Scottish Law Commission (Discussion Papers)

BACKGROUND TO THE PROJECT

1.6 In response to the Law Commission’s consultation on its Tenth Programme of Law Reform, the Department for Transport suggested a project to review the legislation relating to level crossings. The suggestion stemmed from concerns by the Office of Rail Regulation (ORR) as the railway safety and economic regulator that the legislation concerning level crossings was in need of review.

1.7 ORR’s concerns were shared by others with an interest in level crossings. Before

the Department for Transport put forward the suggestion to the Law Commission, ORR undertook a consultation exercise with key stakeholders, who strongly supported the proposal for a review of the legislation. Many considered that the legislation was unclear, outdated, difficult to access and hard to understand. The overwhelming view was that a review should seek to consolidate, simplify and modernise the existing legislation.

1.8 In the spring of 2008, the Law Commission and the Scottish Law Commission discussed the proposal and agreed that, for two reasons, any project on level crossings would need to be undertaken jointly by both Commissions. First, much of the legislation governing level crossings applies throughout Great Britain. Second, the mainline railway network serves Scotland as well as England and Wales. The Law Commission also discussed the scope of the project with the Northern Ireland Law Commission and it was agreed that the project should not extend to Northern Ireland but that the Northern Ireland Law Commission should be kept informed of progress. The Commissions agreed therefore that in terms of geographical scope the project should relate to England and Wales, and Scotland. Following these discussions, the Law Commission included a project on level crossings in its Tenth Programme of Law Reform on the basis that it would be undertaken jointly with the Scottish Law Commission.⁷ It is also referred to in the Scottish Law Commission’s Eighth Programme of Law Reform.⁸

1.9 Early in the project, the Commissions realised that the project teams would require assistance from industry-led stakeholders with expertise in relation to the regulation and operation of level crossings. With that in mind, an advisory group was established to assist the project teams. Initially the group comprised representatives of the Department for Transport and other government departments, bodies involved in the safety regulation of the railways, such as ORR, the Rail Safety and Standards Board (RSSB), and other groups with an interest in level crossings, including the Heritage Railway Association and the National Farmers’ Union. An initial meeting was held in July 2008 to outline the scope of the project, discuss the main issues and invite assistance from members.

1.10 In January 2009, ORR hosted a seminar on level crossings to encourage discussion of the problems and how they might be resolved. Following the success of the seminar, the Commissions decided to expand the advisory group to include other interested bodies which had been represented at the seminar, such as the Ramblers Association and the Scottish Rights of Way and Access Society (Scotways) who are concerned about rights of way and access to the countryside.⁹ A further meeting of the advisory group and a separate meeting with key stakeholders took place in December 2009 when we discussed possible proposals for reform.

1.11 In addition, the teams have had meetings with ORR, the Department for Transport, Network Rail, RSSB, the Ramblers Association, Scottish Natural Heritage, Scotways and Transport Scotland, to discuss different aspects of the project. We are very grateful to our advisory group and key stakeholders. The feedback from these meetings has helped us to formulate the provisional proposals and questions for consultees set out in this consultation paper.

Responding to this consultation paper

1.12 In this paper we ask a number of questions and make a number of provisional proposals for reform of the law relating to level crossings. In doing so, we emphasise that the proposals represent our initial view about how the law might be reformed. We will be reviewing these proposals on the basis of the responses to this consultation paper. We welcome responses from all interested parties. Responses will be shared with the Department for Transport and ORR. Details of how to respond can be found on the inside front page of this consultation paper.

1.13 The next stage will be to produce and submit a report to the Lord Chancellor and also to the Scottish Ministers. Taking into account the responses we receive to this consultation paper, the report will contain our final recommendations with the reasons for them. A draft Bill, giving effect to our final recommendations, will also be included. At this point, an analysis of consultation responses will be published on our websites.¹⁰

HISTORICAL CONTEXT

Historical development: railways

1.14 The railways developed at a time of industrial growth when entrepreneurs benefited from investing in what was an increasingly popular mode of transport. The early railways were constructed and maintained by private companies, normally on the basis of Acts of Parliament known as “special Acts”.¹¹ Although statutory powers were not (and are not) necessary in law to construct or operate a railway, and some railways were (and are) constructed and operated without statutory authority, statutory powers were usually obtained in order to confer on the railway the benefits of incorporation and limited liability, powers of compulsory purchase of land and immunity from liability for public nuisance. In addition, the special Acts would contain provisions imposing responsibilities on the company in relation to matters such as the fencing of the line and building and maintaining bridges and level crossings. Many special Acts were passed during the nineteenth century when railways were being established throughout the country.

1.15 The promotion of private legislation, including railway special Acts, became a major part of Parliamentary business.¹² In order to ease the burden on Parliament, a number of public Acts were passed in an attempt to regulate the

¹⁰ www.lawcom.gov.uk and www.scotlawcom.gov.uk.

¹¹ An example of a special Act is available on our websites: www.lawcom.gov.uk and www.scotlawcom.gov.uk.

¹² According to the Chronological Table of Local Legislation (1996), vol 1, p vii, there were some 26,000 local Acts passed between 1797 and 1973, a time period that encompasses the vast majority of special Acts. We estimate that somewhere between a quarter and a third of all local legislation related to railways.

contents of private legislation. In relation to railways, such Acts were passed in the form of the Railways Clauses Consolidation Act 1845, Railways Clauses Consolidation (Scotland) Act 1845 and Railways Clauses Act 1863. The 1845 Acts provided model clauses which would automatically be deemed to be included in a special Act, unless the special Act expressly excluded or varied them. The 1863 Act worked the other way round – the model clauses could be expressly incorporated, but if the special Act was silent they were not included. It appears that after the 1845 Acts, the promoters of special Acts tended to include the clauses expressly, although that was strictly unnecessary. The clauses Acts, and in particular the 1845 Acts, are important in relation to the development of level crossings.

1.16 The nineteenth century also marked the beginning of public regulation of the railway network. A series of Acts, from the Railway Regulation Acts 1840 and 1842 to the Regulation of Railways Acts 1868, 1871, 1873 and 1889,¹³ demonstrate the statutory development of railway regulation during the 1800s. The 1840 Act, for example, provided for the first railway inspectors (known as HM Railway Inspectorate - HMRI) who were responsible for overseeing safety on the railways.

1.17 During the First World War, the Government took temporary control of the railways. After the War, the Government thought it necessary to intervene in the organisation of the railway industry. This led to the passing of the Railways Act 1921 which reorganised the individual private railway companies into four companies (often referred to as the “Big Four”). During the Second World War, the Government again took temporary control of the railways. Following the War, the general election of 1945 brought to power a government committed to nationalisation, and in 1947 the Transport Act nationalised the railways. However, by 1960, concern was growing about the economic viability of the railways. The 1963 report by Dr R Beeching, The Reshaping of British Railways,¹⁴ triggered the biggest changes to the railway network since its creation.¹⁵ The report concluded that a large number of stations and railway lines should be closed in order to achieve a more efficient and financially viable railway network. Roads were to be provided as an alternative for many of the railway lines that were closed.

1.18 In the early 1990s, privatisation was seen as a way of tackling falling revenue and

¹³ All of the Regulation of Railways Act 1871 has been repealed, as have most of the 1873 and 1889 Acts. The 1889 Act is an interesting example of how speedy law reform could be in the high Victorian era. It was the response to a catastrophic accident which occurred at Armagh on 12 June 1889 causing unprecedented loss of life. Six days later, on 18 June 1889, the President of the Board of Trade told the House of Commons that if the Inspector’s Report on the accident came to a certain conclusion he would introduce legislation (Hansard, (HC), 18 June 1889, vol 337, col 119). The Inspector, Maj-Gen C S Hutchinson, in his report on the accident dated 8 July 1889 did indeed come to that conclusion. The Bill was introduced into the House of Commons and given its first reading on 30 July 1889 (Hansard (HC), 30 July 1889, vol 338, col 1792) and a second reading on 2 August 1889 (Hansard (HC), 2 August 1889, vol 339, col 229). It had passed all its Parliamentary stages by 28 August 1889 (Hansard (HC), 28 August 1889, vol 340, col 818) and received Royal Assent on 30 August 1889.

¹⁴ British Railways Board, The Reshaping of British Railways, Part 1 Report (1963). Available at: http://www.railwaysarchive.co.uk/documents/BRB_Beech001a.pdf (last visited 27 June 2010).

¹⁵ Christian Wolmar, Fire and Steam – How the Railways Transformed Britain (2008) p 283.

making the railways more efficient and competitive.¹⁶ However, the mechanics of privatisation were inevitably difficult. It was seen as undesirable simply to privatise the existing railways as a single private sector monopoly. Rejecting the creation of integrated regional railway companies, the Government opted to separate ownership of the track and stations from the running of train services.

1.19 As regards regulation of the railways, the Railways Act 1993 established the Rail Regulator with powers of enforcement and investigation but not safety regulation. Subsequently the Transport Act 2000 set up another body - the Strategic Rail Authority (SRA) - primarily to promote the use of the railways.

1.20 On 1 April 1994, a single company, Railtrack plc, took over the management of the national railway infrastructure (track, signalling, stations, tunnels, bridges, level crossings, depots and certain other assets) from the British Railways Board.¹⁷ Train operating companies (TOCS) and freight operating companies (FOCS) took over running the services.

1.21 However, in October 2001 the Government placed Railtrack plc into railway administration.¹⁸ In October 2002, the share capital of Railtrack plc was acquired by a new company, Network Rail Holdco Ltd – a wholly-owned subsidiary of Network Rail Limited. Railtrack plc was later renamed Network Rail Infrastructure Limited and was registered as a private company. Network Rail Infrastructure Limited became responsible for the management of the mainline railway infrastructure. However, Network Rail Infrastructure Limited is not responsible for the entire railway network; some parts of it are owned by heritage railway companies and commercial organisations.

1.22 Following a series of fatal rail accidents at Ladbroke Grove, Hatfield, Potters Bar and Southall, the Government introduced a number of reforms to the system for regulating the railways and several new railway bodies were created. The Railway and Transport Safety Act 2003 established the Rail Accident Investigation Branch (RAIB),¹⁹ and abolished the role of Rail Regulator, transferring its functions to the newly established Office of Rail Regulation (ORR).²⁰ The Railways Act 2005 also transferred certain functions to ORR, the

¹⁶ The privatisation of the railways came at a late stage in the programme of denationalisation implemented by successive governments from 1979: the Department of Transport’s White Paper, New Opportunities for the Railways: The Privatisation of British Rail, was published in 1992 - (1992) Cm 2012.

¹⁷ The British Railways Board was established by the Transport Act 1962. By the end of 1997 it had been divested of all its functions relating to railway operation. The remaining functions of the British Railways Board are now discharged by BRB (Residuary) Ltd.

¹⁸ Railway administration is a special form of insolvency designed for use by railway companies. It was created by the Railways Act 1993 and the new procedure was used for the first time when Railtrack plc was placed into administration. The purpose of railway administration is to allow for the continuation of the operations of the railway network pending its transfer to a new entity.

¹⁹ Railway and Transport Safety Act 2003, s 3.

²⁰ Railway and Transport Safety Act 2003, s 16.

Department for Transport and Scottish Ministers.²¹ Although the functions initially transferred to ORR did not include the regulation of railway safety, the Department for Transport proposed the transfer of responsibility for railway safety (including level crossings) from the Health and Safety Commission/Health and Safety Executive (HSC/HSE) to ORR.²² This recommendation was implemented by the 2005 Act,²³ read together with the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006²⁴ and the Memorandum of Understanding between the HSE and ORR.²⁵

1.23 A consequence of transferring the HSC/HSE’s railway safety functions to ORR was that HM Railway Inspectorate (HMRI) was also transferred from the HSE to ORR. In May 2009, the body known as “HM Railway Inspectorate” ceased to exist when a new Railway Safety Directorate was created within ORR. HMRI now forms part of that Directorate, although the individual inspectors are known as HM Inspectors of Railways.²⁶

1.24 Accordingly, under the current arrangements the various responsibilities for railway safety and investigation of accidents are divided between ORR, including the Railway Safety Directorate which is part of ORR, and the RAIB.²⁷ A detailed explanation of the roles and responsibilities of these bodies is provided in the glossary in Appendix C. The current regime regulating health and safety at level crossings is described further in Part 5.

Historical development: level crossings

1.25 From the early days of the railways, gates and gatekeepers provided a means of protection at public level crossings. By the end of the 1830s it was clear that general rules were needed to bring about standardisation in relation to safety and to speed up the process of private legislation for individual railway lines. The Highway Act 1835 introduced safety requirements where railways crossed “public carriage roads” on the level. The Highway (Railway Crossings) Act 1839 extended the requirements of the 1835 Act so as to include turnpike roads and also highways in Scotland. The 1835 Act was the first Act to regulate level crossings. It required that gates be provided and “good and proper persons” to operate them. Section 1 of the 1839 Act provided for gates across turnpike roads and gatekeepers to open and shut them. The 1839 Act also gave rise to the

²¹ The Railways Act 2005, s 1 and sch 1 transferred the Strategic Rail Authority’s consumer protection functions to ORR, while its strategic and financial functions were passed to the Department for Transport and Scottish Ministers. The 2005 Act, s 5 also transferred certain functions to Scottish Ministers in relation to railways in Scotland.

²² Department for Transport, The Future of Rail (2004) Cm 6233.

²³ Railways Act 2005, s 2 and sch 3.

²⁴ The Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006, SI 2006 No 557.

²⁵ Available at: http://www.hse.gov.uk/aboutus/howwework/framework/mou/orrmou.pdf (last visited 27 June 2010).

²⁶ Inspectors are referred to formally as HM Inspectors of Railways as stated in their warrants. Corporately, they are now referred to as ORR inspectors within the Railway Safety Directorate.

²⁷ The Railways (Accident Investigation and Reporting) Regulations 2005, SI 2005 No 1992, sets out the roles and responsibilities of the RAIB and ORR.

question of the relative priority of road and rail traffic at level crossings. Many of the special Acts provided that gates should be kept shut across the railway.²⁸ However, as trains became faster and more frequent, the practice of closing the gates across the railway line was found to cause delays. The problem was remedied by the Railway Regulation Act 1842 which provided for gates to be kept closed across roads instead of across the railway.

A traditional level crossing on a heritage railway: Blue Anchor station on the West Somerset Railway.

Photographer: Adrian Copley. This work is licensed under a Creative Commons Licence: http://creativecommons.org/licenses/by-nc/3.0/.

1.26 By the start of the twentieth century, the railway network was more or less complete and the number of level crossings in existence was sufficient to accommodate the amount of road traffic. However, by the early 1950s there was an increasing awareness of the need to modernise the system of gated level crossings. It had become clear that safety was no longer the only consideration. The cost of employing gatekeepers had risen dramatically and it was proving difficult to find reliable people to be gatekeepers. Moreover, the operation of gated level crossings often led to substantial delays for road users. The Ministry of Transport concluded that the solution lay in taking advantage of modern technological developments.²⁹

1.27 The British Transport Commission Act 1957 provided the necessary legislative basis for automatic lifting barriers without attendants. Section 66(2) of the 1957

²⁸ Stanley Hall and Peter van der Mark, Level Crossings (2008) p 7.

²⁹ Level Crossing Protection – A report by officers of the Ministry of Transport and Civil Aviation and of the British Transport Commission (1957) (the “McMullen Report”) appendix

1. Available at: http://www.railwaysarchive.co.uk/documents/MoT_LevelCrossing1957.pdf (last visited 27 June 2010).

Act³⁰ provided that an order could require the Commission to provide:

…such barriers, lights, traffic signs and automatic or other devices and appliances and may lay down such other conditions and requirements to be observed by the Commission in relation to such level crossing and the use and operation thereof as shall in the opinion of the Minister be necessary or desirable for the protection safety and convenience of the public...

1.28 The 1957 Act thus sought to promote the interests of both safety and convenience in relation to level crossings. Section 124 of the Transport Act 1968³¹ and later the Level Crossings Act 1983 recognised these complimentary interests. This balance between safety on the one hand and convenience on the other is something which we aim to replicate in our proposals for reform.

1.29 There followed a modernisation plan during the 1960s and 1970s which resulted in changes to many crossings. Traditional wooden gates were replaced by full-width, lightweight metal barriers, initially controlled from signal boxes, but more recently, remotely operated with CCTV. Automatic half-barriers (AHBs) were installed at some level crossings,³² and locally monitored automatic open crossings (AOCLs)³³ and remotely monitored automatic open crossings (AOCRs)³⁴ were also introduced. At the same time, many railway lines were closed. The overall result was a reduction in the number of level crossings and the modernisation of many of those which remained.³⁵

1.30 The introduction of AHBs in the early 1960s, and subsequently of AOCLs and AOCRs, “represented a major shift in the philosophy of railway safety”.³⁶ The nineteenth century safety regime for level crossings, with its requirement that the railway provide both gates and gatekeepers, meant that control of level crossings over public roads was vested exclusively in the railway operator. Safety at level crossings over public roads was therefore the sole responsibility of the railway operator, and was thus subject to high standards which were monitored and regulated by the Railway Inspectorate. Moreover, level crossings were often integrated with the railway signalling system. At the same time, the railway’s operational and safety requirements were given priority. The effect of this was that, although level crossings on public roads were very safe, their operation

³⁰ Section 66 of the 1957 Act was repealed by the Level Crossings Regulations 1997, SI 1997 No 487, reg 2.

³¹ Section 124 of the Transport Act 1968 gave the Minister of Transport power to make an order to require the British Railways Board to provide, maintain and operate “…such lifting or other barriers, lights, signs or other devices or appliances” at any level crossing across any road other than a public carriage road as the Minister considered “necessary or desirable for the protection and convenience of the public”.

³² See page x, after the Table of Photographs at the start of this consultation paper, for a photograph of an automatic half barrier crossing.

³³ See pages 22 and 25 for photographs of locally monitored automatic open crossings.

³⁴ See page 15 for a photograph of a remotely monitored automatic open crossing.

³⁵ First Report of the Working Party to the National Level Crossings Safety Group

(September 2006) p 3. Thus in 1953 there were 4,505 level crossings on public roads, but by 1967 there were 2,425, and by 1979 there were 1,960.

³⁶ Stanley Hall and Peter van der Mark, Level Crossings (2008) p 35.

often led to substantial delays for road users. However, the introduction of AHBs, AOCLs and AOCRs meant that the operational and safety requirements of the railway ceased to have priority, regard now being had to cost and, as the 1957 and 1968 Acts made clear, also to the “convenience” of road users. Furthermore, the technical changes brought about by the automation of level crossings shifted more responsibility onto the road user for avoiding collisions.³⁷

1.31 The situation was very different for level crossings over private roads, footpaths or bridleways. Here, the gates were neither manned nor integrated with the railway signalling system. Unless an order under section 124 of the Transport Act 1968 Act had been made, responsibility for ensuring that it was safe to cross rested with the road, footpath or bridleway user. The only safety devices at private level crossings, apart from an unlocked gate, were warning signs on the road or path and whistle boards on the railway reminding train drivers to sound the train’s whistle (or nowadays blow the horn) when approaching the crossing.

The modern regulatory regime

1.32 Prior to the Health and Safety at Work etc Act 1974 (HSWA 1974), which makes general provision relating to safety in the workplace, safety provision for the railways including track and level crossings was governed primarily by railway-specific provisions.³⁸

1.33 HSWA 1974 introduced a new general system to protect health and safety, both of workers and others affected by undertakings. The Act combined a set of general duties with a power to make detailed regulations for specific industries. A set of pre-existing industry-specific Acts and regulations were also brought into the system of enforcement introduced by the Act. The intention was that these provisions would be progressively replaced by regulations under the Act.

1.34 While the general duties under HSWA 1974 applied to railway employers, the railway specific legislation, unlike that governing other industries, was not initially caught by the Act’s enforcement regime. This meant that legislation like the Highway (Railway Crossings) Act 1839, the Railway Regulation Act 1842 and the Regulation of Railways Act 1868 remained outside the scope of HSWA 1974 and operated in parallel with it. This changed following the coming into force of section 117 of the Railways Act 1993, when these provisions were deemed to be part of the 1974 Act system for enforcement purposes.

1.35 As a result of section 117 of the 1993 Act, the HSC/HSE had jurisdiction over the monitoring and enforcement of railway-specific safety legislation under the 1974 Act. In addition to the Acts mentioned above, this included orders under section 66 of the British Transport Commission Act 1957, section 124 of the Transport

³⁷ For example, AHBs, AOCLs and AOCRs are not integrated or interlocked with the railway signalling system and are operated automatically by the passing train. There is therefore nothing to prevent a train running under “clear” signals and colliding with a vehicle which is on the level crossing, something which was impossible on a traditional level crossing where the gates were interlocked with the signalling.

³⁸ For example, the Highway (Railway Crossings) Act 1839 and the Regulation of Railways Acts 1868, 1871, 1873 and 1889.

Act 1968³⁹ and section 1 of the Level Crossings Act 1983.

1.36 The Level Crossings Act 1983 introduced specific provision which enabled the Secretary of State to make orders (“level crossings orders”) specifying new or updated protective arrangements at individual, mainly public, level crossings. As a result of section 117 of the Railways Act 1993, individual level crossing orders under the 1983 Act became directly enforceable by HSC/HSE, though their powers were devolved to HM Railway Inspectorate (now the Railway Safety Directorate of ORR).

1.37 The Transport and Works Act 1992⁴⁰ introduced provisions governing the use and protection of private level crossings, namely those crossing roads to which the public does not, as a matter of fact, have access. The Secretary of State was given the power under section 52 of the Act to make Regulations concerning the type of traffic signs to be used at such crossings, as the type of signs was not covered by road traffic legislation. This power was exercised in the Private Crossings (Signs and Barriers) Regulations 1996⁴¹ which specify the signs to be used at private level crossings.

The manually controlled (full) barrier level crossing (MCB) operated by the signalman in the adjacent signal box at Foxton station on the Hitchin to Cambridge line: note the flashing lights.

Credit: Rail Accident Investigation Branch.

³⁹ Section 124 of the Transport Act 1968 was repealed by the Transport and Works Act 1992 (as regards England and Wales) and by the Level Crossings Regulations 1997, SI 1997 No 487, as regards Scotland.

⁴⁰ Part 1 of the 1992 Act (which introduced the order-making procedure for authorising railway works) in effect applies to England and Wales only. However, most of the remaining provisions of the 1992 Act, including those relating to private crossings, apply to Scotland as well as to England and Wales.

⁴¹ The Private Crossings (Signs and Barriers) Regulations 2006, SI 1996 No 1786.

SCOPE OF THE PROJECT

1.38 This section first considers what a railway is and explains the definition we have chosen to use in this consultation paper. Then we consider the definition of a level crossing and the various ways in which level crossings can be classified.

What is a railway?

1.39 There are several legal definitions of railway. The definition that comes closest to a general one is that to be found in section 67(1) of the Transport and Works Act 1992 and (in identical terms) in section 23 of the Transport and Works (Scotland) Act 2007:

“Railway” means a system of transport employing parallel rails which–

(a)

provide support and guidance for vehicles carried on flanged wheels; and

(b)

form a track which is either of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),

but does not include a tramway.

This definition includes those railways sometimes described as “light railways”.⁴²

1.40 The definition of “railway” in the 1992 and 2007 Acts excludes tramways. “Tramway” is defined in section 67(1) of the 1992 Act and section 23 of the 2007 Act,⁴³ the essential element in the definition for present purposes being that a tramway is something “laid mainly or wholly along a street or in any other place to which the public has access”.

1.41 We are inclined to think, however, that these merely legal definitions should not be determinative in the context of a project relating to level crossings and that what is more important is the physical or functional aspect of a railway. There are, after all, what most people would think of as railways in the popular sense of the word which run along the public highway.⁴⁴ And many modern metro, tramway and light railway systems have two types of tracks:⁴⁵

⁴² There does not appear to be a statutory definition of the term “light railway”; there is no such definition in the Light Railways Act 1896 as amended by the Light Railways Act 1912. Some guidance as to the typical characteristics of such a railway can, however, be found in section 28 of the Regulation of Railways Act 1868. This imposed certain restrictions as to speed and weight that were to be taken to apply in order that a railway be classed as “light”. In simple terms a light railway may be said to mean a railway which operates with lighter equipment and in most cases lower speeds than other types of railway. There may therefore be some overlap between light railways and tramways. The 1896 Act has been repealed as regards England and Wales and now applies to Scotland only. However, section 22 of the Transport and Works (Scotland) Act 2007 provides that no further orders can be made by Scottish Ministers under the Light Railways Act 1896.

⁴³ A similar definition is used in the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006, SI 2006 No 557.

⁴⁴ Examples are the Weymouth Harbour branch (still in place though currently not used) and the new Welsh Highland Railway extension through the streets of Porthmadog.

⁴⁵ For example, in Croydon.

(1)

those tracks, often in central areas, which run alongside other traffic on roads to which the public has access; and

(2)

those tracks, often in more outlying areas, which are segregated from the road, running separately from any other traffic and sometimes alongside railway lines.

1.42 In England and Wales, the former are referred to as “street tramways” and the latter as “tramroads”.⁴⁶ These terms do not appear to be used in Scotland, although in practice such categories of tramway exist.

1.43 We tend to the view that, for the purposes of this project, the important distinction is not between “railways”, “light railways”, “tramways” or “tramroads” but between those systems (or parts of systems) where the tracks are segregated from the public and other traffic and those systems (or parts of systems) where the tracks run alongside other traffic on roads to which the public has access. We propose therefore that only the former should fall within the scope of the project and that the latter should not. We also limit “railways” in this project to those where the gauge is over the statutory minimum of 350mm (approximately 13 ¾”).

1.44 We would welcome the views of consultees on whether, for the purposes of our proposals, “railway” should be defined as a transport system where the tracks are segregated from other traffic.

1.45 There are of course tramways or parts of tramways (such as in Croydon and the proposed Edinburgh system) where the tracks run along a road to which the public has access which is itself crossed by another road to which the public has access. On our approach, such systems will not fall within the scope of this project. We suggest there is good reason why they should not, for such intersections are not at present regulated by the kind of barriers and lights one finds at level crossings but (if at all) by ordinary traffic lights.

A taxonomy of railways

1.46 Thus defined, railways can be categorised in various ways in their physical or functional aspects. For present purposes it is relevant to bear in mind that:

(1)

the railway may be standard gauge (4’8½” or 1,435 mm) or narrow gauge (for example, 15” or 381mm, 1’11⁵»8” or 600 mm, or 2’5⁷»8” or 760 mm);

(2)

the railway may be single track, double track, quadruple track or occasionally even more;

(3)

the railway line may carry only a sporadic and infrequent freight service, a service of no more than three or four trains a day each way, or a frequent service of three, four, or more trains an hour each way; and

⁴⁶ Transport and Works (Model Clauses for Railways and Tramways) Order 2006, sch 2, part 1, SI 2006 No 1954. This Order was made under the Transport and Works Act 1992 and applies in England and Wales only.

(4) the railway may be part of the national rail network operated by Network Rail, or part of the Transport for London network (formerly London Underground), or part of a Metro tramway or light railway system, or a private industrial, dock or military system,⁴⁷ or a privately owned “heritage railway”⁴⁸ open to the public, or even a privately owned “hobby” railway which is not open to the public.

What is a level crossing?

