permitted Development Orders.

2. Planning Control All development in the UK is subject to control under the Town and Country Planning legislation, as applied in England, Wales, Scotland and Northern Ireland.

3. Development Development is defined as: 1. Building operations (eg structural alterations, construction, rebuilding, most demolition); 2. Material changes of use of land and buildings; 3. Engineering operations (eg ground works); 4. Mining operations; 5. Other operations normally undertaken by a person carrying on a business as a builder; 6. Subdivision of a building (including any part of it) used as a dwelling house for use as two or more separate houses.

4. Non-development A. The categories of work in England and Wales that do not amount to development are set out in Section 55(2) of the Town and Country Planning Act 1990. These include, but are not limited to, the following: 1. Interior alterations (except mezzanine floors which increase the floor space of retail premises by more than 200 square metres); 2. Building operations which do not materially (ie significantly) affect the external appearance of a building; 3. A change in the primary use of land and buildings where the before-and-after use falls within the same use class. B. The categories of work in Scotland that do not amount to development are set out at Section 26 (2) of the Town and Country Planning (Scotland) Act 1997. The categories of work in Northern Ireland that do not constitute development are set out at Section 23(3) of the Planning Act (Northern Ireland) 2011.

5. Permitted Development A. All development requires Planning Permission from the local authority for the area in which the development is being carried out ie the Local Planning Authority (usually the District or Unitary Council) unless it falls within the category of Permitted Development Rights or has received planning consent obtained separately from the Secretary of State in parallel with a Transport and Works Act

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Order (see paragraph 7 below). Permitted Development Rights derive from a general planning permission granted not by the Local Authority but by Parliament. These are known as the Town and Country Planning (General Permitted Development) Orders. There are separate orders in force in each of England, Wales, Scotland and Northern Ireland (see paragraph 8 below). These orders are updated from time to time. The references in this guidance are to the orders currently in force. Where the Secretary of State or a Local Planning Authority gives planning permission for development they may do so subject to one or more conditions which the developer will be required to meet.

6. General Permitted Development A. Separate General Permitted Development Orders apply in each of England, Scotland, Wales and Northern Ireland. However, a common feature is that under the General Permitted Development Orders railway or light railway undertakings ie those authorised by any enactment to carry on any railway or light railway undertaking, as referred to at Section 262 of the Town and Country Planning Act 1990; and tramway undertakings, except in the case of Northern Ireland, may enjoy the benefit of deemed planning consent for certain developments. The term “any enactment” encompasses: 1. A Local Private Act; 2. A Light Railway Order under the Light 1896; 3. A Transport and Works Act Order in England and Wales under the Transport and Works Act 1992; and in Scotland under the Transport and Works (Scotland) Act 2007. This Order can be used to authorise the construction and operation of, among others: railways, tramways and other guided transport systems. In England the General Development Order does not state that a railway undertaking has to be statutory (ie authorised under an enactment) for it to apply. In Northern Ireland the Order covers both statutory and non-statutory railway undertakings, explicitly, but in Wales and in Scotland the General Development Orders cover only those railways which are statutory undertakings. 4. A “consent” under the Planning Act 2008 (required for larger schemes on the national railway network in England, which are likely to qualify as “Nationally Significant Infrastructure Projects)”.

7. Transport and Works Act Orders A. A Transport and Works Act Order (TWA Order), under the Transport and Works Act 1992 in England and Wales or under the Transport and Works (Scotland) Act 2007 in Scotland, is the most common means currently for the establishing or extending a railway, light railway or tramway, and for conferring on it the status of a statutory undertaking. The Government’s guidance makes clear that: “a TWA order does not in itself grant planning permission. But the organisation applying for the order can ask the Secretary of State to grant planning permission for any development described in the order. The Secretary of State would only grant planning permission if he or she decided to make the TWA order. He or she would do so at the same time as the order was made, and may attach conditions to it. On the other hand, the organisation applying for the TWA order may apply for planning permission, separately to the local planning authority (usually the district or unitary council).” The guidance notes that listed building consents and other consents may also be required and can be applied for at the same time as the TWA Order. (See Transport and Works Act orders – a brief guide; Department for Transport.) https://www.gov.uk/government/publications/transport-and-works-act-orders-a-brief-guide-2006

