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RAILTRACK SIDE-STEPS NORMAL PLANNING CONTROLS TO PROVIDE RETAIL FACILITIES

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A high court judge has backed the right of organisations such as Railtrack to use their status as 'statutory undert...
A high court judge has backed the right of organisations such as Railtrack to use their status as 'statutory undertakers' to side-step normal planning controls in respect of provision of retail facilities at their centres of operation.

Mr justice Silber dismissed Manchester City Council's appeal in a test case battle focusing on the provision of new facilities at the redeveloped Manchester Picadilly Station.

The£60m redevelopment has increased retail floor space in the station from 9,000 square feet to 46,000 square feet, and included the addition of a 'Sainsbury's Local' store.

The judge ignored pleas from the council that deciding the case as he has would 'entitle a railway undertaker to operate as a large scale property developer without any control under the Building Act.'

He said that he only had to rule on the meaning of the Act, and that parliament must be 'assumed to have been able to appreciate the meaning and effect of the statutory provisions that it was implementing.'

Railtrack argued that, as a statutory undertaker, it is obliged to provide such facilities for use as part of its undertaking and that in those circumstances it is exempt from the normal need to provide plans for the scheme under building regulations.

Mr Justice Silber preferred that view to the one put forward by the council, which claimed that provision of retail units was not a part of Railtrack's services and that it should have complied with full planning procedures.

He backed a district judge's ruling that the provision of shops and cafes in stations could, in the eyes of the law, be seen as part of Railtrack's statutory undertaking as rail service provider.

The verdict is a major victory for Railtrack, potentially entitling it and other statutory undertakers such as airports to side-step important planning procedures to build ever larger retail developments in their centres of operation.

The council had challenged a decision in May this year in which district judge Peter Ward dismissed a summons issued by the council against Railtrack.

He found that the provision of retail units came within 'station services'-part of the definition of Railtrack's statutory undertaking - and so the building works carried out were exempt under the operation of section 4(1)(b) of the 1984 Building Act.

That section, he ruled, rendered Railtrack and other 'statutory undertakers' exempt from providing plans under building regulations, provided the proposed development is to be 'held or used by them for the purposes of their undertaking.'

The district judge said: 'It is true that a railway cannot run without stations, platforms and lines, and that it can run without a buffet but that does not mean that such things cannot form part of the railway company's undertaking.

'I accept that it has long been the case that railway stations provide facilities for refreshment for passengers and retail facilities as part of the service to travellers. There has, for example, been a WHSmith retail unit in many stations for a very long time. Such units provide a service to travellers to enable them to buy newspapers, books or magazines to read on the journey.

'There has been an increase over the years in the number and type of retail unit. It is common now to find chemists, cafes and bars, and various others. I agree with Railtrack's submission that the term 'station services' does not exclude shops. It seems clear that Railtrack has the power to do what it is now doing at Piccadilly Station.'

However, challenging that decision in the high court last month, David Travers, counsel for Manchester City Council, argued that the provision of retail units was not part of Railtrack's statutory undertaking.

He said: 'Even if the district judge was correct in concluding that the provision of a station buffet is within the railway undertaking, it does not follow that the provision of a branch of Sainsbury's or some other commercial outlet is also part of the undertaking.'

Claiming that full plans should have been submitted before the work took place, he said his clients were charged by statute with 'the duty of ensuring that building works are carried out in accordance with appropriate standards which are set to protect the safety of those using the building or likely to be affected by it.'

However, Frances Patterson, arguing for Railtrack that the district judge's decision should be left intact, said: 'The works have brought about a significant improvement in the quality of services available to the rail travelling public coming to and leaving the city of Manchester via Piccadilly Station.

'The improvements of the station, physically and functionally, and its enhancement will, it is hoped, encourage more people to use rail services in direct accordance with government policy. The works will enable the station to meet the anticipated growth in passenger numbers in future years.

''Station services' are not restricted to exclude shops. The phrase has been widely drawn deliberately to allow the statutory undertaker to improve the attractiveness of his undertaking to the public. The increased floorspace provided at Piccadilly is within the natural and ordinary meaning of the words 'station services'.

'What is more, in the particular circumstances of Piccadilly Station, the

income from the increased floorspace pays for the upgraded facilities, which is part of the undertaking.'

Backing the district judge's decision today, Mr justice Silber said that the submissions advanced by Miss Patterson were 'cogent and well-founded' and that she had persuaded him that, as a matter of the construction of the

Building Act, the district judge had been right.

He said: 'Mr Travers submits that if Miss Patterson is right, then the word 'undertaking' is so wide that it would exempt a huge range of commercial activities and would, he says, for example entitle a railway undertaker to operate as a large scale property developerwithout any control under the Building Act.

'My duty is to construe and to ascertain what the parliamentary intention was, rather than considering the consequences of any interpretation, because parliament must have been assumed to have been able to appreciate the meaning and effect of the statutory provisions that it was implementing.'

STRAND NEWS SERVICE

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