1.47 A level crossing is a place where a railway (as we have defined that term) is crossed by another type of way on the same level. We exclude from the scope of this project crossings on the level, sometimes called flat crossings, where a railway is crossed by another railway on the level.⁴⁹ Such crossings are functionally entirely different from level crossings, being under the exclusive control of the railways involved and protected by the ordinary railway signalling systems.

A taxonomy of level crossings

1.48 There are several ways in which level crossings can be classified. For present purposes it is relevant to consider them first by reference to their physical features, then by reference to users of level crossings, and then by reference to the legal nature of level crossings.

Physical features

1.49 At one extreme, a level crossing may be no more than a footpath or bridleway crossing a railway, existing as a line on a map with no physical manifestation of any sort between the gates or stiles that separate the railway from the adjoining land and where the pedestrian or rider has to walk across the ballast. At the other extreme, a level crossing may be a full-width macadamised road crossing the railway. There are many variants in between, varying as to both the width of the “way” and the materials from which it is constructed. The level crossing may or may not be protected by gates or barriers or by warning signs, lights or bells.

⁴⁷ For example, the Bicester Military Railway.

⁴⁸ “Heritage” railways preserve traditional operating and signalling systems. For such railways, the preservation and operation of traditional level crossings is therefore important.

⁴⁹ For example, the flat crossing at Newark where the Nottingham to Lincoln line crosses the East Coast Main Line and the new flat crossing at Porthmadog where the narrow gauge Welsh Highland Railway crosses the standard gauge Cambrian line.

The level crossing in a busy urban setting: the manually controlled (full) barrier level crossing operated remotely by a signalman and monitored by CCTV (MCB-CCTV) at Lincoln High Street.

Photographer: Chris McKenna.

1.50 Within the rail industry, crossings are categorised according to whether or not they have equipment to protect users. Crossings can be categorised as “active” or “passive”. “Active” crossings (also called “protected”) are those at which the user is given warning of the approach of a train by equipment provided at the crossing. This type of crossing can be full-barrier, half-barrier, without any barriers, automatic or manual, with local or remote control.

1.51 “Passive” crossings are those at which generally there is no warning of an approaching train and the user must determine if it is safe to cross. However, in some cases whistle boards are installed near crossings requiring train drivers to sound the horn or blow the whistle to warn pedestrians and others of an approaching train. Passive crossings may be open crossings (with no road traffic signs and no barriers or gates) or user-worked crossings or footpath and bridleway crossings where the user has to be satisfied that it is safe to cross. User-worked and pedestrian or bridleway crossings usually have gates (originally installed to prevent access by animals to the track). At some passive crossings telephones may be provided to enable the user to seek permission from the railway operator before using the crossing.

1.52 In 2009, there were 3,950 public level crossings in use on the mainline network, comprising 1,747 on public vehicular roads, 2,073 on public footpaths, and 130 on public bridleways. 2,114 public level crossings had special protection measures, such as whistle boards and miniature warning lights, to indicate that a train was approaching; 1836 crossings had no special protection.

1.53 There were 2,642 private level crossings in use on the mainline network in 2009, of which 2,383 were on private vehicular roads, 248 were on private footpaths, and 11 were on private bridleways. 228 private level crossings had special protection measures and 2,414 had no special protection.⁵⁰

1.54 A total of 71 level crossings, both public and private, were closed in 2009.

Users of level crossings

1.55 By definition, the users of every level crossing fall into two classes: those using the railway and those using the non-railway way.

1.56 In general it is motorists and pedestrians, rather than train crew and passengers, who are most likely to be killed or physically injured as a result of a collision at a level crossing. But a train derailment or a collision between a train and an unusually heavy vehicle⁵¹ can result in multiple fatalities to a train’s passengers and crew.

1.57 It also needs to be borne in mind that the drivers of modern trains, placed in driving cabs at the front, are particularly vulnerable. A number of train drivers have been killed in collisions at level crossings even where there were no passenger fatalities. Furthermore, train drivers and others can suffer serious psychological or psychiatric injury after witnessing an accident at a level crossing.

1.58 So far as users of the non-railway way are concerned, it is important to bear in mind that there are many types of user and that the different types of level crossing may in the nature of things need to accommodate different types of use. Thus it is necessary to distinguish between the different needs of, for example, motorists, pedestrians, cyclists, horse-riders, those with animals (which may be a pet dog or a herd of cattle), those with large or unusual vehicles or loads, and those with smaller equipment (for instance, push-chairs, shopping trolleys, mobility equipment).

1.59 It is also important to bear in mind the needs of disabled people and those with special or unusual mobility difficulties, for example, elderly people (who may move more slowly than younger people or who may have physical difficulties in using steps or an un-metalled crossing) or those whose vision or hearing is impaired. We discuss disability and accessibility in Part 3.

Legal rights

1.60 More central for the purposes of this project is the system of classification based upon the legal nature of the crossing. Distinctions can be drawn between those crossings over which there is a public right of way, those over which there is a private right of way and those over which there is no right of way at all.

⁵⁰ Network Rail’s level crossings census (2009). These figures do not include heritage railways. The total number of level crossings is estimated in paragraph 1.1 above at 7,5008,000 to include an estimated 1,000-1,500 level crossings on heritage railways.

⁵¹ As at Hixon in January 1968.

“The largest single risk of catastrophic train accident on Britain’s railways” – the aftermath of the collision in 1968 between an express train and a heavy road vehicle on the automatic half-barrier level crossing (AHB) at Hixon in Staffordshire.

Credit: Mirrorpix.

PUBLIC LEVEL CROSSINGS

1.61 These occur where the railway is crossed on the level by a way over which a public right of way or public right of passage exists. The right may be a right to pass on foot (a footpath), a right to pass on horseback (a bridleway) or a right to pass with vehicles.

PRIVATE LEVEL CROSSINGS

1.62 Level crossings over which there are private rights of way are customarily categorised as being either “accommodation” or “occupation” crossings.

1.63 Accommodation crossings came into existence where the building of the railway bisected a piece of land in single ownership. This made access to each parcel of land a problem for the landowner. The railway company established by the special Act authorising the construction of the railway was required by statute to create sufficient crossings to enable an owner or occupier of land – often a farmer and/or his or her tenants – to access the land on either side of the railway line.⁵²

1.64 As regards occupation crossings, though the meaning here is more obscure, it can be said that such a crossing is one over an occupation road. However, that does not help a great deal, for although the term “occupation road” appears in early statutes in relation to England and Wales, it is not a legal term of art and the term appears altogether absent from Scottish use. Perhaps the best one can say is that an occupation crossing occurred where the railway crossed a private road or way which served a farm, hamlet or village. We think that normally the private road or way would have a pre-existing right of way over it. However, it may be that a crossing could properly be described as an occupation crossing where there had been, before the railway bisected the road or way, no right of way separate from the owner’s interest. There would, of course, be a right of way of some sort across the crossing in this situation, once the railway was built.

1.65 Some of these “accommodation” and “occupation” rights can be seen as implied solely from operation of the special Act which may have incorporated the relevant model clauses. We think that such rights are best described as “statutory rights of way” and therefore such level crossings should be categorised as “statutory rights of way crossings”. These rights of way were not created by the special Acts as public rights of way but were intended for the use of the adjacent landowner. However, we discuss in Parts 11 and 12 whether such rights may become public rights of way by operation of the law of prescription.

1.66 In other cases there was a new easement or servitude, reserved in the conveyance of the land to the railway company at the time of construction of the railway. In the first case, where the easement or servitude was a new one, it might have been created as a result of the need to accommodate the landowner under the special Act, but nevertheless its legal effect relied on the fact that it was reserved as an easement or servitude. Therefore, although created for

⁵² The obligation to provide a crossing was imposed by the Railways Clauses Consolidation Act 1845, s 68 or in relation to Scotland, the Railways Clauses Consolidation (Scotland) Act 1845, s 60, insofar as these provisions had not been excluded or varied by the relevant special Act.

accommodation purposes, it is not merely a statutory right of way. Alternatively, a crossing might have been created as a result of the fact that there was a preexisting private right of way before the construction of the railway. In this case, the crossing was necessary to preserve the pre-existing right. In both cases the right of way across the railway should be considered an easement or servitude right of way. We therefore suggest that such crossings should be termed “easement or servitude crossings”.

1.67 It seems more appropriate, therefore, to use a taxonomy for private level crossings based on the legal nature of the right of way across the railway, if such a right of way exists. We therefore classify private level crossings according to the rights which exist over them, as follows:

(1)

those crossings over which there is a statutory right of way (“statutory rights of way crossings”); and

(2)

those crossings over which there is an easement or servitude (“easement or servitude crossings”).

1.68 Under this taxonomy both categories can be seen as accommodating those whose land or private rights of way have been interfered with as a result of the creation of the railway.

1.69 Consequently, though frequently used in railway literature, the terms “accommodation crossing” and “occupation crossing” do not seem helpful in classifying level crossings. Accommodation crossings might be either statutory rights of way crossings or easement or servitude crossings, so the term is not useful as a legal category. We suggest that “occupation crossing” is both insufficiently precise to stand as a legal category and in any event is subsumed in easement or servitude crossings.

1.70 As we mention above, the Level Crossings Act 1983 introduced a power to make orders for the protection of individual, mainly public level crossings. However, in relation to England and Wales, the 1983 Act applies rather differently than in Scotland. As a result of the definition of “road” in section 1(11), the 1983 Act applies to level crossings in England and Wales to which the public has legitimate access as a matter of fact. We are concerned with such crossings in this project. However, the definition of “road” in relation to Scotland is narrower and as a result the 1983 Act does not apply in the same way. This is considered in more detail in Part 5.

LEVEL CROSSINGS AT WHICH DIFFERENT RIGHTS OF WAY CO-EXIST OR EXIST IN CLOSE PROXIMITY

1.71 In many instances two different types of crossing co-exist at the same place, for example, where there is a private road and an adjacent public footpath which are crossed by the railway line. These are treated in law as two separate crossings, one private and the other public. There may also be a situation in which a single way crossed by a railway is simultaneously public and private. For example, a railway may be crossed on the level by a way over which the public has a right of way on foot only, though the local farmer may have a vehicular right over the same way entitling him to cross by foot or, for example, by tractor.

1.72 It follows from the fact that in such cases there are two separate legal rights that the public right could be extinguished whilst the private right remained; conversely, the private right could be extinguished whilst the public right remained. This would apply regardless of whether the scope of the public and private rights was different, as in the above example, or whether they were identical. It is possible for a public right of passage on foot and a private right of passage on foot to co-exist. In such a case, either could be extinguished whilst the other remained intact.

1.73 Similarly, in relation to private level crossings, there could be circumstances in which both an easement or servitude and a statutory right of way co-exist over the same crossing. For example, if there was an express grant of an easement or servitude over a pre-existing statutory right of way, or if an easement or servitude has arisen by prescription.

1.74 We consider these issues in more detail in Parts 11 and 12.

LEVEL CROSSINGS WITH NO RIGHT OF WAY

1.75 Usually the way which crosses the railway is either a public or a private right of way (or in some cases both). However, we must also consider the situation where there is use of a level crossing even though there is no right of way over the way. This may arise, for example, where the railway operator provides a crossing over the railway, often at a station, for the use of railway employees carrying out works (sometimes called “barrow crossings”). It seems unlikely that the public will commonly have lawful access to such crossings. However, although track/railway owners are under no legal obligation to permit the public to use such crossings, they may allow or tolerate their use.⁵³ In England and Wales, these crossings fall within the scope of the Level Crossings Act 1983 and therefore they are covered by our proposals.⁵⁴

1.76 Accordingly, we take the view that the project should cover the following types of crossing:

(1)

public crossings where the railway is crossed by a footpath, a bridleway, and/or a road/highway;

(2)

private statutory rights of way crossings;

(3)

private easement or servitude crossings; and

(4)

in England and Wales, track/railway owner crossings in cases where the public has legitimate access over them as a matter of fact.

1.77 However, we would welcome consultees' views on the scope of the project in respect of the types of crossing covered.

⁵³ Thus in Scotland, under a pilot programme in 2003 Network Rail allowed members of the public to use 20 private crossings which had been for the use of authorised users only.

⁵⁴ As mentioned above, the position in Scotland is different and is discussed further in Part 5.

STRUCTURE OF THE CONSULTATION PAPER

1.78 In Part 2 we discuss how devolution both as regards Scotland and Wales affects responsibilities for railways, roads and safety. We also discuss relevant differences in the law as between England and Wales, and Scotland. In Part 3, we consider disability and accessibility issues.

1.79 Part 4 looks at how level crossings were, and are, created. Part 5 sets out the current system for regulating safety at level crossings. In Part 6, we turn to the legal mechanisms for closing level crossings. Part 7 considers the case for reform. Part 8 contains our proposals and questions for consultees on possible reform as regards the regulation of safety and closure of level crossings.

1.80 One of the features of this project has been the very broad range of law that is engaged when considering level crossings. Parts 9 and 10 deal with relevant aspects of planning law in England and Wales, and Scotland respectively. Parts 11 and 12 deal with rights of way in England and Wales, and in Scotland respectively, while Part 13 deals with criminal offences. Finally, Part 14 considers issues relating to signs and the Highway Code. We provide a summary of our provisional proposals and consultation questions in Part 15, while a number of appendices provide additional relevant information. Further appendices are to be found on our websites.⁵⁵

1.81 Colour photographs have been included throughout this consultation paper to illustrate the various types of level crossing to which we refer and their surroundings. Alternatives to colour photographs were considered, but none of these adequately communicated the points raised in this consultation paper – for instance, it became clear that only colour photographs could effectively display the warning lights, signs and barriers at level crossings.

1.82 We have published an assessment of the economic impact of the changes proposed in this consultation paper, which can be found on our websites.

1.83 We welcome consultees’ views on the economic impact of the proposed reforms.

LEGISLATIVE COMPETENCE

1.84 The division in terms of the Scotland Act 1998 between those matters that fall within the legislative competence of the Scottish Parliament and those matters that are reserved to the UK Parliament is of potential significance in relation to the implementation of the Bill giving effect to the recommendations arising from the project. Insofar as the Bill annexed to our subsequent report will cover matters which fall within the legislative competence of the Scottish Parliament, it would be for the Scottish Parliament to decide whether to grant a legislative consent motion giving its consent to the inclusion of those matters in a Bill for introduction in the UK Parliament. Alternatively the Scottish Parliament might wish to legislate itself on such matters as regards Scotland. We discuss devolution issues further in Part 2.

1.85 Furthermore, any legislation we eventually recommend would, of course, need to comply with the European Convention on Human Rights.

⁵⁵ www.lawcom.gov.uk and www.scotlawcom.gov.uk.

INTRODUCTION

2.1 This Part considers the current devolution settlements in Scotland and Wales. It also outlines those areas in which Scots law differs from that in England and Wales and which need to be taken into account when considering our policy approach to reform.

The automatic open (ungated) locally monitored level crossing (AOCL) at Garve station
on the Inverness to Kyle of Lochalsh line seen from the hillside.
Photographer: John Furnevel.

SCOTLAND

2.2 The project needs to take account of differences in both public and private law as between England and Wales, and Scotland. From a public law perspective, much of the legislation relating to railways and to level crossings applies similar provisions throughout Great Britain. However, differences in relation to highways/roads law, planning law, criminal law and statutory rights of access to land as between England and Wales, and Scotland, must be considered. From a private law perspective, the most important differences arise in relation to property law.

2.3 First, we discuss the matters reserved to the United Kingdom Parliament in terms of Schedule 5 to the Scotland Act 1998 which are of potential relevance to the level crossings project. Secondly, we identify relevant areas in which Scots law differs from that in England and Wales, and areas in which the Scottish Ministers have separate though broadly equivalent powers to those of the Secretary of State.

Background to the reserved/non-reserved divide

Legislative competence

2.4 Whilst section 28(1) of the Scotland Act 1998 confers a general power on the Scottish Parliament to enact legislation, this is qualified by section 29, which reserves certain matters to the United Kingdom Parliament. Section 29(2) defines what is referred to as the “legislative competence” of the Scottish Parliament with reference to a number of grounds on which a provision in an Act of the Scottish Parliament is outside that competence. According to section 29(2)(b), one such ground is that the matter is reserved to the United Kingdom Parliament. Matters that are so reserved are specified in Schedule 5 to the 1998 Act. Section 29(3) of the 1998 Act provides that:

For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

2.5 Any matter that is not expressly reserved in terms of Schedule 5 falls within the legislative competence of the Scottish Parliament, subject to the possible application of any of the other restrictions set out in section 29(2), as read with Schedule 4.¹

Executive competence

2.6 Just as section 28 of the 1998 Act confers general legislative powers upon the Scottish Parliament, so section 53 of the 1998 Act transfers to the Scottish Ministers all the powers of Ministers of the Crown. Apart from the implementation of Community obligations, where there is concurrent power, other functions of Ministers of the Crown are transferred to Scottish Ministers, in so far as they are exercisable within “devolved competence”. The result is that, following devolution, these powers cannot be exercised by Ministers of the Crown. Section 54 of the 1998 Act explains what is meant by “devolved competence”. Whether the power of a Minister is to make subordinate legislation, or to carry out some other executive action, section 54 provides that the Minister cannot make that legislation, or carry out that executive action, if it would be outside the legislative competence of the Scottish Parliament to pass legislation to that effect. Accordingly, the test for ministerial competence is the same as the test for legislative competence. This is relevant to the making of level crossing orders under section 1 of the Level Crossings Act 1983, as discussed later in the consultation paper.

¹ Scotland Act 1998, s 29(2) says that a provision of an Act of the Scottish Parliament is also outside the legislative competence of the Scottish Parliament if it is, for example, incompatible with the European Convention on Human Rights or in breach of the restrictions in sch 4. Sch 4 lists certain enactments that may not be modified by an Act of the Scottish Parliament or subordinate legislation made in exercise of a power conferred by such an Act. These enactments are referred to as “protected” enactments. The law relating to reserved matters is similarly protected from modification by virtue of that schedule. The question of the legislative competence of the Scottish Parliament (in the context of a road traffic offence) was considered in the case of Martin v HM Advocate 2010 [UKSC] 10.

Relevant reservations

2.7 As noted above, Schedule 5 to the Scotland Act 1998 reserves certain matters to the United Kingdom Parliament. Part 1 of the Schedule provides for various general reservations, whilst Part 2 provides for specific reservations. Some of the matters in Part 2 are described by reference to subject areas (for example, emergency powers and extradition). Other matters are described by reference to the subject matter of specific legislation. Some of the legislation which is of relevance to level crossings falls within the scope of the specific reservations, which we now turn to consider.

Road transport

2.8 The law relating to the regulation of traffic using the road (for example through traffic signs, temporary road closures and provision and prosecution of road traffic offences) is largely reserved. Section E1 of Schedule 5 to the Scotland Act 1998 provides for the reservation of Part V of the Road Traffic Regulation Act 1984 (dealing with traffic signs), the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988. However, what may be referred to as “substantive” roads law (for example, the creation, maintenance and stopping-up of roads and the provision of temporary roads) falls largely within the legislative competence of the Scottish Parliament.

Health and safety

2.9 Section H2 of Schedule 5 to the Scotland Act 1998 provides for the reservation of the subject matter of Part 1 of the Health and Safety at Work etc Act 1974 (HSWA 1974). This reservation falls under the general head of employment. The reservation is relevant to railways generally and in particular to level crossings in two respects.

2.10 First, sections 2, 3 and 4 of HSWA 1974 provide a general legislative framework with regard to health and safety that applies in relation to level crossings.

2.11 Secondly, section 117 of the Railways Act 1993 deems the Level Crossings Act 1983 to be an “existing statutory provision” for the purposes of Part 1 of HSWA 1974. On that basis it would seem that all aspects of the operation of the 1983 Act must be said to fall within the health and safety reservation, notwithstanding the fact that, in terms of the 1983 Act, level crossing orders may cover matters of convenience as well as safety. This view seems to be supported by the fact that the 1983 Act is described in section 117(1) of the 1993 Act as relating to “the proper construction and safe operation of certain transport systems”. This would tend to suggest that protection of safety has to be the primary purpose of any level crossing order. This is borne out by the wording of section 1(1) of the Level Crossings Act 1983 which gives the Secretary of State power to make level crossing orders “…for the protection of those using the level crossing”. Accordingly, the power to make level crossing orders in the 1983 Act continues to rest with the Secretary of State (as was the case prior to devolution).

The automatic open (ungated) locally monitored level crossing (AOCL) at Strathcarron
station on the Inverness to Kyle of Lochalsh line: note the flashing lights.
Photographer: John Furnevel.

Rail transport

2.12 Rail transport is largely a reserved matter under section E2 of Schedule 5 to the Scotland Act 1998. In particular the reservation encompasses the “provision and regulation of railway services”. The reservation is subject to a number of specific exceptions, one of which is the “promotion and construction of railways which start, end and remain in Scotland”. This exception does not extend to the regulation of any railway so constructed.

2.13 In any event, if it is accepted that the power to make level crossing orders falls within the health and safety reservation (because all such orders deal primarily with safety) there is no need to consider the provision and regulation of railway services reservation.

Criminal law and procedure

2.14 Criminal law in Scotland is a matter that falls largely within the legislative competence of the Scottish Parliament. However, section 29(4) of the Scotland Act 1998 provides that a provision of an Act of the Scottish Parliament which would not otherwise relate to reserved matters, but which makes modifications to Scots criminal law as it applies to reserved matters, is normally to be treated as applying to reserved matters.

2.15 In terms of procedure, in Scotland the decision as to whether to bring a prosecution for failure to meet the terms of an improvement notice under HSWA 1974 requiring compliance with a level crossings order is taken by the Procurator Fiscal. By contrast, in England and Wales the decision as to whether to bring such a prosecution is taken by the Office of Rail Regulation.

Executive devolution

2.16 In Part 8 we propose a new system of orders dealing with closure of level crossings. The new system would give rise to a potential constitutional difficulty as regards the respective powers of the Secretary of State and the Scottish Ministers. We propose a transfer of certain functions to the Scottish Ministers by means of executive devolution so as to address this difficulty. This transfer would be limited to administrative functions and would not alter the legislative competence of the Scottish Parliament. We discuss our proposal for executive devolution in more detail in Part 8.

Areas in which Scots law differs from that of England and Wales

Planning law

2.17 Town and country planning matters fall within the legislative competence of the Scottish Parliament.² Whilst the law in relation to town and country planning is broadly similar in Scotland, England and Wales, the law is contained in separate statutes and there are certain differences that may be of potential relevance in the level crossings context. At present, the Town and Country Planning (Scotland) Act 1997 makes provision for planning agreements, whereas in England and Wales the Town and Country Planning Act 1990 makes provision for planning obligations. However, a new section 75 is to be substituted into the Town and Country Planning (Scotland) Act 1997 by section 23 of the Planning etc (Scotland) Act 2006, making provision for planning obligations broadly equivalent to that applying to England and Wales. Section 23 also inserts a new section 75A, providing for the modification or discharge of planning obligations.³

2.18 A more significant divergence between the planning law of Scotland and that of England and Wales arises with the introduction of the Community Infrastructure Levy in England and Wales through regulations made under section 205 of the Planning Act 2008.⁴ The First Minister made a statement in August 2008 to the effect that there was no intention to introduce an equivalent levy in Scotland. Planning law is discussed in detail in Parts 9 and 10.

Highways/roads law

2.19 As noted above, the substantive law relating to roads in Scotland is, for the most part, a matter within the legislative competence of the Scottish Parliament. For the purposes of the project, the main relevant legislation as regards Scotland is the Roads (Scotland) Act 1984, while in England and Wales it is the Highways Act 1980.

2.20 There is no Scottish equivalent to sections 118A and 119A of the Highways Act 1980, making specific provision respectively for the stopping up and diversion of footpaths and bridleways which cross railways on the level. Similarly, there is no equivalent to section 255 of the 1980 Act, providing for distribution of costs

between the railway operator and the highways authority where a level crossing is to be replaced by a bridge. These provisions are discussed in Part 6. A further important difference between the law of the two jurisdictions in the context of level crossings arises from the different definitions of “road” which apply in the Level Crossings Act 1983 (discussed further in Part 5). The 1983 Act gives the Secretary of State the power to make orders “in relation to any place where a railway crosses a road on the level.” In relation to England and Wales, a “road” is defined as “any highway or other road to which the public has access.” In relation to Scotland, “road” has the same meaning as in section 151(1) of the Roads (Scotland) Act 1984:

“Road” means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof.

2.21 The key distinguishing factor between the definitions is the absence in the Scottish definition of any reference to “any other road to which the public has access.” We discuss this in detail in Part 5 where we refer to the case of Hamilton v Dumfries and Galloway Council⁵ in which the court held that a right of passage amounted to a right of way. The effect of this decision is that in relation to Scotland, only crossings where there is a public right of way can be subject to an order under the Level Crossings Act 1983; crossings over ways to which access is taken by the tolerance, permission, or acquiescence of the person entitled to control the use of the way are not governed by the 1983 Act.

Access rights under the Land Reform (Scotland) Act 2003

2.22 The Land Reform (Scotland) Act 2003 confers a right to be on land for certain specified purposes and a general right to cross land, providing that those rights are exercised responsibly. These rights are much wider in scope than the access rights applying to England and Wales, under Part 1 of the Countryside and Rights of Way Act 2000. However, the question arises as to whether or not access rights under the 2003 Act apply to private level crossings. These issues are discussed further in Part 12.

Issues of relevance to private law

2.23 Differences in the nature and methods of constituting and extinguishing easements, in relation to England and Wales, and servitudes in Scotland must be taken into account. Moreover, differences in the law of prescription as between the two jurisdictions are also of significance. These affect both the creation and extinction of rights of way over level crossings by means of prescription.

2.24 In addition, case law would seem to suggest that there might be a divergence between the jurisdictions in relation to the effect upon the continued exercise of rights over private level crossings where two pieces of land bisected by a railway

cease to be owned by the same person.⁶ These issues are considered in more detail in Parts 11 and 12.

Areas in which Scottish Ministers have separate functions

2.25 In relation to some areas, the Scottish Ministers have separate, though broadly similar functions to those of the Secretary of State.

Railway finance

2.26 The Scottish Ministers have certain functions under Schedule 4A to the Railways Act 1993 in relation to railway finance. In the context of level crossings, the most significant function is possibly that relating to the preparation of the High Level Output Specification (HLOS) and the Statement of Funds Available (SoFA). We discuss aspects of railway finance in Part 7 in connection with the need for reform of the procedures relating to the closure of level crossings.

Transport and works

2.27 The Scottish Ministers also have the power to make orders under the Transport and Works (Scotland) Act 2007,⁷ in connection with the construction and operation of railways which start, end and remain in Scotland. The powers under the 2007 Act are broadly equivalent to the powers exercisable by the Secretary of State and/or Welsh Ministers under the Transport and Works Act 1992 to make transport and works orders in relation to England and Wales.

WALES

2.28 The National Assembly for Wales was established by the Government of Wales Act 1998. The Act created a form of what was described as “executive” devolution. This allowed for the transfer to the National Assembly for Wales of functions exercised in relation to England by Secretaries of State. While the 1998 Act set out the broad areas in which such powers were to be transferred, the actual legal transfer of the powers was effected by a series of “transfer of functions” orders made subsequently under the Act. The Government of Wales Act 2006 changed the basis of devolution to Wales. First, it made provision for the incremental transfer to the National Assembly for Wales of legislative powers. It did so by delineating broad “fields” (largely the same as the areas of executive devolution under the 1998 Act), within which “matters” would be added in order to give the National Assembly power to make a new form of legislation called “measures”. One such “field” relates to highways and transport. However, it has not as yet been populated with any matters. More importantly for our purposes, the 1998 Act put into statutory form a division between the legislative National Assembly and the executive “Welsh Assembly Government” (thereby giving legal effect to a division the Assembly had striven to create in practice from an earlier date). Broadly, the executive functions previously transferred to the National Assembly were transferred by the 2006 Act to the Welsh Assembly Government.

