Planning Process

There are a number of mechanisms by which approval for the Windsor Link Railway can be sought. This governs the process by which the views of local residents and others are taken into account and fairness to individuals is balanced with the national interest. A key initial question is whether the project is of national significance.

The Planning Act 2008

Section 25 of the Planning Act 2008, as amended by the The Highway and Railway (Nationally Significant Infrastructure Project) Order 2013, says:

(1) Construction of a railway is within section 14(1)(k) only if—

(a) the railway will (when constructed) be wholly in England,

(b) the railway will (when constructed) be part of a network operated by an approved operator,

(ba) the railway will (when constructed) include a stretch of track that —

(i) is a continuous length of more than 2 kilometres, and

(ii) is not on land that was operational land of a railway undertaker immediately before the construction work began or is on land that was acquired at an earlier date for the purpose of constructing the railway and

(c) the construction of the railway is not permitted development.

(2) Alteration of a railway is within section 14(1)(k) only if—

(a) the part of the railway to be altered is wholly in England,

(b) the railway is part of a network operated by an approved operator,

(ba) the railway will (when constructed) include a stretch of track that —

(i) is a continuous length of more than 2 kilometres, and

(ii) is not on land that was operational land of a railway undertaker immediately before the construction work began or is on land that was acquired at an earlier date for the purpose of constructing the railway, and

(c) the alteration of the railway is not permitted development.

(2A) Construction or alteration of a railway is not within section 14(1)(k) to the extent that it takes place on the operational land of a railway undertaker unless that land was acquired for the purpose of the construction or alteration.

(3) Construction or alteration of a railway is not within section 14(1)(k) to the extent that the railway forms part (or will when constructed form part) of a rail freight interchange.

(4) “Approved operator” means a person who meets the conditions in subsections (5) and (6).

(5) The condition is that the person must be—

(a) a person who is authorised to be the operator of a network by a licence granted under section 8 of the Railways Act 1993 (c. 43) (licences for operation of railway assets), or

(b) a wholly-owned subsidiary of a company which is such a person.

(6) The condition is that the person is designated, or is of a description designated, in an order made by the Secretary of State.

(7) In this section—

“network” has the meaning given by section 83(1) of the Railways Act 1993 (c. 43);
“permitted development” means development in relation to which planning permission is granted by article 3 of the Town and Country Planning (General Permitted Development) Order 1995;
“wholly-owned subsidiary” has the same meaning as in the Companies Act 2006 (c. 46) (see section 1159 of that Act);
“operational land” has the same meaning as in the TCPA 1990(1);
“railway undertaker” has the same meaning as in Part 17 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995(2).

(8) The reference to the Town and Country Planning (General Permitted Development) Order 1995 is to that Order as it has effect immediately before the day on which this section comes fully into force.

Planning Process

WLR’s initial view is as follows:

Phase 1 of the Windsor Link Railway is under a mile long (less if you exclude the portion on operational rail land) and subsection (2)(ba)(i) thus means that this phase does not need to be considered as a project of national significance. It is therefore likely to be progressed via the provisions of the Transport and Works Act 1992.

Phase 2 of the WLR, however, clearly does fall within this definition and will therefore have to go through the National Infrastructure Planning process. Although the pre-requisites for this process are more onerous, this is a more streamlined and faster process, designed to help economic growth by removing planning obstacles.

Note that this is a preliminary view from WLR and is subject to professional advice and management discretion as to how best to move the project forward. It should also be noted that this assumes that the two phases can properly be treated separately, otherwise they would both have to go through the national process.

Local MPs

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