The Preston Dock Railway Order

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Decision letter

Winckworth Sherwood
Solicitors and Parliamentary Agents             
35 Great Peter Street
Westminster
London
SW1P 3LR

Ellis Harvey
Head of the TWA Orders Unit
Zone 9, 9th Floor
Southside
105 Victoria Street
London
SW1E 6DT

Direct line: 020 7944 2483
Fax: 020 7944 6248
e-mail: transportandworksact@dft.gov.uk
Web site: www.dft.gov.uk/strategy/twa

Our Ref: TWA APP/02/10
Your Ref: HSW/22190/1
16 November 2004

Dear Sirs

Transport and Works Act 1992
The proposed Preston Dock Railway Order

  • I am directed by the Secretary of State for Transport to say that consideration has been given to the application made on 11 December 2002 by your clients, Steamport Southport Limited, for the proposed Preston Dock Railway Order ("the Order") to be made under sections 1 and 5 of the Transport and Works Act 1992 ("the TWA").
  • The Order, if made, would authorise the transfer from Preston City Council to your clients of two lengths of existing railway, known as Railway No 1 and Railway No 2, comprising parts of the Preston dock railway system, as follows: Railway No 1, commencing at a point to the west of Strand Road level crossing, extending in a westerly direction for approximately 2,670 metres and including two spurs, one in the vicinity of Chain Caul Road and one leading to Williams Yard and your clients' works; and
  • Railway No 2, commencing at a junction with Railway No 1 at a point to the west of the Lockside Road level crossing and extending in a generally north easterly direction for approximately 220 metres.
  • The proposed Order also includes other non-works provisions including powers to operate and use the railway for the carriage of passengers and goods and to sell or lease the railway with the consent of the Secretary of State.
  • As the Order does not include any development requiring a development consent, your clients have not submitted an environmental statement nor sought a planning direction from the Secretary of State.

Representations received

  • Two objections were received: from Mr & Mrs McGarry of 26 Victoria Quay and Mr & Mrs Davey of 28 Victoria Quay. There were eight letters of support. The objections have been considered under the written representations procedure set out in Rule 25 of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000 (SI 2000 No. 2190). The principal issues raised by the objectors and by the applicants and supporters of the scheme are summarised below, followed by the Secretary of State's consideration of these issues.

Summary of the Secretary of State's decision

  • The Secretary of State has decided to make the Order, with some minor drafting modifications. The reasons for his decision are given below.

The objections

  • The main ground of objection to the Order was the disturbance likely to be caused to residents of houses close to Railway No 1. Since the Petrofina operations ceased in 1992, redevelopment of Victoria Quay had brought new housing in close proximity to the line. Following the cessation of commercial freight use of the line in 1995, the residents had not envisaged any resumption of freight or other railway operations, which they considered would have an intrusive and detrimental effect on their amenities. It was argued that future train movements should be strictly controlled, the periods of operation should be limited and the motive power should be diesel locomotives. It was further argued that steam locomotives would present a fire hazard and, were they to be used, they should be adapted to minimise the risk. In their letter of objection, Mr & Mrs McGarry also cited agreements entered into between the then Preston Borough Council and developers in 1988 and 1996 of which, it was claimed, the residents had become beneficiaries upon purchase of their properties. Mr & Mrs McGarry contended that the agreements, which placed restrictions on the use of the railway, would be seriously compromised if the Order were to be made.

Support for the proposals

  • Eight letters of support were received. Total Bitumen and English Welsh & Scottish Railway Ltd supported the proposal for the benefits which would accrue to the operation of the bitumen processing plant at Preston Riversway. Total Bitumen had plans for substantial investment in the plant, as part of the rationalisation of their businesses, and the reinstatement of the rail system within the Riversway Estate was fundamental to the proposal. Railtrack (now Network Rail Infrastructure Ltd) and Lancashire County Council supported the proposal for the beneficial effects of the transfer of freight traffic from road to rail. The County and City Councils, the National Football Museum and the Museum of Science and Industry in Manchester all supported the proposal on grounds of the tourist potential, and therefore the economic benefit to the area, which would result from the associated development of a railway museum.