⁶ In relation to England and Wales the relevant authority is Midland Railway Company v Gribble [1895] 2 Ch 827; in relation to Scotland the relevant authority is Robertson v Network Rail Infrastructure Limited, Inverness Sheriff Court 28 May 2007 (unreported) http://www.scotcourts.gov.uk/opinions/A161_06.html (last visited 27 June 2010).

The implications of the Welsh devolution settlement for the level crossings project are discussed further below.

2.29 There are matters about which the National Assembly for Wales has competence to legislate under the Government of Wales Act 2006. There are also areas where the Welsh Ministers have taken over certain statutory functions that in England are performed by the Secretary of State. The law of England and Wales is one body of law and whilst there are certain differences which reflect the devolution settlement and which will be outlined where relevant, there are no major areas of difference which affect our policy. This is in contrast to the position in relation to Scots law, which is separate and, in certain areas such as land law, very different to that in England and Wales.

A public road crosses a railway at an open (ungated) level crossing at Cwm Cloch near Beddgelert on the recently reconstructed narrow gauge Welsh Highland Railway: note the bilingual warning signs but the absence of flashing lights.

Photographer: Rowland Turner.

Legislative competence of the National Assembly for Wales

2.30 As mentioned above, the National Assembly for Wales has competence to make laws, known as assembly measures, which relate to matters outlined in Part 1 of Schedule 5 to the Government of Wales Act 2006. The United Kingdom Parliament retains the power to legislate on any matter, but a Memorandum of Understanding⁸ between the United Kingdom Government and the Welsh Ministers (and also the Scottish Ministers and Northern Ireland Executive Committee) means that the United Kingdom Government will seek the consent of

Devolution: Memorandum of Understanding and Supplementary Agreements (2001) CM

5240, available at http://www.justice.gov.uk/guidance/mou.htm (last visited 27 June 2010).

the relevant devolved administration before seeking to legislate on matters within devolved competence.⁹ Schedule 5 to the 2006 Act outlines 20 general fields of legislative competence which are then populated with specific matters. Of relevance to our policy are field 10: highways and transport, and field 18: town and country planning. It is intended that the legislative competence of the National Assembly for Wales will be extended incrementally, and matters added to the general fields.¹⁰

Field 10: highways and transport

2.31 The only matters currently within field 10 (and upon which the National Assembly for Wales may therefore legislate) relate to roads and road traffic matters.

Field 18: Town and country planning

2.32 The Planning Act 2008 recently added matters to field 18, giving the National Assembly for Wales increased legislative competence in relation to town and country planning (referred to below and in Part 9 as spatial planning). The matters relate, first, to development plans in Wales, including the relationship between regional (Wales-wide) and local plans, but excluding plans in relation to development consent under the Planning Act 2008. Secondly, the matters relate to the provision for and in connection with the review by local planning authorities of matters which may be expected to affect development of the authorities’ areas or the planning of such development. The National Assembly for Wales has not yet legislated in this area.

Functions transferred from the Secretary of State to Welsh Ministers

Highways

2.33 Functions under the Highways Act 1980 are devolved under article 2 and Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999¹¹ and paragraph 30 of Schedule 11 to the Government of Wales Act 2006. The division between local authority responsibility for local roads and central government responsibility for trunk roads and special roads is the same as that in England. The Highways Agency does not operate in Wales and responsibility lies directly with the Welsh Ministers. In practice, maintenance of the trunk road network in Wales is carried out by local authorities under delegation arrangements made with the Welsh Ministers under section 6 of the Highways Act 1980.

2.34 However, very few public road level crossings lie on highways that are the responsibility of the Secretary of State/Welsh Ministers. Of more importance for the project is the responsibility for confirming and extending the life of stopping up/diversion orders. Almost all the stopping up and diversion powers available give this role to the Secretary of State/Welsh Ministers, including sections 118A and 119A of the Highways Act 1980 relating specifically to level crossings. Any

¹⁰ Ministry of Justice, Devolution Guidance Note 9 Post Devolution Primary Legislation Affecting Wales (2007) p 4.

¹¹ National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999 No 672.

proposals which build on or include these provisions, or which propose a system of appeal or confirmation of orders of the local highways authority would have to bear in mind that the relevant body for the appeal/confirmation in Wales would be the Welsh Ministers rather than the Secretary of State.

Spatial planning

2.35 Spatial planning functions under the Town and Country Planning Act 1990 are devolved to the Welsh Ministers, who are responsible for the Wales Spatial Plan which provides an overarching policy for sustainable development within Wales. Planning policy is set out in the Welsh Assembly document Planning Policy Wales (2002), which is supplemented by ministerial interim planning policy statements. The Welsh Ministers have the equivalent of the “call-in” power of the Secretary of State in England,¹² where the application in question raises issues of more than local importance. The Planning Act 2008 introduced further devolution in relation to spatial planning, giving powers to the Welsh Ministers in relation to plans for development and land use.

2.36 Local planning authorities also have certain powers in relation to the stopping up of highways. For example, section 257 of the Town and Country Planning Act 1990 allows for the stopping up or diversion of footpaths, bridleways and restricted byways by a local planning authority where stopping up or diversion is necessary to carry out works authorised under planning permission. This is a corollary of the power to grant planning permission for such a development. In England if there are objections it is the Secretary of State who ultimately decides whether the highway should be stopped up; in Wales it is now the Welsh Ministers.

Transport planning

2.37 As with spatial planning, local and regional transport planning has been devolved and for Wales, it is now the responsibility of the Welsh Ministers.

2.38 There are some differences relating to local transport plans between the system which operates in England and that in Wales. These are minor, but are worth noting in terms of consultation requirements and the potential need for guidance under any proposals. Under section 109(2C) of the Transport Act 2000,¹³ local authorities in England must consult with the operators of any “network or station, or of any railway services, in their area”¹⁴ in relation to the drawing up of local transport plans as required under section 108 of that Act. Section 109 does not apply to Wales. Instead sections 109A, 109B and 109C require that transport plans be submitted to the Welsh Ministers. The Welsh Ministers may only approve the transport plans where they are “consistent” with the Wales Transport Strategy¹⁵ and are “adequate” for its implementation.¹⁶

¹² Town and Country Planning Act 1990, s 77.

¹³ Transport Act 2000, s 109(2C) was inserted by the Local Transport Act 2008, s 9(4) with effect as regards England from 9 February 2009 (by virtue of SI 2009 No 107).

¹⁴ Transport Act 2000, s 109(2C).

¹⁵ Transport Act 2000, s 109A(4)(a).

¹⁶ Transport Act 2000, s 109A(4)(b).

2.39 Sections 113A and 113B of the Transport Act 2000¹⁷ give the Welsh Ministers the power to make an order allowing local authorities to produce a local transport plan for only part of their area, or for two or more authorities to produce one plan for an area comprising all or part of their respective areas. The Regional Transport Planning (Wales) Order 2006¹⁸ was made in exercise of this power, permitting local transport plans to be made on a regional rather than individual local authority basis. The order also groups Welsh local authorities into four groups, each of which is to prepare a single plan. It appears, therefore, that transport planning in Wales is moving to a regional, rather than local basis.

Transport and works orders

2.40 Responsibilities under the Transport and Works Act 1992 are also devolved. Where a proposed project is to take place entirely within Wales, an application under the 1992 Act is decided by the Welsh Ministers. Where proposed works are to take place both in England and Wales, the Secretary of State will take the decision, but is required to secure the agreement of the Welsh Ministers prior to making an order. If an order were merely for an individual level crossing this cross-border element is unlikely to come into play. However, in relation to level crossings closed or replaced as part of a larger scheme (which is the more common scenario) this may be of relevance. For the purposes of any future reforms, the devolved nature of the current authorisation regime will need to be taken into account.

Railway finance

2.41 Since 1 April 2006 the Welsh Ministers have had responsibility for rail franchising within Wales. In practice this means the Wales and Borders Rail Franchise which is operated by Arriva Trains Wales. This contract was concluded in 2003 and runs for 15 years.

2.42 Network Rail remains responsible for the maintenance and upgrade of the mainline railway infrastructure in Wales as in the rest of Great Britain, but not for heritage or commercial railways. Whilst the Welsh Ministers work in partnership with Network Rail on projects, they have no responsibility for infrastructure themselves, nor do they have a direct input into the funding streams available for Network Rail infrastructure improvements. We discuss railway finance further in Part 7.

Executive devolution

2.43 As we mention above, in Part 8 we propose a new system of orders dealing with closure of level crossings. In this connection, a similar difficulty arises as regards Wales to that in Scotland in relation to the respective powers of the Secretary of State and the Welsh Ministers. We therefore propose a transfer of certain functions to the Welsh Ministers by means of executive devolution so as to address this difficulty. The transfer would apply to administrative functions only and would not confer any legislative competence of the National Assembly for Wales. We discuss this matter in more detail in Part 8

¹⁷ Inserted by the Transport (Wales) Act 2006.

¹⁸ SI 2006 No 2993.

INTRODUCTION

3.1 Accessibility at level crossings is crucial to a safe and efficient road and rail transport system. However, on occasions people face difficulties when trying to cross level crossings. This may be due in part to issues with the design of the level crossing itself. Problems may also arise where a level crossing has been or is to be replaced by a bridge or an underpass which does not fully accommodate the needs of all those using it.

3.2 It is important to recognise that, as well as disabled persons, other groups of users may have additional needs, for example, people with children in push-chairs, elderly people, cyclists or horse riders. They may also experience difficulties using level crossings or bridges or underpasses which replace them.

3.3 During the course of our research we have been made aware of a number of issues which concern accessibility of level crossings, particularly for disabled persons. We understand that a particular difficulty can arise with public footpath crossings which have “kissing gates”. In one case, questions arose about the obligations on the railway operator to ensure that the crossing was suitable for use by disabled persons. Such gates can be very difficult or even impossible for wheelchair users and other disabled persons to operate. Similar difficulties can arise at such crossings for elderly people and people with prams, push-chairs or bicycles.

ACCESSIBILITY AND THE ASSESSMENT OF SAFETY/CONVENIENCE OF LEVEL CROSSINGS

3.4 In determining what protective arrangements are to be put in place at a level crossing, it is necessary to consider both the safety and convenience of road and rail users. This assessment has to take into account the extent to which proposed protective arrangements would make a level crossing more or less accessible for users who may have particular accessibility needs. In other words, accessibility is part of the equation in balancing safety and convenience when deciding on appropriate protective arrangements at level crossings.

ACCESSIBILITY OF LEVEL CROSSINGS: DISABLED USERS

Equality Act 2010¹

3.5 At present the Disability Discrimination Act 1995 provides protection in certain circumstances against discrimination on grounds of disability. However, it should be noted that the Equality Act 2010 contains provisions to repeal and replace the

provisions of the 1995 Act. The purpose of the 2010 Act is to harmonise and consolidate the legislation in the UK relating to discrimination. It is not intended to make any fundamental changes to the law insofar as it relates to the disability discrimination provisions relevant to level crossings. However, the 2010 Act does make a small number of changes which may be relevant, and these are noted throughout this Part. The Equality Act 2010 also contains a new, streamlined general “public sector equality duty”² which will, when the Act comes fully into force, replace the current separate disability, gender, and race equality duties.³

3.6 Since the Equality Act 2010 is not yet fully in force, it is appropriate to consider the current provisions of the Disability Discrimination Act 1995 which are relevant to disability issues at level crossings.

Disability Discrimination Act 1995

3.7 The Disability Discrimination Act 1995 makes it unlawful to discriminate against people with disabilities⁴ in relation to employment, the provision of goods and services, education and transport. For the purposes of level crossings, the relevant provisions are found in Part III. That Part prohibits discrimination by providers of services and public authorities in connection with the provision of goods, facilities and services to the public.

3.8 Section 19 provides that it is unlawful for a provider of services to the public to discriminate against a person with a disability in the provision of services.

3.9 Section 21B of the 1995 Act⁵ provides that it is unlawful for a public authority to discriminate against a person who has a disability in carrying out its functions. There is also a general duty on public authorities under section 49A of the 1995 Act.⁶ Under that section, public authorities must have due regard, in exercising their functions, to certain factors including the need to “(a) …eliminate discrimination that is unlawful under [the] Act” and “(d) …take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons”.

The distinction between “providers of services” and “public authorities”

3.10 Section 19(2) of the 1995 Act contains a broad definition of “provider of services”, which includes any person who is concerned with the provision of services to the public or to a section of the public, regardless of whether the service is provided

with or without payment.

3.11 The provision of services referred to in the definition of “provider of services” includes the provision of any goods or facilities, and an example of services to which the Act applies is “access to and use of any place which members of the public are permitted to enter”.⁷ It appears from this that in terms of the test in the 1995 Act, level crossings to which the public has legitimate access can be regarded as “services” and therefore they come within the scope of the Act. However, in order for the duties under the Act to apply, there needs to be either a provider of services or a public authority which is responsible for operating the “place” concerned.

3.12 In terms of section 21B(2) of the 1995 Act, “public authority” is also defined broadly to include any person whose functions are of a public nature. There are some exclusions but none of these is relevant to level crossings.⁸

3.13 Therefore, when determining the duties of a particular body under Part III of the 1995 Act, one must first consider whether it provides services to the public or exercises functions of a public nature.

3.14 The duties placed on public authorities and providers of services are broadly similar. Both must treat disabled persons equally to other members of the public and both are under a duty to make reasonable adjustments to make physical features (for example, a level crossing) more user-friendly and accessible for disabled persons.

3.15 For the purposes of level crossings, it is clear that the Secretary of State for Transport, the Department for Transport, highway/roads authorities, and the Office of Rail Regulation (ORR) are all public authorities as defined by the 1995 Act. Equally, it seems clear that operators of heritage railways and private railways such as those in docks or harbours are “providers of services” in respect of level crossings over which the public has lawful access. We come to this view on the basis of the discussion above of the definition of “provider of services” and in particular the meaning of “services”. However, the distinction between providers of services and public authorities is less clear-cut when applied to Network Rail. Does Network Rail provide a service to the public or does it exercise functions of a public nature?

Disability Discrimination Act 1995, s 19(3)(a).

Disability Discrimination Act 1995, s 21B(3).

3.16 In Cameron and others v Network Rail Infrastructure Ltd (formerly Railtrack plc),⁹ Turner J concluded that Railtrack was not a public authority for the purposes of section 6(3) of the Human Rights Act 1998.¹⁰ In doing so, Turner J attempted to identify a combination of factors relevant to a determination of public authority status. These factors included the extent to which Railtrack was democratically accountable to central or local government, whether Railtrack pursued commercial objectives, whether it was publicly funded, and whether Railtrack was obliged to conduct its operations in a manner subservient to the public interest.¹¹

3.17 Similarly in YL v Birmingham City Council,¹² Lord Bingham provided a list of factors which he considered were relevant to determining whether a function is of a public nature. Applying these factors to Network Rail, it becomes clear that the arguments can run both ways and that a determination of public status ultimately depends upon very fine factual distinctions.

(1) THE NATURE OF THE FUNCTION

3.18 Network Rail’s function is to provide a safe, reliable and efficient railway by maintaining the rail infrastructure, which includes the tracks, signals, tunnels, level crossings, and some stations.

3.19 In Cameron, the claimants argued that Railtrack was a public body because it performed functions previously carried out by central government through the former British Railways Board and was the vehicle selected to perform the function of ensuring safety on the railway network. However, as Turner J held, although previous governments have taken control of the railways through nationalisation, the business of running a railway is not intrinsically an activity of government.

(2) THE ROLE AND RESPONSIBILITY OF THE STATE

3.20 Network Rail does receive some public funding.¹³ However, it is not entirely funded or regulated by government, nor is it democratically accountable to government. Neither is its board of directors under government influence or control. Therefore, the role and responsibility of the State in respect of Network Rail is arguably minimal.

⁹ Cameron and others v Network Rail Infrastructure Ltd (formerly Railtrack plc) [2006] EWHC 1133 (QB), [2007] 1 WLR 163. The case concerned Railtrack plc but by the time of the judgment Railtrack had been taken over and was subsequently renamed Network Rail Infrastructure Limited which was registered as a private limited company.

¹⁰ While Cameron concerned the Human Rights Act 1998, we note that the definition of a “public authority” in section 6(3) of the 1998 Act is in similar terms to the definition of “public authority” in the Disability Discrimination Act 1995”, namely: “any person certain of whose functions are functions of a public nature”.

¹¹ Cameron and others v Network Rail Infrastructure Ltd (formerly Railtrack plc) [2006] EWHC 1133 (QB), [2007] 1 WLR 163 at [29].

¹² [2007] UKHL 27; [2008] 1 AC 95 at [6]-[11].

¹³ Network Rail receives network grants from the Government and it benefits from direct and specific governmental support in the form of a financial indemnity from the Secretary of State for Transport. See http://www.networkrail.co.uk/aspx/717.aspx (last visited 27 June 2010) and http://www.networkrail.co.uk/aspx/1385.aspx (last visited 27 June 2010).

(3) THE NATURE AND EXTENT OF ANY STATUTORY POWER OR DUTY

3.21 Network Rail was given a mandate by the Government to improve the safety, reliability and efficiency of the railway. As part of Network Rail’s network licence granted by the Government, duties are imposed on Network Rail in relation to the operation, maintenance, renewal and development of the network. However, Turner J in Cameron held that:

…the fact that [Railtrack] held an operating licence does not satisfy the test: all infrastructure, train and station operators are required by the same statutory provisions to hold a licence issued by the Secretary of State for Transport. This feature cannot be decisive, yet in conjunction with other features it could be a factor to be taken into account.

(4) THE EXTENT OF STATE REGULATION

3.22 As mentioned above, Network Rail is not regulated by and is not democratically accountable to government. Rather, it is regulated by ORR, an independent safety and economic regulator for the railways.

(5) THE EXTENT OF THE STATE’S INVOLVEMENT IN PAYMENT

3.23 Again, as stated above, Network Rail does receive some public funding. However, its main sources of revenue are from track access charges and the lease of stations and depots. Track access charges amount to approximately 90% of Network Rail’s income and come from the operators of passenger services, freight operators, and open access passenger services (such as Eurostar and excursion trains).¹⁴

(6) THE EXTENT OF THE RISK TO INDIVIDUALS’ CONVENTION RIGHTS

3.24 It could be argued that Article 2 (the right to life) and Article 8 (the right to private and/or family life) of the European Convention on Human Rights are relevant in respect of Network Rail. However, it is likely that a successful ECHR claim against Network Rail (if considered a public authority) would be very factspecific.¹⁵

¹⁴ House of Commons Library Standard Note SN/BT/2129, Railways: Network Rail (4 February 2010) p 2.

¹⁵ For example, although Article 8 imposes positive obligations on the State to secure respect for private and/or family life, these obligations only arise when there is a direct and immediate link between the measures sought and the applicant’s private and/or family life. Article 8 would therefore only apply where the lack of access to a public level crossing affects the applicant’s life in such a way as to interfere with his or her right to personal development and his or her right to establish and develop relationships with other human beings and the outside world: Botta v Italy (1998) 26 EHRR 241 (App No 21439/93); Zehnalová and Zehnal v Czech Republic App No 38621/97.

3.25 Although it is important to outline the legal problem, it is not necessary to express a decided view on the status of Network Rail. Our proposals in respect of level crossings must be capable of applying not only in the present, but also in the future, when the various railway actors may have changed. Whether the courts ultimately decide that Network Rail is a private provider of services or a public authority for the purposes of the Disability Discrimination Act 1995, Network Rail is subject to duties under the 1995 Act in relation to the level crossings that it provides to the public.

Duties on both “providers of services” and “public authorities”

3.26 Providers of services and public authorities are under two main duties:

(1)

a duty to treat disabled persons equally to other members of the public; and

(2)

a duty to make reasonable adjustments.¹⁶

3.27 These two duties are linked: in fulfilling the duty to make adjustments, providers of services and public authorities will be fulfilling their duty to treat disabled persons equally. “No dogs” policies and a refusal to permit access to disabled persons with assistance dogs is an example of disability-related discrimination. This discrimination can be resolved through the duty to make adjustments, to which we now turn.

3.28 Sections 21 and 21E¹⁷ of the 1995 Act set out the duty on providers of services and public authorities respectively to make reasonable adjustments. This duty can be broken down into three further discrete duties:

(1)

a duty to change practices, policies, and procedures;

(2)

a duty to overcome a physical feature; and

(3)

a duty to provide auxiliary aids and services.

3.29 It should be stressed that the Equality Act 2010 contains provisions to bring into line the threshold at which service providers are under a duty to make reasonable adjustments with the threshold for employers in the 1995 Act; that is, service providers will be under a duty to make adjustments when a provision, criterion or practice puts a disabled person at a “substantial disadvantage”.¹⁸ In contrast, the current threshold under the Disability Discrimination Act 1995 is a “practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides”.¹⁹ It remains to be seen whether this will have a substantial impact on the actions required by service providers in practice.

¹⁶ Disability Discrimination Act 1995, ss 21 and 21E.

¹⁷ Section 21E was inserted into the 1995 Act by section 2 of the Disability Discrimination Act 2005.

¹⁸ Equality Act 2010, s 20. It should be noted that section 20, along with most of the provisions of the 2010 Act, has not yet been brought into force.

¹⁹ Disability Discrimination Act 1995, s 21(1).

THE DUTY TO CHANGE PRACTICES, POLICIES, AND PROCEDURES

3.30 If a provider of services or a public authority has a practice, policy or procedure which:

(1)

in the case of providers of services, makes it impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for disabled persons to make use of a service provided to other members of the public, or

(2)

in the case of public authorities, makes it impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for disabled persons to receive any benefit or makes it unreasonably adverse for disabled persons to experience any detriment,

it is under a duty to take reasonable steps to change that practice, policy or procedure so that it no longer has that effect.²⁰

3.31 If, for example, Network Rail were to adopt a policy of placing signs at level crossings at a minimum height of six feet, this would make it impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for wheelchair users to read signs, thereby compromising their safe use of level crossings. In these circumstances, the policy would have to be changed so that it would no longer have that adverse effect.

THE DUTY TO OVERCOME A PHYSICAL FEATURE

3.32 If a physical feature makes it impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for disabled persons to make use of a service provided to other members of the public or to receive any benefit, or makes it unreasonably adverse for disabled persons to experience a detriment, providers of services and public authorities are under a duty to take reasonable steps to:

(1)

remove the feature;

(2)

alter it so that it no longer has that effect;

(3)

provide a reasonable means of avoiding the feature; or

(4)

provide or adopt a reasonable alternative method of making the service in question available to disabled persons or of carrying out the function in question.²¹

3.33 The expression “physical feature” in sections 21(2) and 21E(3) has a very broad meaning which includes:

(1) any feature arising from the design or construction of a building on the premises occupied by the service provider or public authority;

²⁰ Disability Discrimination Act 1995, ss 21(1) and 21E(2).

²¹ Disability Discrimination Act 1995, s 21(2) (for providers of services) and s 21E(4) (for public authorities).

(2)

any feature on those premises of any approach to, exit from, or access to such a building;

(3)

any fixtures, fittings, furnishings, furniture, equipment, or materials in or on such premises; and

(4)

any other physical element or quality of land contained in the premises occupied by the service provider or public authority.²²

3.34 The code of practice for Part III of the 1995 Act also provides a non-exhaustive list of physical features which includes steps, stairways, kerbs, exterior surfaces and paving, gates, lighting, floor coverings, and signs.²³

3.35 An adverse “physical feature” could be the uneven and inconsistent surface of a level crossing or its replacement. This physical feature might adversely affect wheelchair users because an uneven surface can make it impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for such persons to cross. In these circumstances, the uneven surface would have to be removed, altered, reasonably avoided, or a reasonable alternative method of crossing would need to be provided.

THE DUTY TO PROVIDE AUXILIARY AIDS AND SERVICES

3.36 Providers of services and public authorities are under a duty to take reasonable steps to provide an auxiliary aid or service if it would enable or facilitate disabled persons to make use of a service or to receive a benefit provided to other members of the public, or if it would reduce “the extent to which it is adverse for disabled persons to experience being subjected to a detriment”.²⁴

3.37 An example of an “auxiliary aid” in the context of level crossings would be the provision of a warning sound intended for visually impaired people when a train is approaching. Although a visually impaired person may still be able to make use of a level crossing without a warning sound, the threshold at which the duty to provide an auxiliary aid or service is triggered is lower than that provided for “practices, policies, and procedures” and “physical features”. It is only necessary that an auxiliary aid or service would either enable or facilitate disabled persons, even when such a service is not impossible or unreasonably difficult (“substantial disadvantage” under the 2010 Act) for disabled persons to make use of.

APPLYING THESE DUTIES TO LEVEL CROSSINGS

3.38 In the case of Keith Roads v Central Trains Limited,²⁵ Sedley LJ held:

²² Disability Discrimination (Service Providers and Public Authorities Carrying Out Functions) Regulations 2005, SI 2005 No 2901, reg 9.

²³ Disability Rights Commission, Code of Practice, Rights of Access: services to the public, public authority functions, private clubs and premises (2006) para 7.45.

²⁴ Disability Discrimination Act 1995, ss 21(4) and 21E(6) and (7).

²⁵ [2004] EWCA Civ 1541. We note that the case was raised against Central Trains Ltd, a train operating company, rather than against Railtrack plc as the operator of the railway infrastructure. We can only speculate on what the outcome of the case might have been had it been raised against Railtrack plc.

Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled persons to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act…is…to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large. While, therefore, the Act does not require the court to make nice choices between comparably reasonable solutions, it makes comparison inescapable where a proffered solution is said not to be reasonable precisely because a better one, in terms of practicality or of the legislative policy, is available.²⁶

3.39 In the context of level crossings, therefore, when a provider of services or a public authority provides a level crossing to the public, it must ensure, so far as it is reasonable, that disabled persons are accommodated in the same way as other members of the public. In the case of the closure of a level crossing and its replacement with a bridge, for example, this also must be suitable to accommodate the needs of disabled persons. In accommodating these needs, regard must be had to the duties under sections 21 and 21E (the duty to make reasonable adjustments, as outlined above). If a range of solutions is available to a provider of services or a public authority, it must choose the solution which best succeeds in treating disabled persons equally to other members of the public. Only in this way can a provider of services or a public authority discharge its duties under the 1995 Act.

Proposed European Union Equal Treatment Directive²⁷

3.40 In 2008, the European Commission proposed a Directive implementing the principle of equal treatment of persons irrespective of religion or belief, disability, age or sexual orientation, outside of the employment context. This Directive has not yet been approved and further discussions will be taking place in the European Parliament and in the Council of Europe. However, it is worth considering the proposed Directive because it could have implications for UK disability discrimination law.

3.41 “Disability” is not explicitly defined in the proposed Directive, but the European Parliament has stated that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, “disability” is to be understood in light of the UN Convention on the Rights of Persons with Disabilities²⁸ which states:

²⁶ As above, at [13].

²⁷ Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation

CNS/2008/0140.