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8. The Town and Country Planning (General Permitted Development) Orders in England, Wales, Scotland and Northern Ireland A. Permitted Development Rights applicable to railway or light railway undertakings; and tramway undertakings in England are set out principally in The Town and Country Planning (General Permitted Development) (England) Order 2015. The 2015 Order, which covers all railway undertakings in England whether or not they are statutory, sets out classes of development in England for which a grant of planning permission is automatically given (i.e. deemed), providing that no restrictive condition is attached or that the development is exempt from the Permitted Development Rights. Permitted Development Rights applicable to statutory but not non-statutory railway or light railway undertakings; and tramways, in Wales are set out in the Town and Country Planning (General Development Order 1995). Permitted Development Rights applicable to statutory but not non-statutory railway or light railway undertakings; and tramway undertakings, in Scotland are set out in the Town and Country Planning (General Permitted Development) (Scotland) Order 2011. Permitted Development Rights applicable to both statutory and non-statutory railway undertakings in Northern Ireland (light railway undertakings in Northern Ireland are not distinguished separately) are set out in The Planning (General Permitted Development) Order (Northern Ireland) 2015. This Order makes no permitted development provisions for tramways in Northern Ireland.

9. Permitted development by railway undertakings and light railway undertakings A. Schedule 2 Part 8 Class A – railway or light railway undertakings, of the Town and Country Planning (General Permitted Development) (England) Order 2015 indicates that: 1. Development by railway undertakers on their operational land, required in connection with the movement of traffic by rail is permitted development. This would include, for example, the replacement of existing trackwork or the provision of a signal box but it would not include the construction of a railway or the erection of a hotel, railway station or bridge, none of which is permitted development ; 2. The construction or erection of an office , residential or educational building or a building used for an industrial process is permitted development where it is wholly within a railway station (see paragraph 10 below of this guidance for the definition of “railway station”); 3. Similarly, the construction or erection of a car park, shop, restaurant, garage, petrol filling station or other building or structure provided under transport legislation is permitted development where it is wholly within a railway station. B. Schedule 2 Part 8 Class A states (at A.2) that for the purposes of Class A references to “the construction or erection of any building or structure” include references to the reconstruction or alteration of a building or structure where its design or external appearance would be materially affected. C. However, it is important to be aware that Permitted Development Rights may be restricted by the Local Planning Authority where the development is in a designated area, or the building or buildings affected are listed. There are many such circumstances in the UK. (See paragraph 12 below (Restrictions to Permitted Development Rights).) Schedule 2 Part 17 Class A of the General Permitted Development Order 1995 contains the identical provisions that apply to statutory railway undertakers in Wales. Schedule 2 Part 13 Class 34 of the Town and Country Planning (General Permitted Development)(Scotland) Order 2011 contains the provisions that apply to statutory railway undertakers in Scotland. These are identical to those for England and Wales except for the qualification that “the reference to industrial process does not include the washing, maintenance and cleaning of rolling stock.” Schedule 2 Part 14 Class A of the Planning (General Permitted Development) Order (Northern Ireland) 2015 contains the provisions that apply to statutory and non-statutory railway undertakings in

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Northern Ireland. These include several additional provisions to those which apply in England, Scotland and Wales, in particular: 1. a building used for manufacturing or repair work is permitted where wholly within a railway station; 2. new or replacement apparatus (other than on a building or other structure), excluding any antenna of less than 15 metres in height above ground level is permitted where wholly within a railway station; 3. the installation , alteration or replacement of antennas is permitted, subject to at least 28 days’ notice to the Council, in writing, or, in the event of an emergency, as soon as possible after the emergency begins; 4. development is not permitted in areas of special scientific interest or a site of archaeological interest; 5. the installation or replacement of any apparatus (other than on a building or other structure), excluding any antenna, is not permitted where it would exceed 15 metres in height above ground level; 6. the installation of a mast on a building or other structure is not permitted where it would exceed 15 metres in height above ground level or be within 20 metres of the boundary of a road. D. Please note that planning permission must be sought for all developments that are not permitted under the relevant Town and Country Planning General Development Orders for the particular region of the UK (England, Wales, Scotland or Northern Ireland) in which the development is planned to take place.