The Applicants' response

  • Your clients' response to the objections may be summarised as follows. They rejected the argument that the scale of operations envisaged would have serious adverse effects on local residents. Insofar as freight traffic was concerned, they contended that there would be environmental benefits for the area in bringing about a significant reduction in lorries using local roads, as well as helping to safeguard the future of a local employer. Diesel locomotives would normally be used for the movement of freight trains, although steam traction would be used for passenger trains. The proposed leisure railway operation, which would attract additional tourism to the area and benefit local businesses, would not be viable if the use of steam traction were ruled out. The railway was relatively level, the passenger trains would be lightly loaded and speed would be restricted to 15 mph. There would therefore be no reason for excessive noise and emission, as might be expected from heavy trains using powerful locomotives on steeply graded lines. For the same reasons there was unlikely to be a significant fire risk arising from the operation of steam locomotives. Your clients drew attention to their published community relations policy in which they stated their aim for the railway to be part of the heritage of the area and an important local amenity. They wished to ensure that it could be enjoyed by everyone without causing undue inconvenience to neighbours and those who live and work in the area.
  • Your clients had sought the opinion of Counsel on the terms of the agreements referred to by Mr and Mrs McGarry in their objection. Counsel's opinion was that the terms of the agreements were not enforceable by the objectors, if indeed they were of legal effect at all.

Representations of the Rail Regulator

  • The Rail Regulator expressed no view on the merits of the proposal, although he made a number of comments on the terms of the Order.

Secretary of State's consideration

  • Following his consideration of the arguments presented for and against the proposed Order, the Secretary of State has reached the conclusions set out below.
  • He notes that agreements were entered into in 1988 and 1996 between Preston Borough Council and developers relating to the development of land at Preston Riversway Docklands by, amongst other things, the construction of roads and the erection of dwellings. The agreements required the Council to consult with the developers prior to any decision being taken in respect of any proposed change in the level of traffic using the railway which is the subject of this proposed order, and not to permit any change in traffic levels without having due regard to the interests of the occupiers of the new dwellings.
  • From the evidence before him, it appears to the Secretary of State that once the dwellings to which the agreements relate were completed and sold the agreements themselves were of no further effect. He sees no evidence to suggest that any conditions or covenants relating to the operation of the railway were conveyed to the purchasers of individual properties. In any event, the Order does not provide for the setting aside or varying of any rights which might be claimed by adjoining property owners or others. Hence, the making of the Order would not preclude any person who believed their rights had been infringed by a resumption of the railway use from taking legal action to enforce any such rights.
  • Furthermore, it appears to the Secretary of State from the evidence that, although regular use of the lines which are the subject of this application ceased in 1995, they have never been formally abandoned. Although maintenance appears to have been minimal, there is no evidence of any action having been taken to prevent or inhibit their future use, and a resumption of rail traffic must have remained in prospect.
  • The Secretary of State notes that the objectors have not objected in principle to the resumption of railway use but are particularly concerned that:
    • steam locomotives should not be used, or their use should be subject to conditions to ensure the safety of properties near the line; and
    • passage of trains along the lines in question should be confined to the times specified in the earlier agreements between the Council and developers.
  • Insofar as the use of steam locomotives is concerned, the Secretary of State notes that the track is relatively free of gradients, that passenger train loads would be light, that the locomotives to be used would of the smaller type and that there would be a speed restriction of 15 mph. Having regard also to your clients' operational and community relations policies, the Secretary of State is satisfied that there would be no unacceptable effects of noise, vibration or emission from the trains upon those living near the lines, such as would justify refusing to make the Order. He also accepts that the development of a railway heritage centre, of which the use of Railways Nos 1 and 2 are an integral part, will encourage the development of tourism in Preston to the benefit of the local economy.
  • With regard to freight use, the Secretary of State considers that the transport of material to the bitumen processing plant by rail rather than by road will benefit the environment by bringing about a significant reduction in the use by lorries of local roads.
  • In all the circumstances, the Secretary of State concludes that there would be significant public benefits in making the Order which outweigh any adverse effects on local residents arising from the resumption of use of the lines. He does not consider that there is a compelling case for making the Order conditional as to the motive power or the times that the line can be used, particularly bearing in mind the detrimental effect this would have on the viability of the heritage railway operation. He is also satisfied with your clients' capacity to fulfil their obligations under the Order. The Secretary of State can therefore see no good reason why he should not make the Order applied for.

Secretary of State's decision

  • For the reasons given above, the Secretary of State has decided to make the Order, subject to some drafting amendments which do not affect the substance of the Order. The Secretary of State hereby gives notice under section 14(1)(a) of the TWA of this determination. A notice of the determination will shortly be published in the London Gazette, following which the Order will be made.
  • The circumstances in which the validity of the Secretary of State's decision may be challenged are set out in the note enclosed with this letter.

Yours faithfully,

Ellis Harvey
Head of the TWA Orders Unit