²⁸ The Convention was adopted on 13 December 2006. The text of the Convention is available at: http://www.un.org/disabilities/convention/conventionfull.shtml (last visited 27 June 2010).

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.²⁹

3.42 The definitions of “disability” used in both the proposed Directive and the Convention are considerably broader than the definition in the Disability Discrimination Act 1995.³⁰ Only physical and mental impairments are specifically included under the 1995 Act, and these impairments must not only be long-term but also “substantial”. In addition, the definition under the 1995 Act looks to the effect of the impairment on a disabled person’s “ability to carry out normal day-today activities”. This is narrower than the wording of the definition in the proposed Directive, and UN Convention.

3.43 Article 3 of the proposed Directive states that:

Discrimination based on religion or belief, disability, age or sexual orientation is prohibited by both the public and private sector in…access to and supply of goods and services which are available to the public…

3.44 The European Parliament has stated that “access” should include buildings open to the public, modes of transport, and other public spaces and facilities.³¹ Publicly accessible level crossings therefore would fall within the scope of the proposed Directive.

3.45 Article 4 of the proposed Directive states that the measures necessary to enable disabled persons to have effective non-discriminatory access to and supply of goods and services otherwise available to the public must be provided by taking measures of “reasonable accommodation”. This is very similar to the Disability Discrimination Act 1995 duty to make adjustments. However, the proposed Directive’s duty to take measures of reasonable accommodation is limited if taking such measures would impose a disproportionate burden or require a fundamental alteration; that is, if it would alter the goods and services or the nature of the trade, profession or business, to such an extent that the provider of the goods or services is effectively providing a completely different kind of goods or services.³² Similar qualifications to the duty to make reasonable adjustments apply under the Disability Discrimination Act 1995 to providers of services,³³ but

²⁹ UN Convention on the Rights of Persons with Disabilities 2006, Article 1.

³⁰ The definition in section 6 of the Equality Act 2010 is the same as that in the 1995 Act.

³¹ European Parliament legislative resolution of 2 April 2009 on the proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, amendment 97. Available at

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6

TA-2009-0211 (last visited 27 June 2010).

³² As above, amendment 22.

³³ Disability Discrimination Act 1995, s 21(6)-(7).

they do not apply to public authorities.³⁴

3.46 If the proposed Directive were to be accepted, it would need to be transposed (implemented) into UK law in order to give effect to the requirements of the Directive. It seems that on the basis of the terms of the proposed Directive, amendments would probably be necessary to either the Disability Discrimination Act 1995 or the Equality Act 2010, among other things, to expand the definition of “disability”.

ACCESSIBILITY OF LEVEL CROSSINGS: OTHER USERS

3.47 The discussion above has focused on the needs of disabled persons when using level crossings. However, accessibility at level crossings can also be an issue for people who are not disabled, for example elderly people, people with children in push-chairs, horse riders, and cyclists, all of whom may face difficulties in using level crossings.

CONCLUDING REMARKS

3.48 It is with a view to addressing these issues that the Rail Safety and Standards Board (RSSB) is currently undertaking a research project looking at ways of improving safety and accessibility at level crossings for disabled pedestrians.³⁵ The project is considering practical ways in which in the future the design of level crossings can provide specific facilities for disabled pedestrians with a view to improving accessibility.

3.49 Whilst it is appropriate for disability and accessibility issues to be raised in this consultation paper, it seems likely that any changes that may be needed might focus on practical matters that are outside the scope of a law reform project. The RSSB project is a suitable vehicle for the discussion of such issues and consultees who have views on specific issues may wish to share those views with the RSSB.

3.50 Nevertheless, we would welcome any comments that consultees may have on disability and accessibility issues in respect of level crossings.

³⁴ The Equality Act 2010 does not replicate the qualifications to the duty to make reasonable adjustments under the Disability Discrimination Act 1995. Rather, the duty hinges on whether the adjustment is reasonable – if it is not, then there is no need to make the adjustment. The 2010 Act provides that an adjustment is not reasonable if it would fundamentally alter the nature of the service: Equality Act 2010, sch 2, para 2(7).

³⁵ RSSB Research Project T650, available at: http://www.rssb.co.uk/RESEARCH/Lists/DispForm.aspx?ID=125 (last visited 27 June 2010).

INTRODUCTION

4.1 In this Part we discuss the means by which level crossings come into existence as a matter of law.

4.2 As mentioned in Part 1, nearly all existing level crossings were created under private legislation in the form of special Acts as part of the construction of the railways during the nineteenth century. The modern system for authorising railways is contained in recent transport and works legislation. The creation of rights of way over the railway is discussed in Parts 11 and 12.

THE OLD SYSTEM: SPECIAL ACTS

4.3 Special Acts which authorised the construction of railways would generally:

(1)

establish a company to build the railway;

(2)

allow for the compulsory acquisition of land if this was found by the railway company to be necessary;

(3)

allow for the construction of the railway and various ancillary works;

(4)

impose continuing obligations on the railway company, which could include the maintenance of level crossings; and

(5)

provide a mechanism for the resolution of disputes, frequently by recourse to Justices of the Peace in England and Wales, or a Sheriff in Scotland.

4.4 The early development of railways has been described as “haphazard”,¹ with a large proliferation of small railway companies and consequently a large number of special Acts. For instance, in 1844, some 50 new lines were authorised.² Owing to the volume of special Acts and the resulting Parliamentary burden, Parliament enacted the Railways Clauses Consolidation Act 1845 and the Railways Clauses Consolidation (Scotland) Act 1845. These Acts provided standard clauses that were deemed to be incorporated into new special Acts unless they were expressly excluded or contrary provision was made, thereby making the Parliamentary process simpler and more efficient. The later Railways Clauses Act 1863 worked the other way round, requiring express incorporation of the model clauses into special Acts.

4.5 The main provision authorising the construction of level crossings on public highways for England and Wales is contained in section 46 of the Railways Clauses Consolidation Act 1845 (and in similar terms in section 39 of the

Railways Clauses Consolidation (Scotland) Act 1845):

If the line of the railway cross any turnpike road or public highway, then … either such road shall be carried over the railway, or the railway shall be carried over such road, by means of a bridge…: Provided always, that, with the consent of two or more justices … it shall be lawful for the company to carry the railway across any highway, other than a public carriage road, on the level.³

4.6 The construction of private crossings is covered by section 68 of the Railways Clauses Consolidation Act 1845 as regards England and Wales and by section 60 of the Railways Clauses Consolidation Act (Scotland) 1845 as regards Scotland. Both sections make general provision listing a number of “works” that the company must provide for the “accommodation of the owners and occupiers of lands adjoining the railway”. These are:

Such and so many convenient gates, bridges, arches, culverts, and passages, over, under, or by the sides of or leading to or from the railway, as shall be necessary for the purpose of making good any interruptions caused by the railway to the use of the lands through which the railway shall be made…

4.7 Under section 73 of the Railways Clauses Consolidation Act 1845 and section 65 of the Railways Clauses Consolidation (Scotland) Act 1845, the railway company could not be required to put in place further accommodation works after the expiry of the period prescribed in the special Act, or after five years if no period was prescribed. As we discuss in Parts 11 and 12, the Acts themselves were silent as to the rights of way that were implied by the creation of a level crossing under these clauses. But it was possible for easements (in England and Wales) or servitudes (in Scotland) to be expressly reserved in the conveyance that transferred the relevant land to the railway company. As mentioned in Part 1, the term “accommodation crossing” is often used for a private crossing constructed at the same time as the railway, although the term is not itself used in the 1845 Acts and we do not use the term in this consultation paper.

4.8 A vast number of special Acts were passed for the authorisation of railways, and many are still in force today. The Acts were drafted by the promoting company’s legal advisers or Parliamentary agents and the drafting was not usually in accordance with the style of drafting adopted nowadays.

4.9 The practice of using special Acts continued through the late nineteenth century and throughout most of the twentieth century. By the 1990s, the volume of new private legislation being promoted was much less than during the Victorian era. Nevertheless, by that time Parliament had become dissatisfied with the system of authorising the construction of railways and other works by means of private legislation. Members of Parliament were also critical of the disproportionate amount of Parliamentary time that was being taken to debate proposals that were often purely of local significance. It was against this background that legislation

was passed to introduce a new system for the authorisation of railways by means of orders that would not in most cases take up Parliamentary time.⁴

THE MODERN SYSTEM: THE TRANSPORT AND WORKS ACT 1992 AND TRANSPORT AND WORKS (SCOTLAND) ACT 2007

4.10 The Transport and Works Act 1992 introduced a new order-making procedure. While the 1992 Act applies to Scotland as well as to England and Wales, the new procedure set out in Part 1 of the 1992 Act applies in practice to England and Wales only. At the time of the passing of the 1992 Act, Scotland had its own system for the promotion of private legislation in the UK Parliament⁵ and it was considered that that system should remain in place. However, in 2007 the Scottish Parliament enacted similar order-making powers to those in Part 1 of the 1992 Act, in the Transport and Works (Scotland) Act 2007. The intention behind both Transport and Works Acts was to provide a modern system for authorising works and to remove the need to have recourse to private Acts of either the UK Parliament or Scottish Parliament.

4.11 The 1992 and 2007 Acts apply to certain types of works including “railways”.⁶ Although use of the order-making procedures under the Acts is not compulsory, where an infrastructure project requires compulsory purchase powers or the creation or extinguishment of rights over land, the transport and works procedure is usually adopted.⁷ Both major and minor projects may be subject to a transport and works order, although in practice the process tends to be used for large scale schemes. In addition, a wide range of matters may potentially be covered by a transport and works order. A non-exhaustive list of such matters is set out in Schedule 1 to both Acts and includes:

The construction, alteration, repair, maintenance, demolition and removal of railways, tramways, trolley vehicle systems and other transport systems within section 1(1) of this Act, waterways, roads, watercourses, buildings and other structures.

4.12 Applications for orders under the 1992 Act for works wholly within England are dealt with by the Secretary of State, while applications for works wholly within Wales are decided by the Welsh Assembly Government. Where proposed works would take place both in England and Wales, the Secretary of State will take the decision, but is required to secure the agreement of the Welsh Assembly Government prior to making an order. Applications for orders under the 2007 Act are dealt with by Scottish Ministers.

4.13 The procedure for applying for an order under the 1992 and 2007 Acts is set out in the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006 and the Transport and Works (Scotland) Act 2007

(Applications and Objections Procedure) Rules 2007.⁸ The Rules provide for appropriate publicity to be given to the proposals, and set out a timetable for the making of objections to the proposals. If there are no objections, the Secretary of State/Welsh Assembly Government or in Scotland, the Scottish Ministers, can proceed to determine the application.

4.14 If objections are received, the Secretary of State or Scottish Ministers may consider the objections by means of:

(1)

a public local inquiry; or

(2)

a hearing; or

(3)

an exchange of written representations between the parties.⁹

9

4.15 An inquiry or hearing must be held if a “statutory objector” informs the Secretary of State or the Scottish Ministers that they wish their objection to be referred to an inquiry or hearing. Statutory objectors include the local authorities for the areas in which the works would be carried out and people whose land would be compulsorily purchased.¹⁰ In Scotland, Network Rail Infrastructure Limited is specifically mentioned as a statutory objector, in cases where any works authorised by the proposed order would affect the construction or operation of a railway.¹¹

4.16 After considering objections, the Secretary of State or Scottish Ministers may refuse to make an order, or may make the order with or without modifications to the draft order submitted by the applicant.¹²

4.17 Section 9 of the Transport and Works Act 1992 in relation to England and Wales requires schemes that the Secretary of State considers to be of national significance to be referred to the UK Parliament for approval. The parliamentary procedure under section 9 gives both Houses of Parliament the opportunity to consider and decide whether to endorse the proposal in principle. If both Houses of Parliament approve the proposal it will go forward to a public inquiry. Section 13 of the Transport and Works (Scotland) Act 2007 makes similar provision for approval by the Scottish Parliament.

8

SI 2006 No 1466 and SSI 2007 No 570.

See Department for Transport, A Guide to Transport and Works Act Procedures (2006) and Scottish Government, Guide to Transport and Works (Scotland) Act 2007 (2007).

¹⁰ Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006, r 9, 12, 14, 15, and 23; Transport and Works Act 1992, s 11(4).

¹¹ Transport and Works (Scotland) Act 2007, s 9(4)(e).

¹² Transport and Works Act 1992, s 13; Transport and Works (Scotland) Act 2007, s 11.

4.18 It will be seen that the 1992 and 2007 Acts provide a thorough process, designed to test the desirability of the schemes promoted under them. There have now been a number of years of experience of the 1992 Act, including a comprehensive review leading to substantial revisions of the procedural advice in 2006.¹³ The result has been an attempt to ensure that the procedures are flexible and proportionate to the wide range of matters which may be the subject of an application under the 1992 Act. For example, the procedural requirements, application fee and likely timescales for determining applications are much less for a simple order transferring assets from one party to another, or an order authorising a short extension to a heritage railway, than for a major scheme like a new tramway or the West Coast Main Line upgrade.¹⁴

4.19 Nevertheless, we consider that in the context of level crossings, the procedure is still at least potentially expensive and time-consuming. Indeed, in practice the procedure may be more onerous than the Acts alone or Rules would suggest. Comprehensive guidance on the use of the procedure makes clear, for instance, that full consultation should have taken place with interested parties before an application for an order is made. Also the Secretary of State or Scottish Ministers must, among other things, be satisfied that the scheme is reasonably capable of attracting funding and that the environmental statement required by the Rules is full and robust.¹⁵

4.20 Under the Department for Transport guidance, promoters of railway schemes in England and Wales using the procedure under the Transport and Works Act 1992 are advised to consult appropriate bodies including the Office of Rail Regulation (ORR) before applying for an order. In relation to level crossings, the guidance says that ORR should be consulted “at an early stage to ascertain whether they consider that there are exceptional circumstances which would justify providing a level crossing as opposed to a bridge or tunnel”.¹⁶

4.21 ORR takes the view that other than in exceptional circumstances, there should be no new level crossings on any railway.¹⁷ It would appear, therefore, that although it is possible to authorise a new level crossing over a new railway, promoters may have a considerable task to justify the use of a level crossing, rather than a bridge or an underpass.

THE MODERN SYSTEM: PRIVATE AND HYBRID LEGISLATION

4.22 It is still possible for railway development to be authorised by either the United Kingdom Parliament or the Scottish Parliament by means of private legislation. However, private legislation is in practice now unlikely where a transport and

¹³ Department for Transport, Guide to Transport and Works Act Procedures (2006).

¹⁴ Only one order has been made so far in Scotland using the powers under the 2007 Act: The Network Rail (Waverley Steps) Order 2010, SSI 2010 No 188.

¹⁵ Department for Transport, A Guide to Transport and Works Act Procedures (2006) and Scottish Government, Guide to Transport and Works (Scotland) Act 2007 (2007).

¹⁶ Department for Transport, A Guide to Transport and Works Act Procedures (2006). The Guide to Transport and Works (Scotland) Act 2007, Scottish Government does not appear to cover this point.

¹⁷ ORR policy on level crossings is available at http://www.rail-reg.gov.uk/upload/pdf/319.pdf (last visited 27 June 2010).

works order could be made.¹⁸

4.23 Where the Government is promoting major works, it may do so by means of a hybrid Bill in the United Kingdom Parliament.¹⁹ A hybrid Bill is a public Bill, but one that treats private rights within the same class differentially (as would a private Bill, promoted by a private party):

Hybrid bills are public bills which are considered to affect specific private or local interests, in a manner different from the private or local interests of other persons or bodies of the same category, so as to attract the provisions of the standing orders applicable to private business.²⁰

4.24 A hybrid Bill may be necessary where the scheme requires a range of powers which are not available under the Transport and Works Acts or where a mix of public and private powers is involved. It may also be desirable to use the hybrid Bill procedure so as to enable a greater degree of Parliamentary debate than would be possible in relation to a transport and works order, even where such an order relates to a scheme of national significance in which case a certain amount of Parliamentary scrutiny is involved.²¹

THE MODERN SYSTEM: POWERS UNDER TOWN AND COUNTRY PLANNING LEGISLATION

4.25 Where a transport and works order is used, the Secretary of State or Scottish Ministers may deem planning permission to have been granted in respect of the proposed works.²² In addition, Network Rail is deemed to have planning permission to undertake certain developments on its own operational land, without having to submit an application to the local planning authority for planning permission.²³ In the case of minor developments – for example, constructing a new private footpath crossing – it seems that no particular authorisation or planning consents would be required.

¹⁸ In Scotland private legislation has been used in recent years to authorise new railways for example the Waverley Railway (Scotland) Act 2006, the Stirling-Alloa-Kincardine Railway and Linked Improvements Act 2004 and the Airdrie-Bathgate Railway and Linked Improvements Act 2007. These Acts were passed using the private legislation procedure before the Transport and Works (Scotland) Act 2007 and the new system of orders came into force.

¹⁹ Hybrid Bills may also be passed by the Scottish Parliament to authorise the construction or alteration of works or to authorise the compulsory acquisition or use of any land or buildings.

²⁰ Sir William McKay KCB, Erskine May, Parliamentary Practice (23rd ed 2004) p 566.

²¹ Transport and Works Act 1992, s 9.

²² Town and Country Planning Act 1990, s 90(2A); Town and Country Planning (Scotland) Act 1997, s 57(2A).

²³ Town and Country Planning (General Permitted Development) Order 1995, SI 1995 No 418, art 3 and sch 2, part 17, class A (development by railway undertakers) as regards England and Wales; Town and Country Planning (General Permitted Development) (Scotland) Order 1992, SI 1992 No 223, art 3, sch 1, part 13, class 34 (development by railway undertakers).

4.26 In relation to England, the Planning Act 2008²⁴ is intended to cover at least some of the kinds of major works which are currently authorised under the Transport and Works Act 1992. As outlined above, the 1992 Act makes specific provision for schemes of national significance. Such a scheme would appear likely to be a “nationally significant infrastructure project” under the Planning Act 2008 and also the subject of a National Planning Statement. The 2008 Act asserts its primacy over the 1992 Act – if a scheme requires development consent under the Planning Act 2008 it may not be authorised under the 1992 Act.²⁵ Where a scheme is wholly within Wales, or straddles the border between England and Wales, the procedure under the Transport and Works Act 1992 will remain relevant. The Planning Act 2008²⁶ does not prevent the possibility of a hybrid Bill for railway schemes.

NEW LEVEL CROSSINGS ON EXISTING RAILWAY LINES

4.27 One further situation requires some consideration: how would a new level crossing be created over an existing line? We should preface this discussion by noting that it is not apparent to us that there is a substantial demand for new level crossings on existing lines. It is, however, possible that such a development would be desirable in exceptional circumstances. One such exceptional circumstance might be if a “new” level crossing was required to replace a nearby level crossing, where closure was justified on the grounds of safety or convenience, but the expenditure on a replacement bridge or underpass could not be justified.²⁷ Another situation might be where it is desired to bring back into use a level crossing which was previously closed.²⁸

4.28 It may be that no special legal difficulties would arise if the building of a new crossing was uncontentious. A railway operator may be able to build the crossing without recourse to compulsory purchase powers, and to grant a private or public right of way,²⁹ over the railway.

4.29 If compulsory purchase powers were needed, it would be possible to use the transport and works order procedure (there might be other circumstances in which this would be the desirable course), but the procedure may be seen as overly expensive and time-consuming for individual level crossings.

CONCLUSION

4.30 It seems to us that on the whole the modern system as outlined above is appropriate and works well. However, we would welcome the views of

²⁴ There is currently no equivalent legislation in Scotland.

²⁵ Planning Act 2008, s 33(2)(c).

²⁶ The Planning Act 2008 is discussed in relation to Wales in Parts 2 and 9.

²⁷ The diversion of level crossings is discussed in more detail in Part 6 in connection with section 119A of the Highways Act 1980 in relation to England and Wales.

²⁸ A situation like this arose in the case of Robertson v Network Rail Infrastructure Ltd Inverness Sheriff Court, 28th May 2007 http://www.scotcourts.gov.uk/opinions/A161_06.html (last visited 27 June 2010) unreported.

²⁹ But note the possible limitations on the ability of a railway operator to grant a right of way across the railway discussed in Parts 11 and 12.

consultees on the current system of creating level crossings.

4.31 The one possible exception is in relation to the creation of new level crossings on existing railway lines. We consider the desirability of a new procedure for creating level crossings in Part 8.

INTRODUCTION

5.1 In this Part we consider the current provisions regulating safety at level crossings. We consider first the railway-specific regulatory provisions, then the general safety regime provided for by the Health and Safety at Work etc Act 1974 (HSWA 1974). Finally, we consider the relationship between level crossing-specific provisions and the general safety regime.

RAILWAY-SPECIFIC SAFETY PROVISIONS

5.2 The early railway-specific safety provisions can be found in a mixture of public general Acts¹ and special (private) Acts which established the railways. The Railways Clauses Consolidation Act 1845 and the Railways Clauses Consolidation (Scotland) Act 1845² provided model clauses (often dealing with safety matters) which were deemed to be incorporated into special Acts unless specifically excluded or varied. The Railways Clauses Act 1863 also provided model clauses which applied to special Acts if the clauses were expressly included in the Acts.

5.3 The early legislation required the railway companies to provide “good and sufficient gates” across the road on either side of the railway and to employ people to open them. It also required railway companies to provide gates or stiles for bridleway and footpath crossings.³ A model clause prevented trains being shunted across level crossings or left to stand on them.⁴ The Road and Rail Traffic Act 1933 gave the Secretary of State power to direct that gates on any level crossing over a public road should be kept closed across the railway rather than across the road.

5.4 Another relevant provision which remains in force is section 123 of the Transport Act 1968. That section gives highway authorities and local authorities in England and Wales, and roads authorities in Scotland, the power to contribute to expenses incurred by a railway owner in providing barriers, or other devices, for the protection or convenience of the public at or near any level crossing.

Level Crossings Act 1983

5.5 The main purpose of the 1983 Act was to provide a simpler way of making changes to the safety arrangements at level crossings. The 1983 Act was required because at that time changes to safety arrangements at such crossings

could only be made by private legislation or in some cases light railway orders, both of which involved “costly and time consuming procedures”.⁵ The new order-making procedure was seen as a better way of enabling such changes to be made.

5.6 The 1983 Act authorises the Secretary of State to make level crossing orders for the protection of those using a level crossing. In practice, the power to make level crossing orders is now frequently exercised by the Office of Rail Regulation under an Agency Agreement between the Secretary of State and ORR.⁶

5.7 An order can make such provision as the Secretary of State considers “necessary or expedient for the safety or convenience of those using the crossing”. As we mentioned in Part 1, this power reflects the need to strike a balance between safety considerations and matters of convenience.

The definition of “level crossing” in the 1983 Act

5.8 The 1983 Act defines a “level crossing” as any place where a railway crosses a “road” on the level.⁷ This definition is, of course, much narrower than the definition we have adopted for this project, as it is intended to operate only for the purposes of the 1983 Act order-making power. As we mentioned briefly in Part 1, there are, however, important differences in the definition of “road” in relation to England and Wales, on the one hand, and in relation to Scotland, on the other.

5.9 In relation to England and Wales, a “road” is “any highway or other road to which the public has access”.⁸ This definition covers all highways, including non-vehicular ones. The term “road to which the public has access” extends the definition to cover ways that can properly be described as “roads” (a matter of fact) where the public has lawful access by permission or tolerance.⁹ Therefore, in relation to England and Wales, the 1983 Act applies to all public level crossings (where the railway crosses a highway) and some private level crossings where the public has been granted access (or takes access not unlawfully) to the level crossing, even though there is no public right of way over the level crossing.

5.10 The question is – in how many cases does the public have lawful access to private level crossings in England and Wales? We think it unlikely that there will be many cases. It is not enough that the public has access to a private level crossing as a matter of fact. The owner must permit the public to use the right of way. It is not sufficient for permission to extend to the landowner’s employees or other specific licensees. Alternatively, the public use, while not permitted, must not be unlawful in the sense that it would negative the acquisition of a right of way

417.

by prescription.¹⁰ We think it is unlikely that many purely private crossings (where there is no highway or road) fall into either of these categories. On the other hand, one situation where a level crossing might fall within these categories is where a single crossing accommodates both a private road and a highway in the form of a footpath or bridleway. Although it would be a matter of fact, in the vast majority of such cases we would expect the footpath or bridleway to cross the railway on the same line as the private road. At that point (even if not elsewhere), the private road would be a “road to which the public has access”.

5.11 In relation to Scotland, “road” is defined in section 1(11) of the 1983 Act as having the same meaning as in section 151(1) of the Roads (Scotland) Act 1984. Accordingly, it is defined as “any way…over which there is a public right of passage…by whatever means”. This definition would include footpaths and bridleways. Recent guidance on the meaning of the term “public right of passage” was provided by the decision of the Inner House, of the Court of Session in the case of Hamilton v Dumfries and Galloway Council.¹¹ The Court took the view that before a right can be said to be a “right of passage”, it must be “no less extensive, and no less enforceable, than a right of way”.¹² In other words, a public right of passage does not automatically exist over a way to which the public has access by permission; in order for there to be a public right of passage, a right of way must be capable of being established over the way in question. The effect of this decision is that, in relation to Scotland, and unlike the position in England and Wales, where the railway crosses a way over which the public has lawful access, but no enforceable right of way, the level crossing concerned is not covered by the Level Crossings Act 1983.

5.12 The consequence of the definitions of “road” is that in England and Wales the 1983 Act does not, we think, apply to the majority of private level crossings, as they involve neither a highway nor a road to which the public has lawful access. In Scotland, in view of the recent case law on the meaning of “public right of passage”, the 1983 Act does not apply to any private level crossings.

Level crossing orders

5.13 Level crossing orders apply to individual level crossings. The Secretary of State can specify such protective equipment as considered necessary for the “safety or convenience of those using the crossing”.¹³

5.14 The main steps in the order-making procedure are contained in section 1 of the 1983 Act. However, these are supplemented by guidance issued by ORR.¹⁴

5.15 The Secretary of State may make an order either following a request by the railway operator (currently Network Rail for the mainline network) or without such

¹⁰ This is discussed further in Part 12.

¹¹ 2009 SC 277.

¹² See paragraph 61 of Lord Reed's judgment.

¹³ Level Crossings Act 1983, s 1(2).

¹⁴ ORR, Guide to Level Crossing Order Submissions (Issue 2 January 2008), http://www.railreg.gov.uk/upload/pdf/lx-submiss_guide2.pdf (last visited 27 June 2010). A note at the beginning of the guidance states that it is “issued as informal guidance and does not have legal authority”.

a request.¹⁵ In most cases the order is made following a request from the operator.¹⁶ However, in some cases this may obscure what is actually happening

– the operator may have been placed under a duty to make a request, ORR having given written notice to the operator to do so.¹⁷

5.16 It should be noted that if ORR issues a notice requiring the railway operator to request an order and the operator fails to do so, ORR has two options: it may issue an improvement or prohibition notice under HSWA 1974 to require compliance with the notice,¹⁸ or it may advise the Secretary of State to make an order without a request.¹⁹

5.17 Under section 1 of the 1983 Act, before making an application for an order, the railway operator is required to give notice to the local traffic authority in whose area the level crossing is situated and to ORR of its intention to apply for an order. The notice of intention should be accompanied by a draft of the order sought specifying the period (not less than two months) within which the local traffic authority and ORR may make representations to the Secretary of State. If the Secretary of State makes the order without a request from the operator then the same consultation requirements apply. Before making the order, the Secretary of State must consider any representations made, provided that they are made within the specified time period.