10. Definition of the term “Railway Station” A. A Legal member of the Royal Town Planning Institute has commented that: “there is no formal definition of a “railway station” in the legislation, and, in fact, 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.” B. However, there is, despite that, legal precedent for the broader view that a “railway station” is more than just the platforms and the buildings on them. In the case of South Eastern Railway v Railway Commissioners (1880) Lord Justice Brett said that “the term (station) is not in ordinary sense used as a description merely of the actual structures of the station; but as the description of a space actually set apart for, and generally used as, a resting place for traffic, or a place for dealing with it in a particular way, although every part of the space is not covered with structures or used for passing along or for deposit.” C. Following Lord Justice Brett’s definition one might assume that the term “railway station” would, self- evidently encompass all land within the curtilage of the station property and its existing facilities, including road approaches, rail approaches, sidings and existing sheds, station buildings and other associated buildings, signal boxes and other railway infrastructure. However that would be a bold assumption and it would be a matter for the Local Planning Authority to determine in the first instance and ultimately for the Secretary of State, in the event of an appeal against the decision of the Local Planning Authority. It would not be safe to assume that either would necessarily agree with the broader definition of “railway station,” which is why this should be discussed with the Local Planning Authority at an early stage.

11. Permitted development by tramway undertakings A. Under the General Permitted Development Orders for England, Scotland and Wales the following developments by tramway undertakings are permitted:

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1. the installation of posts , overhead wires, underground cables, feeder pillars or transformer boxes in, on, over or adjacent to a highway for the purpose of supplying current to public service vehicles; 2. the installation of tramway tracks, and conduits, drains and pipes in connection with such tracks for the working of tramways; 3. the installation of telephone cables and apparatus, huts, stop posts and signs required in connection with the operation of public service vehicles; 4. the erection or construction and the maintenance, improvement or other alteration of passenger shelters and barriers for the control of people waiting to enter public service vehicles; 5. any other development on operational land of the undertaking. B. Development is not permitted if it would consist of: 1. in the case of (A 1), the installation of a structure exceeding 17 cubic metres in capacity; 2. in the case of (A 5), the erection of a building or the reconstruction or alteration of a building where its design or external appearance would be materially affected; the installation or erection by way of addition or replacement of any plant or machinery which would exceed 15 metres in height or the height of any plant or machinery it replaces, whichever is the greater; or development, not wholly within a tramway station (ie an area either on or off street for the collection or setting down of passengers from tramway vehicles.) in pursuit of powers contained in transport legislation. C. The relevant provisions are the Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2 Part 9 “Development related to roads,” Class C – tramway or road transport undertakings; in Wales the Town and Country Planning (General Permitted Development ) Order 1995 Schedule 2 Part 17 “Development by Statutory Undertakers,” Class H Tramway or Transport Undertakings; and in Scotland the Town and Country Planning (General Permitted Development) (Scotland) Order 2011 Schedule 1 Classes of Permitted Development , Part 13 “Development by Statutory Undertakers,” Class 41 Tramway or Road Transport Undertakings. The Planning (General Permitted Development) Order (Northern Ireland) 2015 Schedule Part 14 Class E “road passenger transport undertakings “ contains no specific permitted development provisions in relation to tramways. D. Permitted Development Rights may be restricted by the Local Planning Authority where the development is in a designated area, or the building or buildings affected are listed (see paragraph 9 above).