5.18 A level crossing order may require the crossing operator or (following amendments to the 1983 Act by the Road Safety Act 2006) the local traffic authority, or both, to provide, maintain and operate specified protective equipment at or near the crossing.²⁰

5.19 An order may include provisions relating to protective equipment that is already in place. Under section 1(2)(b) of the 1983 Act, requirements as to the operation of the railway at or near the crossing may be imposed on the operator.

5.20 Regulation 3 of the Level Crossings Regulations 1997,²¹ made under section 15

¹⁵ Level Crossings Act 1983, s 1(6).

¹⁶ “Operator” is defined in s 1(11) of the Level Crossings Act 1983 in effect to mean the operator of the railway network, that is, Network Rail, heritage and private operators.

¹⁷ Level Crossings Act 1983, s 1(6A). This appears to be a somewhat cumbersome procedure.

¹⁸ Health and Safety at Work etc Act 1974, ss 21 and 22. ORR is made responsible for issuing improvement and prohibition notices under the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006, SI 2006 No 557, reg 4(4).

¹⁹ ORR, Guide to Level Crossing Order Submissions (January 2008) p 17, para 5.

²⁰ Section 1(11) of the 1983 Act adopts the definition of “local traffic authority” in the Road Traffic Regulation Act 1984. According to s 121A(5) of the 1984 Act, the term means in England and Wales a traffic authority other than the Secretary of State, who in turn is the traffic authority for every highway for which he or she is the highway authority under the Highways Act 1980. In other words, “local traffic authority” is usually the relevant county council or metropolitan district council. In relation to Scotland the local traffic authority is a traffic authority other than the Secretary of State or the Scottish Ministers. In other words, it is the council as constituted under section 2 of the Local Government etc Scotland Act 1994 within whose area the road is located.

²¹ SI 1997 No 487.

of HSWA 1974, imposes a duty on the railway operator to ensure that the requirements of a level crossing order under the 1983 Act are complied with.²² If an order is not complied with, ORR may issue the railway operator with an improvement notice under section 21 of HSWA 1974 or a prohibition notice under section 22 of the Act, or prosecute the railway operator.²³ Improvement and prohibition notices may be used to enforce level crossing orders because the 1997 Regulations create a duty on the operator of a railway to comply with a level crossing order. Section 15 of HSWA 1974, as read with section 53 of the Act, provides that regulations made under section 15 of the Act are “health and safety regulations”. In terms of section 53, health and safety regulations are “relevant statutory provisions” for the purposes of the Act. Accordingly, the 1997 Regulations are health and safety regulations and hence “relevant statutory provisions”. Sections 21 and 22 of HSWA 1974 allow the use of improvement or prohibition notices as part of the enforcement powers under the Act where “relevant statutory provisions” are contravened.

5.21 An improvement notice requires the operator to remedy the situation within a specified time. Prohibition notices are issued where ORR considers that there is a risk of injury to a person as a result of an activity. The notice directs the operator to stop activities until matters specified in the notice have been remedied. The legislative route to the use of improvement and prohibition notices under HSWA 1974 in connection with enforcement of a level crossing order is extremely complicated. We discuss this further below.

The relationship between special Acts and level crossing orders

5.22 The relationship between special Acts and level crossing orders is governed by section 1(3)(b) of the 1983 Act, as read with section 1(4A). Section 1(3)(b) provides that while an order is in force in relation to a level crossing:

subject to any exceptions specified in the order, any provision made by or under any enactment as to the crossing … and imposing requirements as to … protective equipment at or near the crossing, the supervision of the crossing … or the operation of the railway at or near the crossing shall not apply in relation to the crossing.

5.23 Where a level crossing order is in force, (and subject to any provision in the order to the contrary) section 1(3)(b) disapplies any requirements in special Acts (or, subject to section 1(4) and (4A), in other legislation). What it does not do is repeal existing enactments. Consequently, in the event of a level crossing order ceasing to be in force, any provision in an enactment which makes provision in relation to the crossing will once again apply to that crossing.

²² It should be noted that a breach of a level crossing order is an offence under regulation 3 of the Level Crossings Regulations 1997, SI 1997 No 487 and so can be prosecuted as an alternative to issuing an improvement or prohibition notice under HSWA 1974.

²³ In Scotland, prosecution is a matter for the Procurator Fiscal. It is worth noting that the Inner House of the Court of Session in Clegg v Rogerson 2008 SLT 345, held that a railway operator may be liable in the law of negligence, despite having fulfilled specific requirements, for example as laid down in a level crossing order.

Orders under the British Transport Commission Act 1957 and the Transport Act 1968

5.24 Orders made under section 66 of the British Transport Commission Act 1957 or section 124 of the Transport Act 1968 and in force immediately before 1 April 1997 are saved by section 1(10A) of the Level Crossings Act 1983.²⁴ Such orders have effect as if they had been made under the 1983 Act. Henceforth, we do not generally refer to orders under the 1957 and 1968 Acts, but they should be understood as being included when we refer to orders under the 1983 Act.

GENERAL SAFETY REGIME

5.25 In this section we consider the general legislation which regulates health and safety in the UK and how this interacts with the railway-specific safety provisions referred to in the preceding section. While railway safety is governed by the general scheme under HSWA 1974, special Acts and level crossing orders continue to play a role in regulating safety at level crossings.

5.26 Part 1 of HSWA 1974 introduced a general statutory framework regulating health and safety in the UK and established the Health and Safety Commission (HSC) and Executive (HSE).²⁵ Part 1 of HSWA 1974 does four things of particular relevance to the regulation of level crossings:

(1)

it sets out general duties in relation to health and safety;²⁶

(2)

it provides powers to make health and safety regulations, which allow for tailored provision to be made in respect of particular industries or settings;²⁷

(3)

it contains a power to issue guidance in the form of approved codes of practice;²⁸ and

(4)

it creates an enforcement regime for the general duties and regulations made under Part 1 of the Act.²⁹

5.27 The general purposes of Part 1 of HSWA 1974 are set out in section 1(1). These include:

(a)

securing the health, safety and welfare of persons at work;

(b)

protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work … .

²⁴ Although section 66 of the 1957 Act and section 124 of the 1968 Act have been repealed, orders made under those provisions may still be in existence.

²⁵ Health and Safety at Work etc Act 1974, s 10(1). The HSC/HSE were subsequently abolished, and a new Health and Safety Executive was created: Legislative Reform (Health and Safety Executive) Order 2008 (SI 2008 No 960).

²⁶ Health and Safety at Work etc Act 1974, ss 2-4

²⁷ Health and Safety at Work etc Act 1974, s 15.

²⁸ Health and Safety at Work etc Act 1974, s 16.

²⁹ Health and Safety at Work etc Act 1974, ss 18-26.

5.28 Section 1(2) of HSWA 1974 envisaged that regulations and codes of practice made under the Act would “progressively replace” existing legislative provisions relating to health and safety. Schedule 1 to HSWA 1974 lists a number of “existing statutory provisions”, such as the Offices, Shops and Railway Premises Act 1963 that are to continue in force until they are progressively replaced under Part 1 of HSWA 1974.

Part 1 of HSWA 1974 and the general health and safety duties

5.29 The general health and safety duties set out in sections 2-4 of HSWA 1974 are relevant to level crossings. These provide for:

(1)

general duties on employers to do all that is reasonably practicable to protect the “health, safety and welfare at work of all of [their] employees” (section 2);

(2)

general duties to ensure that, in conducting their business, employers or self-employed persons do not endanger the health and safety of those not in their employment (section 3); and

(3)

general duties relating to those who have control of non-domestic premises, in relation to those who use such premises who are not their employees (section 4).

5.30 For the purposes of this project, sections 3 and 4 are particularly relevant. Neither is limited to the protection of employees. Section 3 in particular is aimed at protecting the general public against risks to health and safety caused by undertakings.

5.31 We now consider the application of HSWA 1974 to each of the following:

(1)

railways;

(2)

highways/roads; and

(3)

other duty-holders in relation to level crossings.

Application of HSWA 1974 to railways

5.32 It was not until the Railways Act 1993 that the system for securing safety on the railways generally was fully assimilated with the HSWA 1974 system. Up until that time, British Rail and other rail operators, as employers, were covered by the general duties in Part 1 of HSWA 1974 and regulations made or enforced under the Act.³⁰ However, the specific legislation governing railway safety had not been brought into the HSWA 1974 system until the enactment of section 117 of the Railways Act 1993. That section deemed a list of provisions relating to railway safety to be “existing statutory provisions” within the meaning of Part 1 of HSWA 1974, thus bringing them into the general scheme of the Act and applying its enforcement provisions to them. The Level Crossings Act 1983 is one of the listed provisions.

³⁰ Health and Safety Commission, Ensuring Safety on Britain’s Railways (1993).

5.33 It appears that initially there was also some doubt as to whether the “general purposes” set out in HSWA 1974 applied to certain safety matters relating to the railways. However, HSE considered themselves to be responsible for enforcing the the general duties under HSWA 1974 in relation to the railways, since the coming into force of HSWA 1974.³¹ But to resolve the possible doubt section 117(2) of the 1993 Act specified that, “[i]f to any extent they would not do so apart from this subsection”, the general purposes of HSWA 1974 would include a widely-stated set of railway safety purposes.

5.34 As noted above, section 117 of the Railways Act 1993 deems the Level Crossings Act 1983 in its entirety to be an “existing statutory provision”. Section 53 of HSWA 1974 defines an “existing statutory provision” as:

[T]he provisions of the Acts mentioned in Schedule 1 which are specified in the third column of that Schedule and of the regulations, orders or other instruments of a legislative character made or having effect under any provision so specified.

5.35 In law, therefore, all orders made under the Level Crossings Act 1983 are caught by the definition in HSWA 1974 of “existing statutory provisions” and so are subject to the enforcement provisions of HSWA 1974. Under HSWA 1974, HSE is in most cases the enforcement authority as regards compliance with the Act. However, in relation to certain aspects of railway regulation, ORR is the enforcement authority. Regulations make ORR the “enforcing authority” and set out ORR’s enforcement responsibilities in relation to safety on the railways, including level crossings.³²

5.36 The Level Crossings Act 1983 gives the Secretary of State power to make provision in a level crossing order “for the safety or convenience of those using the crossing”.³³ This opens up the possibility that there are two sorts of orders, or parts of orders, under the Level Crossings Act – “safety” orders and “convenience” orders. On the face of it, the notion of an order making provision for “convenience” would seem to go beyond the concerns of HSWA 1974, which is only concerned with health and safety. But in practice, the line between “safety” and “convenience” will frequently be blurred or non-existent. The overall objective of the Level Crossings Act 1983 is to enable the Secretary of State to make orders to “provide for the protection of those using the level crossing”. Even an adjustment made to protective equipment to make it more “convenient” is still about ensuring safety, which is the overall function of the protective equipment. Orders making provision as regards the “convenience” may be necessary to prevent ill-disciplined use of a crossing. But the reason for this is a safety one – ill-disciplined use is a threat to the safety of crossing users. It is therefore understandable that the law does not make separate provision for the enforcement of “safety orders” and “convenience orders”; and the assimilation of both to the safety regime under the 1993 Act is rational and appropriate.

³¹ See Health and Safety Commission, Ensuring Safety on Britain’s Railways (1993).

³² Railways Act 2005, sch 3, paras 2 to 4; The Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006, SI 2006 No 557, reg 3.

³³ Level Crossings Act 1983, s 1(2).

Application of HSWA 1974 to highways/roads authorities

5.37 The large majority of public level crossings involve highways/roads which are the responsibility of local authorities, acting as highway or roads authorities. In a small number of cases, the highway authority will be the Secretary of State (who exercises these functions in England through the Highways Agency), or Welsh Ministers. In Scotland, local councils are roads authorities in respect of most roads in their area, although in the case of trunk roads in Scotland, the Scottish Ministers are the roads authority.³⁴ Where the highway or roads authority is the relevant local authority this is normally referred to as the local highway/roads authority. The legal consequences will be the same where the highway or roads authority is not a local authority.

5.38 The relevant general duty in Part 1 of HSWA 1974 is found in section 3, which provides:

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

5.39 The key phrase is “conduct his undertaking”. The expression is not defined in the Act. It is a matter of fact, about which there are no “rigid rules”.³⁵

5.40 The performance of statutory functions by local authorities counts as “conduct” of its “undertaking” for the purposes of section 3 of HSWA 1974 in England and Wales.³⁶ We believe the same approach would be taken by the Scottish courts if the matter were to come before them. However, the nature of the “undertaking” of a statutory authority is not necessarily the same as that of a private individual. We are not aware of any authority directly on the point. However, we consider that what does and does not count as the “undertaking” of a local highway/roads authority will depend not only on the objective facts of the case, but also on the form and limits to the functions of the local highway/roads authority which are engaged by the case. Section 3 operates by instructing local authorities how to “conduct” their “undertaking” (that is, that they should do so in such a way as to ensure they minimise risks to health and safety). But to determine what a local highway/roads authority’s “undertaking” is, one must look to its statutory functions. The application of section 3 will be determined by the way in which the “undertaking” of a local highway/roads authority is defined.

5.41 The “functions” of local highway/roads authorities include both powers and duties. The distinction may be important in determining whether an act or an omission is included within the notion of “conduct” in section 3.

³⁴ In relation to the vast majority of public roads in Scotland, the roads authority is the local council constituted in terms of section 2 of the Local Government etc (Scotland) Act 1994 within whose area the road is located. The only exceptions to this apply in relation to special roads, trunk roads and roads created by the Scottish Ministers in terms of section 19 of the Roads (Scotland) Act 1984.

³⁵ R v Associated Octel Co Ltd [1996] 4 All ER 846 at 852.

³⁶ R (Hampstead Heath Winter Swimming Club and Another) v Corporation of London and another [2005] 1 WLR 2930.

5.42 The key duty of local highway authorities (and where appropriate the Secretary of State as highway authority) in England and Wales is that contained in section 41 of the Highways Act 1980; that is, the duty to maintain the highway. Maintain includes repair. In Scotland a similar duty is placed on local roads authorities (and where appropriate the Scottish Ministers as roads authority) under sections 1 and 2 of the Roads (Scotland) Act 1984. In discharging its duty to maintain, a local highway/roads authority must be conducting its undertaking under section 3 of HSWA 1974. But if that is so, then the ambit of section 3 will be coterminous with that of section 41 of the 1980 Act and sections 1 and 2 of the 1984 Act. That means that if an act or omission is not covered by section 41 or sections 1 and 2, because of some qualification or exception to the duty, then neither would it be part of the conduct of the authority’s undertaking. This is important, because the duty to maintain does not include a duty to erect road signs, nor to paint warnings on the surface of the road.³⁷ Under section 65 of the Road Traffic Regulation Act 1984, traffic authorities have a power, but not a duty, to erect traffic signs.³⁸

5.43 The extent to which a public authority can be judicially reviewed in relation to its use of a power is limited. The Administrative Court will intervene, on an application for judicial review if, for example, the authority contravenes or exceeds the terms of a power, uses a power for an objective other than that for which it was conferred, or does something that is not authorised by the power.³⁹ The law in Scotland is similar. If a decision-making process is procedurally flawed then its decision will also be reviewable. But, if the section 3 duty only comes into play when public authorities are exercising public law powers or duties, section 3 cannot be used to require more than public law would. If a decision not to exercise a power to erect a sign at a level crossing was flawed in a public law sense, then the section 3 duty would bite, and the authority may be liable under health and safety law as well as public law. But health and safety law cannot expand on the underlying public law position. Section 3 cannot be used to transform the power to erect signs into a duty to erect signs.

5.44 Local highway/roads authorities are under a relevant duty (for the purposes of section 3 of HSWA 1974) set out in section 39 of the Road Traffic Act 1988.⁴⁰ This requires a relevant local authority to prepare and carry out a programme of measures to promote road safety, to undertake studies of accidents and, in light of them, take appropriate action to prevent accidents. Such action would include the exercise of the authority’s powers to erect signs or paint warnings on roads. Section 39 has been described as the statutory recognition of professional risk assessment processes.⁴¹ However, individuals cannot sue highway authorities for breach of this duty (nor is there a parallel common law duty of care in negligence), unlike the duty to maintain the highway discussed above. Rather,

³⁷ Lavis v Kent County Council (1992) 90 LGR 416 (CA); Gorringe v Calderdale Metropolitan District Council [2004] UKHL 15, [2004] 1 WLR 1057.

³⁸ The power under section 65 is placed on traffic authorities. Traffic authorities in England and Wales are broadly equivalent to highway authorities. In Scotland traffic authorities are broadly equivalent to roads authorities.

³⁹ See generally H Woolf, J Jowell, A le Sueur, De Smith’s Judicial Review (6th ed 2007) para 5-002.

⁴⁰ Section 39 of the 1988 Act confers duties on “relevant local authorities” but in practice such authorities are the same as local highway/roads authorities.

⁴¹ Great North Eastern Railway Limited v Hart [2003] EWHC 2450 (QB) at [54].

section 39 is a “target duty” giving the authority a wide discretion.⁴²

5.45 Carrying out the kind of risk assessments envisaged by section 39 is a purely public law duty. If a local authority failed to discharge the duty, it could be judicially reviewed. Discharging the duty (and the failure to do so) would also, therefore, be within the “conduct” of the authority’s “undertaking”, and so the duty in section 3 of HSWA 1974 would be engaged. However, the section 3 duty cannot go beyond the underlying statutory duty. In our view, the duty would be discharged by the proper undertaking by the authority of the kind of risk assessments contemplated by section 39. It would be a very rare case in which a specific failure to provide a sign at a level crossing would be judicially reviewable on the basis that it was a breach of the duty under section 39.

5.46 We consider that the consequences of this are as follows. First, where a highway authority is bound by the duty to maintain, it would be in breach of its responsibilities under section 3 of HSWA 1974 if in doing so it endangered the health and safety of non-employees.⁴³ Just as a failure to act can be a breach of the duty to maintain, so a failure to act could open a highway authority to liability under section 3 if the failure endangered health and safety in the same way. The result of this is that the enforcement procedures under HSWA 1974, including prosecution for criminal offences, could be used to prevent highway authorities failing to protect safety by adequately maintaining the highway (as required by section 41 of the Highways Act 1980) at a level crossing.

5.47 Second, the extent to which section 3 can be used in relation to the erection of signs and painting of warnings on the road is significantly more limited. Neither the power to erect signs under section 65 of the Road Traffic Act 1988, nor the duty to undertake risk management under section 39 of the 1988 Act, are likely in most cases to require a traffic authority to erect a specific sign at a particular level crossing (provided the decision-making process concerned was not flawed).

Application of HSWA 1974 to other duty-holders in relation to level crossings

5.48 A wide variety of people hold rights of way over the railway. Many of these rights are exercised for work-related purposes. Commonly, a private level crossing will have been created to accommodate a landowner in using the land on each side of the railway, for example, for agricultural purposes. Where the rights of way are exercised for employment or self employment purposes, section 3 of HSWA 1974 will apply. That section applies to both employers and the self-employed in the “conduct” of their “undertaking” and therefore they would be under a duty to do all that is reasonably practicable to ensure that, in their use of the level crossing, they do not expose others to safety risks.

5.49 However, where the use of a private crossing is not related to a business or other undertaking, clearly there will be no duty imposed on a user by HSWA 1974. This will occur, for example, where a person has a right over the railway at the level crossing to allow ordinary social access to his or her property.

⁴² Gorringe v Calderdale Metropolitan District Council [2004] UKHL 15, [2004] 1 WLR 1057.

⁴³ Subject to the test under the Health and Safety at Work etc Act 1974 which requires duty-holders to minimise risk so far as is reasonably practicable.

Regulations under HSWA 1974

5.50 Section 15 of HSWA 1974 gives the Secretary of State a wide power to make regulations regarding health and safety matters for any of the general purposes in Part 1. ORR, as the safety regulator for the railways, has a duty to submit to the Secretary of State “such proposals as it considers appropriate for the making of regulations for [the] railway safety purposes”.⁴⁴ It seems to us that the power in section 15 of HSWA 1974 is sufficiently broad to allow regulations to be made imposing obligations on highway/roads authorities in connection with the placing of signs and other warnings at level crossings, where to do so would further the safety purposes of HSWA 1974.

5.51 The Railways and Other Guided Transport Systems (Safety) Regulations 2006⁴⁵ were made under section 15 of HSWA 1974. Those Regulations require railway operators to maintain a safety management system.⁴⁶ The duty to maintain the safe operation of level crossings would fall within the safety management system. The Railway Safety (Miscellaneous Provisions) Regulations 1997,⁴⁷ which make provision for the safe operation of railways and other guided transport systems, were also made under section 15 of HSWA 1974. Taken together these Regulations and the safety management system provide a basic safety framework for railway operators.

Codes of practice under HSWA 1974

5.52 Section 16 of HSWA 1974 gives HSE the power to approve and issue codes of practice providing practical guidance with regard to compliance with the requirements of the Act.

5.53 Although breach of a code of practice issued under section 16 of HSWA 1974 is not itself a criminal offence, the codes can play an important role and may be admissible as evidence in criminal proceedings relating to a breach of health and safety duties. Thus a breach of a code can, in effect, provide evidence of a breach of a duty under the Act, which itself amounts to a criminal offence. Further, the burden of proof is reversed so that a breach of a code will be taken as sufficient evidence of a breach of the provision as charged, unless the employer can prove it was complied with in another way. In other words it is for the employer to prove the matter.

5.54 When ORR became the safety regulator for the railways, the Railways Act 2005 specifically excluded HSE from issuing approved codes of practice under section

⁴⁴ Railways Act 2005, sch 3, para 2(5).

⁴⁵ The Railways and Other Guided Transport Systems (Safety) Regulations 2006 (SI 2006 No 599) implemented the European Railway Safety Directive (2004/49/EC). The aim of the Directive was to provide a common framework for railway safety across Europe. Under the Regulations, railway operators and infrastructure managers must maintain safety management systems and hold a safety certificate/authorisation issued by ORR before they are allowed to operate on the railways.

⁴⁶ The Railways and Other Guided Transport Systems (Safety) Regulations 2006, SI 2006 No 599, reg 3.

⁴⁷ The Railway Safety (Miscellaneous Provisions) Regulations 1997, SI 1997 No 553.

16 of HSWA 1974 in relation to “railway safety purposes”.⁴⁸ However, the equivalent power was not given to ORR. This means that at present approved codes of practice under HSWA 1974 cannot be issued in respect of railway safety matters. We are not aware of the reasons why the power was not transferred to ORR at the time of the Railways Act 2005.

THE RELATIONSHIP BETWEEN LEVEL CROSSING-SPECIFIC RULES AND HSWA 1974

Relationship between level crossing orders and HSWA 1974

5.55 Public level crossings are subject to three main sources of regulatory control:

(1)

the original special Act, typically from the nineteenth century, which often lays down very specific rules about gates, gatekeepers and so on;

(2)

orders made under the Level Crossings Act 1983. Not all public crossings have orders, so for those crossings the 1983 Act has only potential rather than actual relevance; and

(3)

HSWA 1974 and regulations made thereunder.

There may be no conflict between these three. But if there is a conflict, which prevails?

Relationship between level crossing orders and special Acts

5.56 Section 1(3) of the 1983 Act provides:

While an order is in force under this section in relation to a level crossing … (b) any provision made by or under any enactment as to the crossing ... shall not apply in relation to the crossing.

That means that a level crossing order trumps the provisions of the special Act. The relationship between level crossing orders and earlier special Acts is therefore clear. What is less clear is the relationship between special Acts and level crossing orders on the one hand and HSWA 1974 on the other.

Relationship between level crossing orders and HSWA 1974

5.57 As enacted, the 1983 Act did not mention HSWA 1974. But in 1997 the 1983 Act was amended⁴⁹ by the addition of section 1(4A) which provided that: “Nothing in subsection (3)(b) above affects any provision made by or under Part I of the Health and Safety at Work etc Act 1974.” That means that a level crossing order (at least such an order made after 1997) does not trump HSWA 1974. But subsection (4A) does not go so far as to say that HSWA 1974 trumps a level crossing order. Perhaps that is implied. Alternatively, it might be possible to argue that as the general duties under HSWA 1974 contain a “so far as reasonably practicable” for the purposes of those provisions qualification, the terms of any level crossing order must be taken into account in determining what is

⁴⁸ Health and Safety at Work etc Act 1974, s 16(1A), inserted by Railways Act 2005, sch 3, para 9.

⁴⁹ By the Level Crossings Regulations 1997, SI 1997 No 487.

“reasonably practicable”. Such an argument, if successful, would lead to the conclusion that there could be no conflict and therefore the order would remain effective.

Relationship between special Acts and HSWA 1974

5.58 There is nothing in HSWA 1974 that specifically deals with the relationship between special Acts and HSWA 1974. The general rule of statutory interpretation is that later legislation prevails over earlier legislation.

5.59 But there is an opposing principle, that the general does not derogate from the specific:

Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. Accordingly the earlier specific provision is not treated as impliedly repealed.⁵⁰

5.60 On the basis of that principle it might be argued that the general provisions of HSWA 1974 do not prevail over the specific provisions of the special Acts.

5.61 Our impression is that in the railway industry the assumption is that the provisions of a level crossing order take precedence over special Act provisions, failing which HSWA 1974 applies. We mention this as background information not because it is in itself a legal argument.

5.62 Our conclusion is that the current position is far from clear. In Part 8 we invite comments on whether safety should be regulated by HSWA 1974 alone or whether the current system of regulation should be retained, subject to improvements being made to that system. Depending on the outcome of consultation, we suggest that if the current system of regulation is to be retained, the relationships between special Acts, level crossing orders and HSWA 1974 duties should be clarified for the future.

⁵⁰ F A R Bennion, Bennion on Statutory Interpretation (5th ed 2008) p 306.

INTRODUCTION

6.1 We now turn to consider the legal framework which allows a level crossing to be closed. By closure we mean the extinguishment¹ of the right to use the way which crosses the railway on the level. A level crossing can be closed with or without a replacement crossing. The Transport and Works Act 1992 (in England and Wales) and the Transport and Works (Scotland) Act 2007 contain provisions providing for closure with or without replacement.

6.2 In relation to closure with replacement, railway-specific provisions have frequently combined provision for closure of a level crossing with provision for a replacement bridge or underpass across the railway.² However, this still requires the removal of the right to use the way which crosses the railway on the level and the creation of a new right of way across the bridge or underpass.

6.3 Current legislation relating to highways in England and Wales distinguishes between closure, and closure with diversion of the way which crosses the railway.³ In both cases, the public right of way over the level crossing will be extinguished, but in the second, the way is diverted to another place on the railway line. There are no equivalent statutory provisions applying to Scotland.

6.4 Closure is also necessary when reducing the status of a level crossing from public to private. In such a case the public right of way has to be extinguished.

6.5 A further key distinction in relation to closure of level crossings is that between public and private level crossings. Where a public right of way exists over a crossing a formal legal procedure involving public consultation is usually necessary. There are specific legislative provisions relating to the closure of public level crossings. By contrast, a private right over a way may be extinguished by a simple agreement with the holder(s) of the right. We discuss the closure of private crossings in detail in Parts 11 and 12, in connection with discussion of rights of way.

TRANSPORT AND WORKS ACT 1992 AND THE TRANSPORT AND WORKS (SCOTLAND) ACT 2007

6.6 Transport and works orders⁴ may, among other things, provide for the “…extinguishment of rights over land, whether compulsorily or by agreement”.⁵

Accordingly, such orders can be used to extinguish a right of way over a crossing, or divert the right, creating a new right along a different route. This power applies both to public rights of way and private rights of way. There is also a power of compulsory acquisition of land, and a power of compulsory imposition of encumbrances on land. The procedure under the Transport and Works Acts can be used in respect of public and private crossings.

6.7 The advantage of a transport and works order is that closure either with or without diversion or replacement can be effected in a variety of situations. There is no restriction on the use of the order-making procedure.⁶ However, the making of an order is subject to the requirements in section 5(6) of the 1992 Act (as regards England and Wales) and in similar terms in section 7 of the 2007 Act (as regards Scotland). Section 5(6) provides that:

An order under section 1 or 3 above shall not extinguish any public right of way over land unless the Secretary of State or Welsh Ministers⁷ is/are satisfied –

(a)

that an alternative right of way has been or will be provided, or

(b)

that the provision of an alternative right of way is not required.

6.8 The closure of a level crossing may be included in a transport and works order as part of a scheme for major works. Transport and works orders can also be used solely for the purpose of closing individual level crossings. However, we are only aware of a TAW/S order having been used to close a single level crossing in a small number of cases, in which there was no opposition to the closure.⁸

6.9 Nevertheless, the observations we have made above on the limitations of transport and works orders, to the effect that they are, in practice, too expensive and time-consuming to suit these purposes, are also relevant in this context.⁹

THE HIGHWAYS ACT 1980 (ENGLAND AND WALES)

6.10 Sections 118A and 119A of the Highways Act 1980¹⁰ provide powers for councils to make orders for the stopping up and diversion of footpaths and bridleways which cross a railway.

⁶ By way of contrast, ss 118A and 119A of the Highways Act 1980 (which apply in relation to England and Wales alone) only allow the way over a crossing to be extinguished or diverted in the interests of safety of members of the public.

⁷ As mentioned in Part 2, functions under the Transport and Works Act 1992 in relation to Wales, are devolved to Welsh Ministers. Hereafter in this Part where we refer to the Secretary of State in respect of functions under the 1992 Act, the reference should be read as meaning Welsh Ministers in respect of the exercise of those functions in Wales.

⁸ Examples of TAW/S orders which contain provisions relating to closure (and replacement) are: the Network Rail (West Coast Main Line) Order 2003, SI 2003 No 1075, arts 7-9 and the Felixstowe Branch Line and Ipswich Yard Improvement Order 2008, SI 2008 No 2512, arts 16-18. We are aware that transport and works orders have also been used in individual cases to provide for the reduction in status of public level crossings to private level crossings.

¹⁰ Sections 118A and 119A were inserted by section 47 of the Transport and Works Act 1992.

Section 118A of the Highways Act 1980 (rail crossing extinguishment orders)

6.11 Section 118A of the 1980 Act provides for the stopping up of footpaths and bridleways crossing railways. As mentioned above, it gives councils the power to stop up a footpath or bridleway in the interests of safety of the public using or likely to use the level crossing. Section 118A allows for the extinguishment of the right of way across the railway at the level crossing, and as much more of it as is expedient, until it intersects with a similar right of way.¹¹

6.12 The order is made by the council and confirmed by the Secretary of State or in relation to Wales, the Welsh Ministers,¹² unless unopposed, in which case there is no need for the Secretary of State to confirm it.

6.13 Under section 118A(4), the council should not make an order (nor the Secretary of State confirm one) unless they are satisfied that it is “expedient to do so having regard to all the circumstances”. In particular they should have regard to:

(1)

whether it is reasonably practicable to make the crossing safe for use by the public, and

(2)

what arrangements have been made for ensuring that, if the order is confirmed, any appropriate barriers and signs are erected and maintained.¹³

6.14 The process for making an order can be initiated by a council or may be the result of a request from a member of the public or the railway operator. There is a procedure allowing the Secretary of State to make an order where the council does not initiate one. Where the railway operator makes a request for an order under section 118A, if the council have neither submitted it to the Secretary of State nor taken a decision themselves within six months of the request, then the Secretary of State can take the decision without consulting the council.¹⁴

6.15 Under section 118A(5), when making an order at the request of the operator of the railway, the council may require the operator to enter into an agreement to defray or apportion the costs of additional barriers or signs.

Section 119A of the Highways Act 1980 (rail crossing diversion orders)

6.16 Section 119A of the 1980 Act is similar to section 118A, except that it also makes provision for the diversion of the footpath or bridleway. It allows the council to make an order (subject to confirmation by the Secretary of State when it is opposed) to extinguish the right of way and create a new path for the right of way

¹¹ Under section 116 of the Highways Act 1980 the magistrates’ court has power to order the stopping up of a vehicular highway as well as a footpath and bridleway and this may be requested by a developer or other person.

¹² As mentioned in Part 2, in relation to Wales, functions under sections 118A and 119A of the Highways Act 1980 are devolved to Welsh Ministers. Hereafter in this Part where we refer to the Secretary of State in respect of functions under those provisions, the reference should be read as meaning Welsh Ministers in respect of the exercise of those functions in Wales.

¹³ Highways Act 1980, s 118A(4)(a).

¹⁴ Highways Act 1980, s 120.

to effect its diversion.¹⁵

6.17 So far as the right of way across the level crossing itself is concerned, the procedure and grounds for closure are the same for sections 118A and 119A of the 1980 Act. However, there are slight differences where an order is made on the Secretary of State’s own initiative without having received an order for confirmation from a council. In such cases, the Secretary of State has power to order that the railway operator defray or contribute to the costs consequent on the order.¹⁶

Provisions relating to the stopping up of highways under general highways legislation

6.18 Sections 118 and 119 of the Highways Act 1980 give a general power to councils to order the stopping up, or stopping up with diversion, of a footpath or bridleway on the ground that it is not needed for public use. These powers apply to any highway, footpath or bridleway, not just those over a railway. In addition, under section 116 of the 1980 Act a highway authority can apply to a magistrates’ court to have a highway stopped up or diverted if it is unnecessary or can be diverted so as to make it nearer or more convenient for the public. Under section 117, another person, such as a developer, may request that the highway authority makes such an application.

Section 48 of the Transport and Works Act 1992

6.19 In relation to England and Wales only, section 48 of the Transport and Works Act 1992 applies where a closure or diversion application under section 6 of the 1992 Act or a request under section 120(3A)(b) of the Highways Act 1980 has been made.¹⁷ Section 48 enables the Secretary of State to require the operator to provide a new tunnel or bridge (or improve an existing one) at or near the level crossing. However, section 48 is limited by the following factors:¹⁸

(1)

It only applies to footpath and bridleway crossings;

(2)

The railway operator has to have made an application for closure or diversion of the right of way over the crossing; and

(3)

The Secretary of State is of the opinion that the crossing constitutes a danger to members of the public using it or likely to use it.

6.20 Section 48 is not, however, designed to be a general power for dealing with closure of level crossings.

¹⁵ Highways Act 1980, s 119A(2)(b).

¹⁶ Highways Act 1980, s 120.

¹⁷ An application under section 6 of the 1992 Act is for a transport and works order to be made under section 1 of the 1992 Act. A request under section 120(3A)(b) of the 1980 Act is a request for a rail crossing extinguishment order under section 118A of the 1992 Act or a rail crossing diversion order under section 119A of the 1992 Act. As none of these provisions apply to Scotland, section 48 of the 1992 Act does not apply in practice in relation to Scotland.

¹⁸ Transport and Works Act 1992, s 48(1).

6.21 Under section 48(6) of the 1992 Act, the railway operator is not in breach of an order if it fails to meet its requirements but has used its “best endeavours” (including seeking a transport and works order under section 1).¹⁹

Closure and diversion of public crossings in Scotland: The Roads (Scotland) Act 1984

6.22 By contrast with England and Wales, there is no specific provision in Scotland for the stopping up or diversion of ways, whether vehicular or non-vehicular, which cross a railway on the level. Section 68 of the Roads (Scotland) Act 1984 confers a general power on roads authorities to stop up a “road” as defined in the Act.²⁰ The definition covers both vehicular and non-vehicular ways over which a public right of passage exists.

6.23 It seems that the power in section 68 of the 1984 Act could be used to close any public level crossing to which it applies. The power is exercisable by a roads authority either on its own initiative or at the request of any person. An order may be made where the relevant roads authority is of the opinion that the road has either become dangerous to the public or that it has or will become unnecessary. Before making an order the roads authority must satisfy itself that a suitable alternative road exists or that no alternative road is needed.

6.24 An order under section 68 of the 1984 Act may provide for the stopping up of a road, subject to the reservation of a means of passage along the road for pedestrians, cyclists or both. If the road is to be stopped up because it has become dangerous to the public, it may not be safe to reserve a means of passage for pedestrians and cyclists. It will be for the roads authority to decide whether or not any such reservation is appropriate in the circumstances of the case, taking account of its implied duty to promote road safety.²¹

6.25 There is no general provision in the Roads (Scotland) Act 1984 for diversion of a “road” within the meaning of the Act. The default position appears to be that where a new road provides an alternative route to an existing road, section 68 of the 1984 Act could be used to stop up the, now unnecessary, existing road. Certain specific provisions for diversion do exist under the 1984 Act, but apply only in a very narrow range of circumstances not relevant to level crossings.²²

6.26 Section 152(2) of the 1984 Act empowers a roads authority to order the redetermination of the means of exercise of a public right of passage. In effect, it extends the power conferred on roads authorities by section 1 of the 1984 Act; section 1(1)(a) allows roads authorities to determine the means of exercise of a

¹⁹ Transport and Works Act 1992, s 48(7). We are not aware of an instance where section 48 has been used.

²⁰ This is qualified to the extent that the Roads (Scotland) Act 1984 does not confer any power or duty in respect of a public path created by agreement in terms of section 30 of the Countryside (Scotland) Act 1967 (section 151(3) of the 1984 Act). As discussed further below, separate provision exists for both the stopping up and diversion of such paths, in so far as they remain in existence.

²¹ A Faulds, T Craggs and J Saunders, Scottish Roads Law (2nd ed 2008) p 131, para 9.3.3.

²² Roads (Scotland) Act 1984, section 69. See also section 12 allowing stopping up, diversion or improvement of a “side road” which crosses or enters the route of a main road or is affected by the construction or improvement of a main road.

public right of passage over a “public road”. The power under section 1, and therefore the power under section 152(2), applies only in relation to “public” roads. Under the 1984 Act, a “public road” means a road which the roads authority has a duty to maintain.²³

6.27 Section 152(2) of the 1984 Act seems to cater for the situation in which, although section 68 does not apply (for example, the road in question has not become dangerous to the public), a roads authority nevertheless wishes to re-determine the means of exercise of the public right of passage over the road. For example, this section could be used if a roads authority wished to prohibit vehicular passage over a level crossing which was not particularly unsafe or unnecessary, while retaining pedestrian use.

Closure and diversion of public crossings: The Roads (Scotland) Act 1984, Countryside (Scotland) Act 1967 and the Land Reform (Scotland) Act 2003

6.28 In relation to ways in Scotland over which the public right of passage is by foot only, or by foot and on horseback, in general the Roads (Scotland) Act 1984 will apply as described above.

6.29 However, the 1984 Act does not apply in relation to public paths created by agreement under section 30 of the Countryside (Scotland) Act 1967. Section 30(3) of the 1967 Act defines a public path as “a way which is a footpath or bridleway or a combination of those”. A public path may be created by agreement, in general between the local planning authority and the owner of the land crossed by the path. Alternatively, a public path may be created by order, where the relevant planning authority is satisfied that it is expedient to create a new public path but considers that it is not practicable for an agreement under section 30 to be reached.

6.30 Sections 34 and 35 of the 1967 Act make provision respectively for the stopping up and diversion of such paths by planning authorities. The stopping up power under section 34 is exercisable where it appears to the planning authority that the public path should be stopped up on grounds that it is no longer needed for public use. The power to divert a public path under section 35 may be invoked where the relevant planning authority is satisfied by the owner, tenant or occupier of land crossed by a public path that it is expedient that the line of the path, or part of it, should be diverted to secure the efficient use of the land crossed by the path, or other land held in addition to it, or in order to provide a shorter or more convenient path across the land.

6.31 The system of public paths has been replaced, for the most part, by the system of “core paths” provided for in the Land Reform (Scotland) Act 2003.²⁴ A core path is “a path, waterway or any other means of crossing land … which is set out in a [core path] plan adopted under section 18 [of the 2003 Act]”.²⁵ Section 17(1) of

²³ Roads (Scotland) Act 1984, s 151(1).

²⁴ Provision for public paths is made by sections 30 to 38 of the Countryside (Scotland) Act 1967. Whilst these provisions have now been repealed for most purposes, they remain subject to a savings provision provided for in paragraph 7 of Schedule 2 to the Land Reform (Scotland) Act 2003. As a result of the savings provision certain paths continue to be governed by the 1967 Act and are still known as “public paths”.

²⁵ Land Reform (Scotland) Act 2003, s 32.

the 2003 Act requires each local authority to maintain a plan showing all of the routes in its area which have been designated as core paths. In terms of section 17(2) these may include rights of way by foot, horseback or pedal cycle.

6.32 Section 5(6) of the 2003 Act expressly provides that access rights do not constitute a public right of passage for the purposes of the definition of “road” in section 151(3) of the Roads (Scotland) Act 1984.

6.33 Prior to their designation as core paths, certain routes may have been covered by pre-existing public rights of way. On that basis, it appears that a public right of passage for the purposes of the Roads (Scotland) Act 1984 exists over such routes.²⁶ Section 5(3) of the Land Reform (Scotland) Act 2003 makes it clear that such pre-existing rights are not diminished or displaced by the presence of access rights under section 1 of the 1984 Act. As a result, access rights and public rights of passage for the purposes of the Roads (Scotland) Act 1984 may co-exist over certain core paths.

6.34 It seems reasonably clear that access rights under the Land Reform (Scotland) Act 2003 exist automatically over any route that is designated as a core path. It also seems clear that access rights do not ordinarily exist over railways and private level crossings.²⁷ However, in terms of section 7(1) of the 2003 Act, where land has been designated as a core path the section 6 exclusions do not apply. As a result, although access rights would not ordinarily exist over a private level crossing, such rights will exist where a way over a private level crossing has been designated as a core path. The Land Reform (Scotland) Act 2003 is discussed further in Part 12.

Town and Country Planning

Town and Country Planning Act 1990 (England and Wales)

6.35 As we note in Part 9, on planning, there are also circumstances in England and Wales where a level crossing could potentially be closed through the operation of section 247 of the Town and Country Planning Act 1990, as the consequence of a planning decision. However, we have no evidence of this having been done. In addition, local planning authorities have power under section 257 of the 1990 Act to stop up or divert footpaths and bridleways where it is necessary in order to carry out works authorised under planning permission.

Town and Country Planning (Scotland) Act 1997

6.36 In relation to Scotland, section 207 of the Town and Country Planning (Scotland) Act 1997 provides an equivalent power for a planning authority to stop up or divert “roads”, as defined in the Roads (Scotland) Act 1984,²⁸ (other than trunk roads and special roads included in a scheme drawn up by the Scottish Ministers) where this is thought necessary for the carrying out of a development.

²⁶ Applying the approach of Hamilton v Dumfries and Galloway Council 2009 SC 277, it would seem that in so far as a public right of way exists over any given route, a public right of passage for the purposes of the Roads (Scotland) Act 1984 will be deemed to exist.

²⁷ This is as a result of the operation of section 6(1)(d) of the Land Reform (Scotland) Act 2003.

²⁸ Roads (Scotland) Act 1984, s 151.

Section 208 of the 1997 Act makes identical provision for the stopping up and diversion of footpaths and bridleways.

Specific provision incorporated into special Acts

6.37 Section 7 of the Railways Clauses Act 1863, which applies equally to England, Wales and Scotland, may have been specifically incorporated into a special Act. This gives the Secretary of State the power to require a railway company to carry a “turnpike or public carriage road” (now, essentially a public vehicular right of way) over or under the railway by means of a bridge or underpass, instead of on the level. The power could be exercised at any time after the passing of the special Act where it appears to the Secretary of State necessary in the interests of public safety.

6.38 The power in section 7 of the 1863 Act is narrow, in a number of respects. It is only exercisable where certain types of public vehicular way cross a railway on the level; it does not provide for the replacement of footpath or bridleway crossings with bridges, nor does it cover private level crossings. The only ground on which replacement may be required is where it is necessary in the interests of public safety. Furthermore, the power is only exercisable where the existing level crossing is to be replaced. Issues relating to the stopping up or diversion of the right of way over the crossing are not covered.

6.39 We are not aware of any modern use of section 7 of the 1863 Act. We think it unlikely that there are any public vehicular crossings so unsafe that a requirement to close them under section 7 would be imposed on the railway operator nowadays. The primary argument for replacement of a public vehicular level crossing nowadays is that it would be more efficient to do so.

6.40 In terms of funding such a bridge or underpass, section 16(1) of the Railway and Canal Traffic Act 1888 contains a provision which allows for funding agreements where either the Secretary of State or Scottish Ministers has exercised a power in any public general Act or a power in a special Act to require a railway undertaker to build a bridge. However, we are not aware of any modern use of section 16 in connection with level crossings.

Road-rail partnership groups

6.41 It is relevant to discussion about closure of level crossings to mention recent initiatives in fostering co-operation among the interested parties, through the establishment of road-rail partnerships.

6.42 Road-rail partnership groups are formed voluntarily by agreement, usually among Network Rail, a local authority (in its capacity as a highway or roads authority) and other bodies. There is also a road-rail partnership between Network Rail and the Highways Agency for England and Wales. Representatives of local highway/roads authorities involved in road-rail partnership groups are likely to include road safety managers, planners, rights of way officers and strategy/policy managers. Network Rail representatives will typically include those with expertise in such areas as operational risk management, asset maintenance and route enhancement. The aim of road-rail partnership groups is to promote collaborative working in connection with matters relating to level crossings, including closure. Indeed, joint identification of opportunities for the closure of crossings has been one of the key achievements of road-rail partnership groups to date. We discuss these groups further in Part 8.

Provisional conclusions on the current legislation relating to closure of public level crossings

6.43 In relation to England and Wales, the provisions of the Highways Act 1980 relating to stopping up only apply to public footpaths and bridleways, rather than public vehicular ways, and are limited to safety reasons. However, as discussed above, the Highways Act 1980 does provide for a magistrates’ court to order the stopping up or diversion of a highway in certain circumstances. Nevertheless, the 1980 Act does not adequately address all the situations where a public right of way over a level crossing may need to be extinguished or diverted.

6.44 Similarly, in Scotland, the general stopping up provisions of the Roads (Scotland) Act 1984 are restricted to grounds of safety and necessity. There is no provision which relates specifically to level crossings. It also seems that there is a gap in provision for the diversion of ways (over which there is a public right of passage) which are neither “core paths” under the Land Reform (Scotland) Act 2003 nor “public paths” under the Countryside (Scotland) Act 1967. It should also be noted that the powers of stopping up and diversion in relation to both “public paths” and “core paths” are not exercisable on safety grounds. Rather they are exercisable only on the basis of consideration of convenience of the public and the effect of stopping up or diversion upon the land over which the path runs.

CLOSURE OF PRIVATE LEVEL CROSSINGS

6.45 A private level crossing can be closed by agreement between the railway operator and the owner of the right of way over the railway. There are no means by which a private level crossing can be compulsorily closed against the wishes of the owner of the right of way, apart from the order-making powers under the Transport and Works Act 1992 and the Transport and Works (Scotland) Act 2007 or by compulsory purchase.²⁹ It is unlikely that a system designed for much larger scale works, would be used solely for the closure of a single private level crossing. We are not aware of any such use.

6.46 We deal in detail with the nature of these rights of way, and the means by which they may be extinguished, in Parts 11 and 12, where we also discuss the power of the Lands Tribunal for Scotland to discharge servitudes. We merely note here that there are substantive differences in the law between England and Wales, and Scotland.

²⁹ This is discussed in more detail in Part 8.

INTRODUCTION

7.1 In this Part we move from an account of the current law to consider the case for reform. We start by setting out what we consider the key aims of the regulatory regime for level crossings should be, and then consider regulatory approaches generally and whether the current regime satisfies the basic requirements. Finally, we outline briefly recent work on cost-benefit analysis of retaining level crossings as against closing them.

AIMS OF LEVEL CROSSING REGULATION

7.2 There are some requirements that are common to all regulatory regimes. They should be clear, consistent and transparent. However, there are also requirements specific to level crossings which are determined by the physical engineering involved and the responsibilities and aims of both regulators and regulated.

7.3 We provisionally propose that the regulatory regime for level crossings should aim to:

(1)

ensure safety at level crossings;

(2)

promote the efficient operation of railways and, where present, highways/roads, taking account of the need to strike a balance between the interests of rail, road and other users;

(3)

allocate duties and responsibilities appropriately amongst the various actors; and

(4)

provide appropriate means to define rights of way at level crossings in so far as feasible, and to extinguish them where necessary.

7.4 So far as is possible, any changes should fit into and take into account the existing legal structures at a level crossing, for instance the provisions of highways/roads and planning legislation.

7.5 We welcome views on whether these objectives provide an appropriate guide for reform. Would any other objectives be appropriate?

7.6 To achieve its primary aims, the regulatory regime should include appropriate and proportionate procedures for the permanent closure of level crossings by the extinguishment of rights of way over crossings with or without diversion or replacement with a bridge or underpass. Such procedures should allow the economics in relation to each level crossing to be taken into account in making decisions about closure and replacement. However, economic arguments should not be the only matter taken into consideration.

7.7 Where regulatory action involves interference with rights or land administered by another public body, for instance a highway/roads authority, there should be a

suitable dispute-resolution mechanism.

7.8 The regulatory regime should be capable of apportioning costs where appropriate between the railway, public bodies and, where relevant, private actors such as developers.

7.9 Where settlement under the dispute-resolution mechanism is not possible, there should be some other form of mechanism that encourages settlement. If settlement is not possible and it is still thought necessary to interfere with private rights and interests, there should be a clear mechanism for doing this, including an appeal structure and, where necessary, provision for compensation.

REGULATORY APPROACHES

7.10 In recent years, a considerable literature on regulatory theory has developed. Central government has adopted its own approach to regulatory theory, which has informed developments in administrative practice and legislation. We do not think it appropriate to rehearse at length the different approaches to regulation in this paper. We have, however, prepared a short paper setting them out and considering their application in the context of level crossings.¹ In the rest of this section, we consider some of the broad lessons we have drawn.

Regulatory structure and regulatory content

7.11 We suggest that a helpful way to look at regulation is to break it down into consideration of the interdependent concepts of “structure” and “content”. Some approaches focus on the powers of the actors involved and the relationship between them. Other approaches focus on the content of regulation.

General versus specific rules

7.12 Some rules use a broad approach and generally applicable provisions, such as the general principles set out in HSWA 1974. At the other end of the spectrum are very specific rules. For example, level crossing orders made under the Level Crossings Act 1983 contain specific provision about the safety measures to be put in place at individual crossings.

7.13 At present, the general rules under HSWA 1974 do play a role in relation to level crossings. It is, however, probably more accurate to see the practice under the current law relating to the regulation of level crossings as exemplifying the specific approach, with separate provision potentially made for each level crossing.

Regulatory structure

7.14 In relation to level crossings, there is a number of important public sector actors. For current purposes, they include the Secretary of State and Scottish Ministers, the Welsh Assembly Government and local authorities. As mentioned earlier in the consultation paper, the Office of Rail Regulation is the economic and safety regulator for the railways.

7.15 It would be fair to say that the course of post-privatisation history has been more difficult for the railways than other privatised industries, and the regulatory structure has undergone significant changes, most recently in the aftermath of the collapse of Railtrack plc. It follows from what we have said above that our provisional view is that there should not be wholesale institutional change to the identities, roles and responsibilities of these key actors. In particular, we would not propose a new “level crossings regulator”.

7.16 We do propose changes to the powers and duties of the existing actors and, as a consequence, the relationships between them. We see these changes as building on their existing roles and responsibilities.

7.17 The recent history of rail regulation also suggests that we should not automatically assume regulatory stability. Whilst it seems likely that there will always need to be a safety regulator for the railways, we cannot assume that ORR as presently constituted will always fulfil that function. If legislation results from this project, it is likely therefore to have to be adaptable to different institutional arrangements over time. For this reason, we have sought to ensure that our provisional proposals would work in the context of existing institutions, whilst also being capable of adapting to any new arrangements.

Regulatory content

7.18 Modern approaches to regulation would suggest an alternative to prescriptive legal provision for individual level crossings. The alternative approach would involve greater use of general regulations that can easily be amended. Later in the consultation paper we propose adopting such an approach in relation to level crossings.

7.19 The benefits of such a general approach would accrue to both regulator and regulated, in the form of a simpler, more accessible and more proportionate regulatory regime. Reliance on general regulations, which could be amended from time to time to take account of advancements in technology or safety provision, would remove the need to update individual provision in relation to safety at level crossings.

ANALYSIS: THE CASE FOR REFORM

7.20 As we have seen, the law governing level crossings is far from clear, consistent and accessible. The current provisions governing level crossings are scattered in public general Acts, private Acts, secondary legislation and administrative orders.

7.21 Reliance on individual level crossing orders prescribing specific safety measures, which must be complied with exactly, can potentially limit the timely reaction to developments in safety technology. For example, a report of the Rail Accident Investigation Branch might show that a simple change to the lighting at public level crossings or an alteration to the warning sounds would make level crossings safer. A regulatory regime based on individual orders, as at present, could only react to such a general recommendation by altering each of the existing level crossing orders, and possibly making orders where none previously existed. This seems an unnecessary burden to place on both the regulator and the regulated.

7.22 We suggest that the current regulatory regime should be reformed in order, among other things, to address the problem associated with making generic changes to the safety provision at level crossings.

7.23 At present, the absence of general regulations under HSWA 1974, applying to all or at least most level crossings, means that where there is no level crossing order in respect of a level crossing, only the general duties in Part 1 of HSWA 1974 or the special Act apply to govern safety provision at that crossing.

7.24 It should be remembered that the general duties in HSWA 1974 were intended to be amplified over time by regulations and approved codes of practice that would set out the safety requirements for individual industries. The only regulations made under section 15 of HSWA 1974 specifically in relation to level crossings are the Level Crossings Regulations 1997.² However, these regulations were merely a vehicle for amending the Level Crossings Act 1983, not an attempt to use regulations to provide a framework for regulating safety at level crossings.

7.25 Although we suggest that general regulations under HSWA 1974 would be desirable, these would need to be supported by approved codes of practice under the Act. Following the Railways Act 2005, there is no power for any institution to make codes of practice under section 16 of HSWA 1974 for “railway safety purposes”. Given the current nature of level crossing regulation, this may not constitute a problem. Individual level crossing orders specify the exact safety measures that should be put in place at a level crossing. Codes of practice are designed to amplify and provide detailed guidance on general regulations. If there were a move to greater reliance on general safety regulations under HSWA 1974, we suggest that it would be important for there to be approved codes of practice alongside the regulations.

7.26 We do not think that the current distinction between public and private level crossings is appropriate for all purposes. The distinction means that, in relation to safety, there are different sets of tools open to the regulator, depending not on the risk factors present at a particular level crossing but on the legal nature of the way that crosses the railway. For safety purposes, it is not helpful to distinguish between public and private level crossings. As mentioned above, orders under the Level Crossings Act 1983 can be made in respect of public level crossings but only those private level crossings in England and Wales to which the public has lawful access and no private level crossings in Scotland. We would seek to ensure that as regards safety, future regulation should be more flexible in its approach.