12. Restrictions to Permitted Development Rights A. In some areas of the country , known generally as “designated areas,” permitted development rights are likely to be restricted, for example in a Conservation Area, a National Park, Areas of Outstanding Natural Beauty, World Heritage Sites or the Norfolk or Suffolk Broads. There is a large number of such areas and their coverage is broad. For example, there are 10 National Parks in England covering 9% of the land area, 3 in Wales, covering 20% of the land area and 2 in Scotland, covering 7% of the land area. The World Heritage Sites include Cornwall and West Devon Mining Landscape, Dorset and East Devon Coast and the Ironbridge Gorge, the Forth Railway Bridge in Scotland and Blaenavon in Wales. There are 38 Areas of Outstanding Natural Beauty in England and Wales covering 18% of the countryside and 8 in Northern Ireland covering 70% of Northern Ireland’s coastline; there are 40 National Scenic Areas in Scotland, covering 13% of the land area; and there are over 8000 conservation areas (areas of special architectural and historic interest) in England, over 600 in Scotland and 500 in Wales, as well as a large number in Northern Ireland. In all these areas the Local Planning Authority will have an interest in the visual impact and in the design, cladding and finish of buildings and so it is likely that the Permitted Development Rights will be withdrawn in such areas and it will therefore be necessary to apply for planning permission for development which in other areas and circumstances would have deemed permission to proceed. Many heritage railway buildings are listed under the Planning (Listed Buildings and Heritage Conservation) Act 1990 for the importance of

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their architecture. Where a building is listed, a listed building consent from the Local Planning Authority will be required for any change which affects its appearance. Many heritage railways are likely to come within one or more designated areas, where permitted development rights may be restricted, and many are likely to have one or more listed buildings and structures, for any change to which listed building consent will be required.

13. Materiality If something is considerable, solid or substantial it is material. Materiality is an important factor in assessing whether a development, which might otherwise be permitted, requires planning permission. The building of a carriage shed, for example, or the erection of a signal box is likely to be regarded as material and may therefore require planning permission. Material changes of use also require planning permission unless they are permitted under the Town and Country Planning (Use Classes) Order.

14. Enforcement Failure to obtain Planning Permission, when the Local Planning Authority judges that Planning Permission is required, may result in a fine and in enforcement action. The Local Planning Authority may, for example, require a developer to make alterations to the design, cladding and finish of a building and, in some cases, may enforce its complete demolition. There are rights of appeal to the Secretary of State but even if the appeal is successful this can be very costly and time consuming and is best avoided.

15. Prior consultation with the Local Planning Authority strongly recommended B. To assist undertakings involved in the planning process the Government sponsors an online Planning Portal: https://www.planningportal.co.uk which aims to provide answers, services and information as well as a channel through which planning applications can be made. There are a large number of potential exceptions to the development rights permitted under the General Development Orders arising in relation to designated areas, listed buildings and questions of materiality and interpretation by the Local Planning Authority. So, regardless of whether an undertaker may think its proposed development is likely to fall within the scope of the General Permitted Development Order (and the undertaking should have formed a view on that), the Planning Portal’s general advice is that the undertaking should contact its Local Planning Authority (i.e. the Planning Authority for the area in which the proposed development is situated, normally the District Council or Unitary Council) and discuss the proposal before any work begins. The Local Planning Authority alone will be able to inform the undertaking of any reason why the development may not be permitted, including any local restrictions of permitted development rights which may apply in the area where the proposed development is situated, whether the undertaking needs to apply (fee payable) for a certificate of lawful proposed use or development under Section 192 of the Planning Act 1990, a document which provides legal confirmation of permitted development rights in respect of a proposed development (and on which the Local Planning Authority may insist having in place of an informal opinion on whether the undertaking’s proposed development is permitted development or not), and if it needs to apply for planning permission for all or part of the proposed development (fee payable). Early consultation can save a lot of time and money. The undertaking may also wish to seek advice from a qualified Planning Consultant (service charged at professional rates), especially before preparing an application for planning permission or appealing against refusal of a certificate of lawful development or refusal of planning permission. It is usually helpful to choose a Planning Consultant familiar with the local planning authority concerned. The Royal Town Planning Institute (RTPI) publishes an online directory of professionally qualified Planning Consultants at https://www.rtpiconsultants.co.uk ______end of main document ______

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Appendix A: Permitted Development Rights Flow Chart

Please note: Development without consent may be subject to Enforcement and financial penalties. Checking with the Local Planning Authority first can save a lot of time and money ______end of appendix ______

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