7.27 As we discussed in Part 5, the current system of regulating safety is complicated by the fact that safety is governed by the general duties in Part 1 of HSWA 1974, in addition to the specific provisions in special Acts or level crossing orders. We suggest that a simpler and clearer approach to safety regulation is required.

7.28 As we explored in Part 6, the current highways legislation in England and Wales only allows for the extinguishment of rights of way across the railway to be ordered in restricted circumstances, mainly for safety reasons. As a result the possibility of a level crossing being closed, with or without replacement, is limited.

7.29 While the order-making process under section 1 of the Transport and Works Act 1992 or section 1 of the Transport and Works (Scotland) Act 2007 can be used, as we also set out in Part 5, the procedure is potentially expensive and time-consuming and not appropriate for the closure of individual level crossings. The procedure appears to be more suitable where closure of level crossings is part of a larger engineering project.

7.30 We provisionally think that the current regulatory regime should be reformed as it does not sufficiently recognise the potentially competing interests affecting level crossings and does not adequately cater for all level crossings.

ECONOMIC MODELLING OF LEVEL CROSSINGS

7.31 It is possible to use an economic model to assess the costs and benefits of replacing a level crossing with a bridge or underpass, against alternatives such as doing nothing or upgrading safety provision.

7.32 The costs which must be taken into account include: those associated with maintaining the level crossing, the cost of delay to road and rail users, the cost of accidents at the crossing, and the cost of construction and subsequent maintenance of any alternative.

7.33 The delay caused to drivers at a public vehicular level crossing can be expressed in economic terms relatively easily. The two main approaches are to calculate either the lost productivity of those individuals delayed or the amount that they would be willing to pay not to be delayed. At a theoretical level, these approaches should give identical figures. However, this will not always be the case in practice. The Transport Research Laboratory undertook a major research project in 2008 into the impact of traffic delays at level crossings with a view to finding ways to reduce the delays.³

7.34 While it is vital that level crossings be closed to road traffic in order to allow trains to pass, this has to be balanced against the need to avoid undue delay to traffic on the road network and the possible dangers associated with tailbacks at level crossings. Some public level crossings are closed for up to 45 minutes in the hour and this can cause tailbacks on the roads approaching the crossings, with resultant traffic delays. This raises the question as to whether the balance between use of the railway and use of the roads crossing railways is fair and appropriate.

7.35 Delay to trains is difficult to attribute to a single level crossing. Generally speaking, trains will only be delayed if there is a sufficient number of level crossings on a particular stretch of track to justify a reduction in the line speed. Removing a single crossing will in most cases not affect the line speed decision. On the other hand, delay consequent on accidents at or damage to a level crossing is more readily quantifiable, although this would have to be balanced against any delay occasioned by damage to bridges.

7.36 Moreover, it is possible to express the potential cost of accidents at level

crossings in economic terms. This would entail combining the risk of an injury occurring with the economic loss that such an injury would occasion to the injured person and the consequent loss to the wider economy. On this basis, the economic impact of an accident would vary from person to person. In order to extrapolate a wider picture, a standardised cost must be assumed that applies to every death or other injury at a level crossing.

7.37 Finally, there is the risk of catastrophic loss. This is something that both injures a large number of people and results in a significant change in the way in which railways operate. It may have major economic implications. An example is the Hatfield rail accident of 17 October 2000.⁴

The AXIAT model

7.38 The Rail Safety and Standards Board has developed such a model: the Alternatives to Level Crossings Assessment Tool or “AXIAT”.⁵ The model only applies to public vehicular level crossings.⁶ It considers the costs of maintaining an existing level crossing against the most favoured alternative and includes quantification of safety and delay costs.⁷ The model is in the process of being rolled out across the country. An initial study of the level crossings in four counties in England indicated that there was an initial economic case for replacing 49 out of a total of 288 level crossings (or 17% of the total). Given the low number of public crossings which are currently replaced,⁸ such modelling may indicate that replacement should be more fully considered in relation to a greater number of level crossings.

7.39 AXIAT is only one way of modelling the costs and benefits of level crossings. It is designed essentially as a screening tool to identify those level crossings where there is most likely to be a case for replacement. Once a candidate level crossing has been identified, a more detailed site-specific cost/benefit analysis would have to be prepared as a basis for a case for allocation of the necessary funds.

Conclusions on economic modelling

7.40 Any model will necessarily be limited by the inputs chosen and the weight given to each input, and it does not provide an answer as to whether the change suggested is desirable, once all factors are taken into account. Even where there are good economic arguments that a particular level crossing should be replaced, other compelling public policy considerations (such as protection of rights of way,

local amenity, and local and national transport policy) may outweigh these arguments.

7.41 Models which, like AXIAT, focus on the costs and benefits to society as a whole risk obscuring the fact that decisions about level crossings are taken by individual actors such as railway operators or highway/roads authorities. Not all of the costs included in the AXIAT model will be borne by every actor. Indeed, some actors currently bear none of the costs associated with maintaining a level crossing, but might have to bear the costs of maintaining a bridge. For such actors, even where level crossing replacement provides general economic benefits, their own cost/benefit analyses may act as a disincentive to agreeing to such a scheme.

7.42 Further, economic models such as AXIAT are designed to show the potential wider benefits of change at a level crossing. AXIAT cannot show that this is an appropriate allocation of public resources, particularly when compared to other options available to highway and roads authorities. Good highways schemes, designed to improve safety and reduce delays, frequently exhibit much higher positive cost/benefit ratios than those typical of even a good case for the replacement of a level crossing using the AXIAT model.

7.43 Nevertheless, the disparity between the (initial) findings of the AXIAT model, and the number of public vehicular level crossings actually closed, suggests that there are features of the legal regime which prevent the economically beneficial closure and replacement of level crossings. As we explored in Part 6, this is likely to be, in part, a result of the limited range of situations where the closure of a level crossing (that is, the extinguishment of the right of way over the crossing) can be ordered.

7.44 Another factor militating against the closure and replacement of level crossings is the lack of time-limits within the decision-making process, which can make funding problematic. Following the White Paper The Future of Rail⁹ and the Railways Act 2005, the Secretary of State and Scottish Ministers are responsible, in consultation with ORR, for the strategic development and funding of railways. This is done on the basis of five-year “control periods”.¹⁰ In determining the objectives for a future control period, specific bids can be made for funds to close level crossings. A problem arises in that the timing in relation to the setting of objectives to be included in the High Level Output Specification (HLOS)¹¹ does not sit well with the inability of the law to provide reasonable certainty and timetables for decision-making about closure. Therefore, a particular bid might not be accepted as it might be impossible to guarantee that the funds will be spent and the aims achieved by the end of a particular control period.

7.45 Arguably, therefore, a reformed regime should allow the true costs and benefits of closure and replacement to be taken into account within the decision-making process. It is not an appropriate task for a law reform project to secure the

¹⁰ The current control period is Control Period 4 (CP4) which runs from 2009-2014.

¹¹ Schedule 4A to the Railways Act 1993 requires the Secretary of State in relation to England and Wales, and the Scottish Ministers in relation to Scotland, to produce an HLOS (and also a Statement of Funds Available (SoFA)) in order to determine the objectives for the railways and the funding required to meet those objectives.

closure (and replacement) of level crossings. Nor should law reform seek to change the current systems used for the allocation of capital resources to Network Rail or highway or roads authorities. But reform should result in legal provision which facilitates rational decisions on the basis of cost/benefit analysis.

INTRODUCTION

8.1 In this Part we provisionally propose the reform of four aspects of level crossing regulation. First, we propose a fundamental change to the system of safety regulation at level crossings. Second, we suggest a new mechanism allowing for the closure of level crossings, with or without replacement. Third, we consider whether there is a need for other mechanisms to manage change at level crossings. Fourth, we ask whether there should be a simplified mechanism to allow for new level crossings. Having put forward these substantive proposals, we consider what should become of existing special Acts and level crossing orders. Finally, we consider the position of heritage and private railways.

8.2 The proposals aim to address the criticism that the law relating to level crossings is over-complicated and outdated and that there are insufficient or overly burdensome processes for either allowing or requiring change, which includes closure.

SAFETY REGULATION

Safety regulation: general provisions of HSWA 1974, regulations and codes of practice

8.3 As discussed in Part 5, the current safety regime at level crossings is based on individual provisions in special Acts authorising the railway, or on level crossing orders. However, in most cases the general duties under HSWA 1974 apply alongside special Acts and level crossing orders.

8.4 The current system which relies in the main on specific provisions in special Acts and level crossing orders is the sort of regime that it was envisaged would be replaced by the general scheme contained in Part 1 of HSWA 1974. We think that for the future it would be preferable for safety at level crossings to be governed entirely by HSWA 1974 together with regulations and codes of practice made under the Act. We think this approach would afford greater flexibility and allow for generic changes to be made to the protective arrangements at level crossings, thus removing the need to amend or make new level crossing orders. A move to reliance on HSWA 1974 and regulations would represent a significant change from the current more individualistic approach to safety regulation.

8.5 An alternative approach would be to retain the current system subject to making improvements to make the system more flexible. It can be argued that the reason for the relatively good safety record of level crossings in Great Britain is that the current system of regulating safety by means of special Acts and level crossing orders generally works well, and that therefore there is no need for fundamental change to the way in which safety is regulated.

8.6 In our view the relatively good safety record is likely to be the product of the effective implementation of safety standards, particularly by HM Railway Inspectors (now part of the Office of Rail Regulation’s Railway Safety Directorate). The issue is not about the need to enforce standards on a crossingby-crossing basis (if necessary). Rather, the issue is about what is the best way legally to generate those standards. The inspectors will generally have a clear view about the engineering solution necessary at any given level crossing. Our provisional view is that it is likely to be better that that standard should become the legal standard by the application of the flexible apparatus of HSWA 1974, rather than through the inflexible means of making level crossing orders (where that is possible). In relation to those private level crossings for which a level crossing order cannot be made the point is even clearer. If the optimal engineering arrangements do not accord with the requirements of a special Act, there is currently no practical way (HSWA 1974 general duties aside) to require the railway operator or the highway/roads/traffic authority to put those arrangements in place.

8.7 One of the advantages of the current system of safety regulation is that in general there is a document in the form of either a special Act or level crossing order which sets out the safety requirements tailored to individual level crossings. This enables the railway operator and the highway/roads/traffic authorities to know exactly what is required in terms of safety provision. Certainty about the individual requirements for level crossings may have advantages, particularly in relation to enforcement. A possible problem with level crossing orders and special Acts is that they are not readily available to the public or to others who might be interested to know what safety provision is required at a particular level crossing. However, that problem could be overcome, for example, by providing that level crossing orders should be statutory instruments. We discuss this matter later in this Part.

8.8 As we have seen, at present level crossing orders cannot be made for all level crossings. In particular they cannot be made in respect of private level crossings in Scotland and can only be made in respect of private level crossings in England and Wales to which the public has lawful access. However, as mentioned earlier, in most cases safety at such crossings is governed by the general duties under HSWA 1974. But there is currently a gap in the safety regulation of private level crossings where the adjoining landowner is not employed or self-employed in respect of the land. In that case the provisions of HSWA 1974 do not apply, because HSWA 1974 only imposes duties on employers or self-employed persons in relation to their undertaking.

8.9 We accept that there is some force in the arguments for retaining the current system of safety regulation, but provisionally do not see them as compelling. The vast majority of sites creating risks to health and safety manage without a document having the force of law. A HSWA 1974-based system may well allow for the generation of documents specific to particular sites or processes. Under the proposed HSWA 1974-based system, if it were felt appropriate to allow for formal documents to make specific provision about safety matters, the regulations could enable such documents to be made where it was considered necessary for particular level crossings. Another form of specific document would be an enforcement notice under HSWA 1974, should a dispute arise as to what the appropriate safety measures were, or as to their implementation.

8.10 We accept that it may be that changing to a HSWA 1974-based system would leave gaps that the current system of safety regulation does not (we consider this further below). But if that were the case, then the solution might be to adapt the HSWA 1974 system in so far as it would apply to level crossings, rather than retain the current approach to regulating safety at crossings. We make the following provisional proposals regarding the regulation of safety at level crossings:

8.11 We provisionally propose that the regulation of safety at level crossings should be governed entirely by the general scheme of HSWA 1974.

8.12 However, if consultees consider that it would be preferable to retain the current system of regulating safety at level crossings, what changes should be made to improve the system?

8.13 If consultees agree with our provisional proposal above, it would involve the following matters, discussed later in this Part:

(1)

statutory provision to revoke level crossing orders and to disapply the provisions in special Acts in so far as they deal with safety at level crossings;

(2)

statutory provision to give the Secretary of State power, where appropriate to repeal or amend provisions of individual special Acts in so far as they deal with safety at level crossings;

(3)

the making of regulations under section 15 in relation to safety at level crossings;¹

(4)

statutory provision to give the Office of Rail Regulation (ORR) the power to make approved codes of practice under HSWA 1974; and

(5)

the making of codes of practice under the new section 16 power by ORR (we appreciate that in practice it would be a matter for ORR as to whether or not to exercise the power to make codes of practice).

¹ As mentioned in Part 7, regulations have been made under s 15 of HSWA 1974 in relation to level crossings, namely the Level Crossings Regulations 1997, SI 1997 No 487. However, these regulations amended the Level Crossings Act 1983, rather than making free-standing provision for safety at level crossings.

Safety regulator

8.14 As mentioned earlier, ORR is the safety (and economic) regulator for the railways. It would clearly be counter-productive and impractical to separate railway safety generally from safety at level crossings. However, there may be an argument for separating safety at level crossings from other aspects of highway/road safety. Unlike the railways, there is no single regulator for road safety. As we have seen, level crossing orders may impose requirements not only on the railway operator, but also on the appropriate traffic authority.² As ORR makes and enforces level crossing orders it is already responsible not only for regulating the railway aspects of level crossings, but also the highway/road aspects of level crossings. For these reasons we think it appropriate that under a HSWA 1974-based system ORR should continue to be the safety (and economic)

regulator for railways including level crossings.

8.15 We therefore invite consultees to comment on our provisional proposal that ORR, as the safety regulator for the railways, should remain as the body with overall responsibility for safety regulation at level crossings.

Regulations under HSWA 1974

8.16 As a result of the Railways Act 2005, ORR already has the power to propose that regulations should be made under section 15 of HSWA 1974. We propose that new regulations should be made under this power and that they should be used in place of individual obligations in level crossing orders and special Acts. Under the new regulations the safety obligations should be placed on the railway operator.

8.17 If our preferred option of moving to a HSWA 1974-based system of regulating safety is accepted, we propose that regulations should be made by the Secretary of State under section 15 of HSWA 1974 in relation to level crossings.

Approved codes of practice under HSWA 1974

8.18 As we have previously observed, the power to make approved codes of practice under section 16 of HSWA 1974 was removed from HSE by the Railways Act 2005 but not conferred on ORR. As we stated in Parts 5 and 7, we think that codes of practice would be useful in a HSWA 1974-based system, in order to provide practical guidance to support the regulations mentioned above.

8.19 If our preferred option of moving to a HSWA 1974-based system of regulating safety is accepted, we propose that ORR should be given the power to issue approved codes of practice under HSWA 1974 in relation to level crossings.

8.20 Clearly it would be inappropriate for us to specify the technical content of any regulations and codes of practice. The regulations and codes of practice would work together. The regulations would make substantive provision to secure the safety of people at level crossings, while the codes of practice would contain practical guidance with respect to the requirements in the regulations. Codes of practice could not make substantive provision. The use of regulations and codes of practice in this way would provide flexibility to take account of the differing circumstances and safety risks at individual crossings. The proper balance between them would be a matter for ORR and the Department for Transport. However, we suggest that together, regulations and codes of practice should be able to make sufficient provision to ensure safety at different types of level crossing.

The position of highway/roads and traffic authorities under a HSWA 1974based system of safety regulation

8.21 The Level Crossings Act 1983 was amended by the Road Safety Act 2006 to allow level crossing orders to impose obligations on local traffic authorities.³ As

mentioned earlier, ORR is responsible for enforcing duties under level crossing orders, including those imposed on local traffic authorities.

8.22 If we move to a system based on HSWA 1974, we must therefore consider the extent to which local traffic authorities⁴ can be bound by that system, as operated by ORR.

8.23 We discussed in Part 5 the extent to which the general duties in HSWA 1974 currently apply to highway and roads authorities. We also said there that we thought that the regulation-making power in section 15 of HSWA 1974 was broad enough to include regulations imposing specific duties on these authorities.

8.24 The remit of ORR in relation to safety is set out in the Railways Act 2005.⁵ The Act describes the role of ORR in terms almost identical to those used of HSE in HSWA 1974, but confines it to “railway safety purposes”. Those purposes include “securing the proper construction and safe operation” of [the railway] and “protecting the public (whether or not they are passengers) from personal injury and other risks arising from the construction and operation of [a railway]”.⁶ It will be recalled that HSE is responsible for enforcement of the “general purposes” in section 1 of HSWA 1974, which include “protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work”.

8.25 ORR’s duties are very broadly defined. The general duty is defined as “to do such things and make such arrangements as it considers appropriate for the railway safety purposes” and “to assist and encourage persons concerned with matters relevant to any of those purposes to further those purposes”. A specific duty is to submit from time to time “such proposals as it considers appropriate for the making of regulations for railway safety purposes” under, among other powers, section 15 of the 1974 Act.⁷

8.26 ORR therefore has the power to submit proposals to the Secretary of State for regulations to be made under section 15 of HSWA 1974 which would be binding on highway/roads or traffic authorities, where the purpose of the regulations is to ensure the safety of the public at level crossings.

8.27 Similarly, if ORR were given powers to issue approved codes of practice under section 16 of HSWA 1974 by reference to the same definition of “railway safety purposes”, those codes of practice could provide guidance to highway/roads or traffic authorities; and failure to follow the guidance would have the consequences in any criminal proceedings set out in section 17 of HSWA 1974.

Enforcement and highway/road and traffic authorities

8.28 As mentioned in Part 5, the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006 make ORR responsible

for the enforcement of the “relevant statutory provisions” namely, Part 1 of HSWA 1974, regulations made under section 15 of HSWA 1974 or any of the “existing statutory provisions”, to the extent that they relate to the operation of a railway.⁸

8.29 Under the proposed HSWA 1974-based system, if the Secretary of State were to make new regulations under section 15 of HSWA 1974 for the “railway safety purpose” of protecting the safety of the public at level crossings, enforcement of those regulations would “relate to” the operation of the railway. Therefore, by virtue of the 2006 Regulations mentioned above, ORR would be responsible for enforcement of the new regulations including against the highway/road or traffic authority.

8.30 It is not so clear, however, whether ORR would be responsible for enforcement of a breach by a highway/roads or traffic authority of its duties under section 3 of HSWA 1974 at a level crossing. First, as we showed in Part 5, the extent to which such an authority would be under a section 3 duty at all depends on the extent of its public law duties. But second, even if there were a breach of section 3 by virtue of, for instance, a failure to maintain the highway/road adequately at a level crossing, could it be said that it was a breach relating to the operation of the railway?

8.31 On balance, we think it could. First, this is what a natural reading of “relating to the operation of the railway” would suggest, without further analysis. Such a breach would “relate”, in the sense of “have to do with” or “be connected with” the operation of the railway at the level crossing. Second, even if one analyses the legal position, it may indeed be true that the underlying statutory duty is fundamentally about the highways or roads duties of the authority and not a function relating to the operation of the railway. However, while that duty establishes what the content of the authority’s “undertaking” is, section 3 itself is an instruction as to how the authority is to conduct itself in its undertaking. The failure to conduct its undertaking at a level crossing with due regard to the safety of the public “relates” to the operation of the railway (in so far as the risks concerned arise because of the operation of the railway).

8.32 However, we consider that the alternative is also arguable. If a breach of section 3 of HSWA 1974 at a level crossing were not enforceable by ORR because it did not relate to the operation of the railway, then HSE would remain the enforcing authority. Safety on the rail and road networks at level crossings is inextricably linked, and in our view is best regulated by a single authority. It would be unsatisfactory if ORR were responsible for enforcing against railway operators, while responsibility for enforcing against highway/roads or traffic authorities rested exclusively with HSE.

8.33 We therefore ask consultees whether it would be desirable expressly to provide that a breach of section 3 of HSWA 1974 at a level crossing should be subject to enforcement by ORR, not HSE.

Private level crossings: other business use and enforcement

8.34 Where a private level crossing is used by a business user (whether as an

employer or self employed person) in connection with the land, for example to get to a field on the other side of the railway line, section 3 of HSWA 1974 will apply. Any unsafe use of the level crossing by such a user would breach section 3 of HSWA 1974 if it compromised the safety of people not in the user’s employment. Such a breach would relate to the operation of a railway and thus be enforceable by ORR. If our proposed HSWA-based system were to be introduced, and if the Secretary of State were to make regulations under HSWA 1974, a breach of those regulations by such a business user would also be subject to enforcement by ORR.

8.35 Activities undertaken by a business otherwise than at a level crossing, (for example, where a farmer uses machinery in fields to harvest grain) would be regulated by the Health and Safety Executive (HSE). If an accident occurs whilst a farmer is harvesting grain in a field bisected by the level crossing, the HSE will investigate the accident. In most cases, the activity concerned would be covered by either “existing statutory provisions” or regulations under section 15, as well as the general duties.

8.36 Where a breach takes place on a level crossing, for example where a farmer takes a tractor over the level crossing to get to adjoining fields, ORR would be responsible for enforcement. Where a breach takes place on adjoining land as outlined in the previous paragraph, HSE would be responsible for enforcement. There may be circumstances where a breach of HSWA 1974 takes place partly on a level crossing and partly on adjoining land. In such a situation does ORR or HSE currently have jurisdiction to enforce HSWA 1974?

8.37 Although the question is a difficult one we take the view that, as the current law stands, in relation to a breach at a level crossing (or anywhere else on the railway) ORR’s enforcement jurisdiction would take precedence over that of HSE.

8.38 Under the proposed HSWA 1974-based system of safety regulation, concurrent jurisdiction of HSE and ORR might appear to be more attractive than ORR having exclusive jurisdiction. It may be, for instance, that a business user is alleged to have breached one of the relevant provisions while on a level crossing as well as on the land on either side of the crossing. It would seem to be preferable if one prosecution could deal with the whole course of conduct, rather than HSE having jurisdiction in relation to either side of the level crossing and ORR having jurisdiction in relation to the crossing itself. It would be much easier to have a single prosecution if HSE had concurrent jurisdiction with ORR in relation to the crossing. While of course concurrent jurisdiction would require some understanding between ORR and HSE about which of them would enforce in particular cases, to avoid both declining to do so, that seems the sort of issue that can adequately be dealt with by sensible working arrangements, for example they may wish to agree a memorandum of understanding or protocol regarding their respective functions.⁹ We ask consultees the following question:

8.39 Would it be desirable for ORR and HSE to have concurrent jurisdiction for

enforcement of breaches of the general duties under HSWA 1974 or “relevant statutory provisions” where the breach occurs partly at a level crossing; or should ORR’s railway-specific jurisdiction oust that of HSE?

Private level crossings: non-business users

8.40 Some private level crossings are not used by the owner of the right of way for any business use, but are used for ordinary day-to-day and social access to their property. In this situation, under our proposed HSWA 1974-based system of regulation, the railway operator would be subject to the duties under HSWA 1974 including any regulations and approved codes of practice, but the owner of the right of way would not be.

8.41 We would expect that most private level crossings would be governed by a special Act and some might be governed by a level crossing order, where in England and Wales the public has lawful access over the right of way. As we have mentioned, level crossing orders cannot be made in relation to private level crossings in Scotland.

8.42 However, there is one situation where it would be necessary to retain the safety provisions in special Acts. At present in England and Wales, a level crossing order may be in force in relation to a level crossing dividing land owned or tenanted by a person who is not employed or self-employed in connection with the land. We propose that if the HSWA 1974-based system of regulation were to be adopted, level crossing orders should be revoked and special Acts should be disapplied in so far as they make provision for safety at level crossings. In relation to the case outlined above, HSWA 1974 would not apply to the landowner (because the landowner would not be undertaking any business in connection with the land). Thus there would be a gap in the regulation of safety at such a level crossing. In order to avoid this gap, it would be necessary to continue to apply the provisions of the special Act dealing with safety rather than disapply them. Another option would be for primary legislation to provide that HSWA 1974 would apply in such a situation. But we do not think that this option is attractive as it would be contrary to the general approach of HSWA 1974 which is to impose duties as regards safety matters on employers and self-employed persons. Alternatively, the existence of appropriate criminal penalties for misusing such a private level crossing might be sufficient.

8.43 We invite consultees to comment on the problem that HSWA 1974 cannot apply to owners of rights of way over private level crossings who are not business users.

8.44 Do consultees think that a move to a HSWA 1974-based system would create problems in practice?

Safety and convenience

8.45 As we observed in Part 5, the overriding purpose of a level crossing order is to provide for the protection of those using the crossing.¹⁰ However, an order may make provision for the convenience of those using the crossing as well as for their safety.

¹⁰ Level Crossings Act 1983, s 1(1).

8.46 We suggested in Part 5 that in practice there is unlikely to be a very sharp distinction between safety and convenience. At present, convenience is a matter which is taken into account in level crossing orders in setting out the protective arrangements that are to be put in place at individual level crossings. The question as to how convenience could continue to be taken into account would arise if there were a move to reliance on HSWA 1974 for the regulation of safety in relation to level crossings. This would arise because at least on one view, HSWA 1974 is concerned with safety matters only. In this section, therefore, we consider those situations in which it is possible that the loss of the “convenience” limb in the Level Crossings Act 1983 would be a significant matter and ask whether in practice it is.

8.47 There would only be a gap if some legal provision is required to induce one of the two parties at the level crossing – the railway operator and the highway/roads or traffic authority – to do something it would not otherwise do. One would not expect to have to compel the railway operator to make provision to enhance efficiency (with due regard to safety) on the railway, because the railway operator has an interest in doing so. Similarly, the highways/roads or traffic authority should not have to be required to act in the interests of those using the highway or road (again, the balance between efficiency and safety being properly a matter for that authority). There are however, two possible situations in which there might be a “convenience gap”.

Situation 1: action by the railway operator for the convenience of highway/road users

8.48 The first situation is where it might be necessary to bind the railway operator to do something purely for the convenience of highway/road users at a level crossing. This might include requiring the railway operator to make provision to enhance the usability of the crossing for those with particular mobility needs. While currently the Disability Discrimination Act 1995 would oblige the railway operator to make appropriate provision for people with disabilities, there is no requirement to make adjustments to accommodate other users who may have particular mobility needs, such as people with push-chairs, cyclists or horse riders.

Situation 2: action by the highways/roads/traffic authority for the convenience of rail users

8.49 Conversely, there might be circumstances in which it is necessary to bind the highway/roads or traffic authority to do something, unconnected with safety, to enhance the efficiency of the railway (assuming that a more efficient railway would be more “convenient” to rail users of the crossing). While a logical possibility, it is not easy to envisage an example of such a situation.

8.50 If a certain engineering enhancement were conducive to efficiency on the railway, but was neutral as to both safety and the convenience of highway/road users, then it would be reasonable to expect the railway operator to pay for it. If, therefore there were no resource disincentive to making the enhancement, it seems unlikely that it would be necessary for there to be provision to compel the highway/roads authority to make the enhancement. There is only one situation that we can see where it might be necessary to compel the highway/roads authority to undertake the enhancement and where therefore there might be a gap. That is where the highway/roads authority was considering undertaking work which required a balancing exercise to be carried out between the convenience or efficiency of rail users and that of highway/road users. In that situation it would be the highway/roads authority that would make the decision to undertake the work but in reaching that decision the highway/roads authority would not be required to take the interests of the railway into account.

8.51 We ask consultees to consider whether there is a “convenience gap” in our proposal to replace reliance on special Acts and level crossing orders with a HSWA 1974-based system. If so, how should the gap be closed?

8.52 We ask consultees whether in practice it would be necessary to have a legal instrument that would:

(1)

require rail operators to take safety-neutral steps to enhance the convenience of the users of the highway/road at a level crossing; and/or

(2)

require highway/roads or traffic authorities to take safety-neutral steps to enhance the convenience of rail users, by enhancing the efficiency of the level crossing for rail use.

8.53 We suggest there are broadly two options. Either the level crossing-specific HSWA 1974 regulations we have provisionally proposed should be capable of extension to cover such gaps as are identified; or a specific order-making power on the model of level crossing orders should be retained.

8.54 Regulations under section 15 of HSWA 1974 could only cover convenience matters if the statutory power under which the regulations are made enables such provision to be included. The current power in section 15 includes a power to make “incidental” and “supplemental” provisions.¹¹ This may be sufficient to allow incidental or supplemental provision to be made about convenience matters, provided such matters fell within the general purposes of Part 1 of HSWA 1974. Whether the existing power in section 15 would be wide enough to fill any convenience “gap” is difficult to assess until consultees give us a clearer idea of what, in practice, such a gap might consist of. We suggest that completely freestanding convenience works might not be covered by the power in section 15, but where the convenience works are inextricably linked to safety measures, they probably would be.

8.55 If the “incidental” and “supplemental” provision in section 15 of HSWA 1974 were not wide enough, it would be necessary to extend the power for the purposes of level crossings. Regulations made under the extended power in section 15 would of course be enforceable under HSWA 1974. However, it is difficult to see how non-safety-related convenience issues could sit happily with the health and safety regime under HSWA 1974. It could be argued that enforcement processes designed and developed to deal with health and safety would not be apt to deal with convenience.

8.56 The alternative – the creation of a new power to make orders specific to particular

¹¹ Health and Safety at Work etc Act 1974, s 82(3)(a).

level crossings on the basis of convenience – is also unattractive. It would replicate, albeit in a smaller compass, the crossing-specific regime from which we are provisionally proposing to move away, and would increase rather than decrease the complexity of the law. There would also have to be specific provision to the effect that such a new order would give way to safety concerns, if the two came into conflict over time.

8.57 Is there a need for provision to enable convenience-related measures to be put in place at level crossings? If so, would it be preferable to:

(1)

extend the power under section 15 of HSWA 1974 to make regulations, to include considerations of convenience; or

(2)

create a new power to make separate convenience-related orders for particular level crossings?

CLOSURE

8.58 We discussed the current provisions relating to closure of level crossings in Part 6. Our approach to closure is based on the view that there is a gap in statutory powers as regards closure of level crossings. It is possible to close level crossings as part of a transport and works (TAW/S) order.¹² But while TAW/S orders can be used to close an individual crossing, they were principally designed for major transport projects including those of national or regional significance. Flexible though they may be, we still consider TAW/S orders too cumbersome, expensive and time-consuming to be used for the closure of a single level crossing for local efficiency or safety reasons.

8.59 At the other end of the scale is the existing power under section 118A of the Highways Act 1980 to stop up footpaths and bridleways over level crossings. Section 118A only applies in England and Wales. There is no equivalent provision in Scotland. The Roads (Scotland) Act 1984 does not contain specific level crossing provisions, but rather general powers to stop up roads. The power in section 118A of the 1980 Act, while designed to be used in relation to individual level crossings, is very limited. It does not apply to vehicular highways or private level crossings. This power relies on the highway authority to make the decision subject to confirmation by the Secretary of State.

8.60 In Part 7 we mentioned that the AXIAT model demonstrates that there is an economic case for closure with replacement of a small but significant minority of public vehicular level crossings. We suggested that there were features of the legal regime that prevented the closure and replacement of public vehicular level crossings and that reform was necessary.

8.61 As regards private level crossings it is not generally considered practical to use a TAW/S order to close such crossings. However, Network Rail has been successful in buying out reasonably large numbers of individual private level crossings on a voluntary basis using a discharge agreement or a deed of release

¹² An order under the Transport and Works Act 1992 or the Transport and Works Act (Scotland) Act 2007.

to extinguish the right of way.¹³ But it seems likely that in some cases, there will be a good case for the compulsory acquisition of private rights of way over level crossings in order to close them. This may arise where agreement cannot be reached between Network Rail and the owner of the private right of way. There are currently no powers for the compulsory purchase of land in such circumstances. We therefore think that reforms are necessary to enable closure of private level crossings in cases where agreement cannot be reached between the railway operator and the adjoining landowner.

8.62 It has been suggested to us that if a practical and reasonably predictable procedure for level crossing closure was in place, it could potentially lead to very significant savings in the engineering cost of a replacement bridge or underpass. The reason for this is that if the replacement of a level crossing could be planned to take place at the same time as some other engineering work taking place on the railway (or even on the highway/road), then the marginal cost of including the level crossing replacement could be much less than the cost of doing it as a stand-alone project.

8.63 We provisionally propose a new procedure for level crossing closure orders to allow for closure of both private and public level crossings. The powers available would include compulsory purchase, and stopping up and diversion in relation to highways/roads. A wide group of actors, including the railway operator, highway/roads authority, and planning authority, in addition to ORR, would be able to apply for an order, which would be made by the Secretary of State or the Scottish Ministers as appropriate. The procedure should include strict time-limits to enhance predictability.

8.64 Proposals for closure of a level crossing may be for closure with or without replacement. Provisionally, we take the view that it is not necessary to have different legal procedures for closure with or closure without replacement. This is because the question as to whether there is to be an alternative will be fundamental to the decision-making about whether or not the order to close should be made. For example, we consider it unlikely that an order for closure of a vehicular highway/road which crosses a railway would often be made without there being provision for a replacement crossing. We note that the AXIAT model, for instance, is unlikely to find an economic case for closure without replacement. So a proposal to close such a level crossing without replacement is unlikely to be acceptable on its merits. However, it may frequently be the case that a private level crossing could be compulsorily closed without replacement where the right of way owner has adequate access to each side of the railway by other means.

Criteria for closure

8.65 As we explored in Part 6, the current criteria for replacing a level crossing under section 7 of the Railways Clauses Act 1863 (safety only), or for the stopping up of a highway under the Highways Act 1980 (England and Wales), or a road under the Roads (Scotland) Act 1984 are very restrictive. Under our new system for closure of level crossings, we think there should be a list of criteria to be taken into account by the decision-maker in deciding whether or not to grant an application for a level crossing closure order. The list would not be a hierarchy, in

¹³ Extinguishment of rights of way is considered in more detail in Parts 11 and 12.

that no one factor would automatically be more important than another. We therefore invite views of consultees on the following provisional proposals:

8.66 Should there be a list of factors to be taken into account in considering an application for a level crossing closure order?

8.67 If so, we would welcome the views of consultees on the following list of factors:

(1)

safety of users of the crossing (including information as to the incidence of accidents at the level crossing);

(2)

costs involved in maintenance of the crossing compared with costs involved in closing or closing and replacing the crossing;

(3)

the effect of closure as opposed to retention (in the case of public level crossings) on the efficiency of the rail and road networks;

(4)

the effect (in the case of public level crossings) on the integrity of the network of non-vehicular public rights of way;

(5)

the effect of closure compared to retention of the crossing on the local community;

(6)

the effect on those holding private rights over the crossing;

(7)

the usability of the level crossing or its potential alternatives for all level crossing users;

(8)

the convenience of level crossing users; and

(9)

the effect on the environment and local amenity.

8.68 Should the factors be set out in order of importance? If so, how should they be ordered?

Decision-making

8.69 The question of who should be the decision-making authority is important because of the need to balance local and national interests with the interests of the railway. This question is the consequence of railways having been seen, at least in modern times, as primarily a national network whilst land, communities and many highways/roads have traditionally been seen as local issues. Level crossings are a visible example of the interface between these potentially conflicting perspectives.

Private level crossings

8.70 The closure of a private level crossing involves the extinguishment of the right of way over the crossing. As we outline in Parts 11 and 12, at present the way over a private level crossing can be extinguished and therefore the level crossing can be closed by agreement (in the form of a deed of release or discharge agreement) between the railway operator and the adjoining landowner. However, agreement between the parties may not always be possible. As we mentioned in Part 6, apart from the order-making powers under the Transport and Works Acts, there are no means by which a private crossing can be compulsorily closed if the owner of the right of way objects. In that event, our proposed closure procedure would become relevant.

8.71 Given the importance of the issue, we suggest that under the new procedure, an application for a level crossing closure order in respect of a private level crossing should be made to the Secretary of State in relation to crossings in England and Wales and to Scottish Ministers in relation to level crossings in Scotland.

8.72 Under the new procedure, the application for a level crossing closure order would seek compulsory purchase powers (with provision for appropriate compensation) in relation to the landowner’s right of way over the crossing. Compulsory purchase of the right of way following a successful application would have the effect of extinguishing the right of way. The body which was to be given the compulsory purchase powers would be specified in the closure order. In the case of a private level crossing, it would almost always be the railway operator.

8.73 Where compulsory purchase powers are applicable, they may be used to purchase land, but they can also be used to purchase an “interest in land”, which would include the right of way over the railway. The law of compulsory purchase is not satisfactory.¹⁴ However, we do not consider that it would be practical to suggest an alternative system for level crossings alone.

8.74 In Part 12 we note that the Lands Tribunal for Scotland already has a power to discharge title conditions, including servitudes, without the consent of the dominant owner.¹⁵ This power could be used to close servitude crossings. As we note in Part 12, the power does not extend to crossings that are purely statutory crossings, but it could be so extended by ministerial order. Presumably if a new system is introduced for the compulsory closure of private crossings, no such extension would be called for. An extension would in theory be possible, although it might not be desirable to have two possible mechanisms in parallel.

Public level crossings

8.75 In relation to public crossings, an application for a closure order could, where necessary, seek compulsory purchase of land¹⁶ required to build a replacement bridge or underpass. The application could also deal with the apportionment between the parties concerned of the costs of replacement. But an essential

¹⁴ The Law Commission has recommended law reform in relation to compulsory purchase: Towards a compulsory purchase code: (1) compensation (2003) Law Com No 286; Towards a compulsory purchase code: (2) procedure (2004) Law Com No 291. An overview of the current law is included in Appendix C of Law Com No 286. In 2005, the Government rejected our proposals on the basis that it was not practicable to find Parliamentary time: ODPM, Government Response to Law Commission report: Towards a compulsory purchase code (December 2005).

¹⁵ The Law Commission has suggested the possibility that as regards easements the law in England and Wales should follow the Scottish example: Consultation Paper on Easements, Covenants and Profits à Prendre (2008) Law Com No 186, Part 14. It should be noted that any legislation would apply to easements created in the future only and not to existing easements.

¹⁶ As with a level crossing closure order to close a private crossing, the order would specify the body which was to have the compulsory purchase powers.

element of an application would be a request to stop up or divert the highway or road currently running over the level crossing. In other words, closure would necessitate the stopping up or diversion of the existing highway/road over the crossing.

8.76 An application for a closure order in respect of a public level crossing might seek an order to divert the highway/road on each side of the railway. This could be a small diversion to bring the highway/road into alignment with a replacement bridge or underpass. Or it could be a substantial change to a footpath at some distance from the level crossing designed to ensure the continued integrity of the footpath network once the level crossing that formerly carried the footpath over the railway is closed.¹⁷

8.77 A decision about closure of a crossing would rest with the Secretary of State or in Scotland, Scottish Ministers. Later in this Part we discuss the implications of this as regards devolution.

8.78 The question arises as to who would decide on the stopping up or diversion. This focuses the issue on a conflict between matters traditionally regulated locally (that is, the vast majority of highways), and those regulated nationally (railways). We suggest that there are three options:

OPTION 1: A FINAL DECISION ON STOPPING UP/DIVERSION BY THE LOCAL HIGHWAY/ROADS AUTHORITY

8.79 Under this option the application for a closure order in respect of a public level crossing would be made to the Secretary of State/Scottish Ministers/Welsh Ministers, (which we will refer to as the “national authority”) as appropriate, covering all the proposed elements of the order. The question of stopping up would be referred by the national authority to the local highway/roads authority for decision. The other elements of the order, for example compulsory purchase or apportionment of costs, would be decided by the national authority, but of course would not go ahead if the stopping up was refused.

OPTION 2: A FINAL DECISION ON STOPPING UP/DIVERSION BY THE NATIONAL AUTHORITY

8.80 Again under this option the application for a closure order would be made to the national authority. In relation to the question of stopping up, there would be a requirement for the national authority to consult with the local highway/roads/planning authorities and other interested parties, including members of the public who may be affected. But the final decision would rest with the national authority.

OPTION 3: INITIAL DETERMINATION ON STOPPING UP/DIVERSION BY THE LOCAL HIGHWAY/ROADS AUTHORITY, SUBJECT TO AN APPEAL TO THE NATIONAL AUTHORITY

8.81 Once again the application for a closure order would be made to the national authority, but the question of stopping up would be referred for initial decision by

¹⁷ In the latter case, the diversion of the footpath might be dealt with under the provisions of the Highways Act 1980 or the Wildlife and Countryside Act 1981 in England and Wales, unless the diversion of the path had a sufficient causal link with the level crossing closure.

the local highway/roads authority. If the local highway/roads authority decided against stopping up, the applicant could ask the national authority to review that decision. The appeal would be on the merits of the application, rather than on grounds that would form the basis of an application for judicial review. The appeal would effectively be a re-determination of the question of stopping up.

8.82 The aim of this would be to retain the initial local focus in connection with decisions about stopping up, whilst also providing for such decisions to be overridden on appeal to the national authority who would seek to balance national and local interests.

DISCUSSION

8.83 It is evident that the local highway/roads authority would be better placed than the national authority to be aware of, and sensitive to, local and community concerns. There is a general legislative preference for decisions about stopping up or diverting highways/roads to be local functions. On the other hand, a local authority could not be expected to take the national perspective of the railway into account. We provisionally consider that option 3 presents the best balance.

8.84 We provisionally propose that the application for a closure order should be determined in England by the Secretary of State, in Wales by Welsh Ministers and in Scotland by the Scottish Ministers.

8.85 In relation to the question as to whether to stop up a highway or road, and whether to divert a highway or road either side of the railway, we suggest three options:

(1)

decision by the local highway/roads authority;

(2)

decision by the Secretary of State/Scottish Ministers/Welsh Ministers but subject to consultation with interested parties and local bodies; or

(3)

initial decision by the local highway/roads authority, subject to an appeal on the merits to the Secretary of State/Scottish Ministers/Welsh Ministers.

We provisionally favour the third option, but would invite comments from consultees.

Compulsory purchase and deemed planning permission

8.86 The grant of compulsory purchase powers must be limited in time, to minimise the blight on affected land values. We understand that, currently, powers granted under transport and works orders are typically limited to between three and five years. These time limits could well be longer than would be needed in the context of our simpler process. We therefore invite views from consultees on what time limit for the use of compulsory purchase orders would be appropriate.

8.87 We have also considered whether a closure order should incorporate deemed planning consent (for example for replacement of a level crossing with a bridge or underpass) as happens in the case of orders under the Transport and Works Acts, which allow for deemed planning consent in some circumstances. We have

not reached any provisional view on this matter; rather we invite views of consultees on whether planning consent should be deemed to be included in a level crossing closure order.

Apportionment of costs

8.88 The detailed arrangements for funding of level crossing closure is not an issue for us to consider.¹⁸ However, we make the following provisional proposal:

8.89 We provisionally propose that level crossing closure orders should be capable of including provision for the apportionment of the costs of closure and replacement between the statutory authorities concerned.¹⁹

8.90 We have considered, but provisionally rejected, a default rule that the promoter should pay unless contrary provision is made in the closure order.

8.91 The proper allocation of costs should be an integral part of the decision-makingprocess in relation to the level crossing order. Promoters are unlikely to come forward with an application for a closure order without a realistic proposal in relation to funding it; but if an application were made without proposals on funding, it would no doubt be rejected on that basis alone.

8.92 We suggest that section 255 of the Highways Act 1980 may be a suitable model for such a statutory provision. Section 255 provides, in certain circumstances, for the apportionment between the highway authority in England and Wales and the railway owner, of the costs of building a bridge over a railway.

8.93 We invite consultees to comment on the apportionment of costs of closure and replacement of level crossings.

Time-limits

8.94 If the maximum benefit is to be gained from a new procedure for the closure of level crossings, then timely consideration of applications would be highly desirable. Cost savings can be achieved if work on closing a level crossing is scheduled to coincide with other work on the track, or indeed on the highway in the vicinity of the track. But such scheduling can only take place if the decision-making on level crossing closure orders can be kept within reasonably short and predictable time-limits.

8.95 We provisionally propose that the procedure for level crossing closure orders should be subject to short time-limits at each stage, including consideration by the Secretary of State/Scottish Ministers/Welsh Ministers.

8.96 We ask consultees for their views on what time-limits there should be for the application process.

8.97 We offer the following for consideration, without claiming any special merit for them, as appropriately short time-limits for a simple closure order not involving the stopping up or diversion of a highway or road:

¹⁸ We discuss the community infrastructure levy in England and Wales in Part 9. ¹⁹ This would include Network Rail as a “statutory undertaker”.

(1)

serving of application to commencement of consultation: 1 month;

(2)

consultation: 12 weeks; and

(3)

determination by the national authority (following any further proceedings necessary): 2 months.

8.98 Different time-limits would be necessary in cases where applications for closure involved highways or roads, so as to take account of the time needed in connection with the decision-making process for stopping up including any appeal.

8.99 We invite views on what the time-limits should be for closure orders including the stopping up or diversion of a highway or road.

8.100 Where the time-limits are directed at the Secretary of State/Scottish Ministers/Welsh Ministers, we propose that they should be enforced only by public law remedies. If they are directed at the promoter, then failure to adhere to a time-limit should result in the rejection of the application, subject only to a power for the Secretary of State/Scottish Ministers/Welsh Ministers to extend the time-limit in exceptional circumstances.

8.101 Under the TAW/S procedures, “statutory objectors” (those whose private rights are affected and local authorities) have a right to a hearing before a person appointed by the national authority. Where there are other objectors, the national authority must decide whether to hold a public inquiry, a hearing, or to deal with the competing arguments by the exchange of written representations.

8.102 The new procedure we propose is intended to be quicker, cheaper and less onerous on all parties than the TAW/S procedure. Our provisional view is that, in particular circumstances, a hearing might be necessary, but generally the scale of the process would be better suited to proceeding by way of written representations.

8.103 We provisionally propose that, after the expiry of the consultation period, the Secretary of State/Scottish Ministers/Welsh Ministers should decide whether, exceptionally, to hold a hearing before a person appointed by them. Otherwise, further consideration of competing views should be dealt with by the exchange of written representations.

8.104 Under the proposed procedure, if it appeared to the national authority that the scale or significance of the proposal was such that a public local inquiry was needed, or that the proposal could be dealt with by a hearing, but that the hearing would be an extended and expensive exercise, then it would be justifiable to refuse the application on the basis that the promoter should use the TAW/S procedures instead.

The relationship between the proposed new procedure and the procedures for transport and works orders

8.105 We do not propose any change to the current system whereby applications for a TAW/S order can include provision for the closure of level crossings, particularly as part of a larger scheme. We think it would be undesirable to have a system which required promoters of such a scheme to obtain a level crossing closure order (to close any level crossings) in addition to a TAW/S order for the other elements of the scheme.

8.106 Provisionally we do not consider that it is necessary to exclude the possibility of obtaining a TAW/S order where a level crossing closure order may be obtained, or the other way round, but we invite consultees’ views.

8.107 The two systems would operate in tandem. The proposed level crossing closure orders should be easier and cheaper to obtain than TAW/S orders and so would be likely to be the first choice when it was sought to close a single crossing. TAW/S orders would continue to be appropriate where crossings were to be closed as part of a larger scheme. However, if for some reason it were considered easier or more effective to seek a TAW/S order to close a single crossing, there would be nothing to prevent that.

The status of level crossing closure orders

8.108 We have considered whether or not level crossing closure orders should be statutory instruments.²⁰ We note that currently under the Level Crossings Act 1983, level crossing orders are not statutory instruments. We are not aware of the reason why the 1983 Act did not provide for such orders to be statutory instruments.

8.109 The new level crossing closure orders may well need to contain specific amendments, modifications or disapplications of primary or secondary legislation. One advantage of statutory instruments is that, provided the enabling power is clear, they can make provision of this kind.²¹ Another advantage of statutory instruments is that the power to make them includes a power to amend, revoke or re-enact the statutory instrument itself.

8.110 Statutory instruments are classified and numbered in the statutory instrument series. It seems likely that if a level crossing closure order were to be a statutory instrument it would be classified as local rather than as general. The usual practice is that local instruments are not printed and put on sale, nor are they included in the annual printed volumes of statutory instruments. However, one way of ensuring that level crossing closure orders are readily accessible would be to provide that such orders are statutory instruments and that they are to be treated as general instruments for the purposes of printing and publication.²²

8.111 We therefore provisionally propose that level crossing closure orders should be statutory instruments and that they should be treated as general instruments.

Closure of level crossings and devolution: Scotland

8.112 As mentioned in Part 2, the proposed new system of orders dealing with closure

²⁰ Or in Scotland, Scottish Statutory Instruments.

²¹ We note that it is possible to amend primary legislation in TAW/S orders, which are statutory instruments.

²² As a result, such instruments would be available on the website of the Office of Public Sector Information.

of level crossings raises a potential constitutional difficulty as regards the respective powers of the Secretary of State and Scottish Ministers.

8.113 Under the proposed policy options outlined above, the policy intention is that the Scottish Ministers should have the power to make the final decision on closure of level crossings in Scotland. However, as we have seen, in the case of public crossings, closure requires the stopping up of the highway/road which crosses the railway.²³ In Scotland where the roads authority refuses to stop up a road, we propose an appeal to the Scottish Ministers. Under the current devolution arrangements a difficulty would arise in relation to Scotland if, on appeal, the Scottish Ministers refused to order the stopping up of a road. In that situation there would in effect be a conflict between the Scottish Ministers, as final decision-makers on stopping up, and the Secretary of State (who under the current devolution arrangements would have to be the final decision-maker on closure of level crossings²⁴). We suggest that this problem might be avoided by means of “executive devolution”, as discussed in the following paragraphs in order to enable the Scottish Ministers to make the final decision on closure of crossings in Scotland.

8.114 In some situations it may be desired to give Scottish Ministers the power to carry out certain functions as regards Scotland without changing the reservations in Schedule 5 to the Scotland Act 1998 and therefore without altering the legislative competence of the Scottish Parliament. In these situations the transfer of functions to Scottish Ministers can be effected by means of primary legislation enacted by the UK Parliament. Alternatively, an Order in Council (called a “transfer of functions order”) may be made under section 63 of the 1998 Act. Such an order transfers certain reserved functions so that in so far as those functions are to be carried out in or as regards Scotland, they come within the devolved competence of the Scottish Ministers. This process is often called “executive devolution”.

8.115 We therefore propose that under the new system for level crossing closure orders, the power for the Secretary of State to make orders as regards level crossings in Scotland should be transferred to the Scottish Ministers by means of executive devolution. In addition to resolving the constitutional difficulty, such a transfer of functions would have the benefit of achieving the more general policy objective that Scottish Ministers should have the power to make level crossing closure orders in respect of both public and private crossings in Scotland.

8.116 We provisionally propose that under the new system for closure of level crossings, the function of making level crossing closure orders in relation to both public and private level crossings in Scotland should be transferred to the Scottish Ministers.

²³ Stopping up is required in order to extinguish the right of way.

²⁴ In terms of the health and safety reservation in Schedule 5 to the Scotland Act 1998 (discussed in Part 2 above), the function of making level crossing closure orders on grounds of safety, would rest with the Secretary of State. In cases where a closure order is on grounds other than safety, it would seem that the reservation of railways under the 1998 Act would apply. It is for that reason that executive devolution is required so as to enable the Scottish Ministers to deal with closure orders in Scotland.

Closure of level crossings and devolution: Wales

8.117 A similar constitutional difficulty arises in relation to Wales. The functions previously performed by the Secretary of State in relation to highways in Wales have generally been transferred to the Welsh Ministers. This includes confirmation of stopping up and diversion order under sections 118A and 119A of the Highways Act 1980.

8.118 As explained in Part 2, Welsh devolution has developed in a different way to devolution in Scotland. In particular, while executive devolution is the exception in Scotland, in Wales it is the norm. When considering the introduction of a new power to make level crossing closure orders, it is therefore necessary to consider whether the Secretary of State or Welsh Ministers should exercise the power. In the light of our conclusions in relation to Scotland, it seems clear to us that the same power should be exercised in Wales by Welsh Ministers. In both cases, the devolved administration has both highways/roads and TAWS powers, and therefore we consider that both should be treated in the same way.

8.119 We therefore provisionally propose that under the new system for closure of level crossings, the function of making level crossing closure orders in relation to both public and private level crossings in Wales should be transferred to the Welsh Ministers.

OTHER MECHANISMS FOR MANAGING CHANGE

8.120 As we have sought to show in this consultation paper, many different interests come into play in relation to level crossings. We therefore need to consider how to manage the relationship between these interests as they relate to level crossings.

8.121 The management of level crossings does not only involve issues of safety. Other issues arise. In this section, we consider whether there would be advantages in introducing new ways of fostering co-operation and co-ordination as regards matters relating to the ongoing management of level crossings.

Infrastructure agreements

8.122 There may be scope for improving the relationship and in particular consultation and co-operation between the various parties concerned with level crossings. Safety and regulation of level crossings should be seen as more than purely a “railway problem”. Rather, it is an issue of joint concern of rail, highway/road and planning interests and other interested parties such as developers, where appropriate dialogue between them would allow the most beneficial solution to emerge.

8.123 Recently, innovative use has been made of “safety interface agreements” in the Australian states. Under the Australian system, it is compulsory for highway and rail authorities to enter into such agreements in relation to all level crossings. These then operate as the principal risk regulators of level crossings.²⁵

8.124 We consider that there might be scope to adapt elements of this idea for use in

²⁵ An example of an Australian interface agreement is available to download from our websites: www.lawcom.gov.uk and www.scotlawcom.gov.uk.

Great Britain with the introduction of infrastructure agreements. We suggest that it would probably not be necessary for such agreements to be made compulsory in all situations, unlike in Australia. However, we think that such agreements might be useful where some major change is planned at a level crossing, for example where the closure and replacement of a public vehicular level crossing is being proposed. In such a situation there could be a requirement for the interested parties to enter into an infrastructure agreement before an application for closure of a level crossing is made.

8.125 Infrastructure agreements might also be useful where some other major change is contemplated, for example where it is planned to change the protective measures at a level crossing such as from a half-barrier to a full-barrier or vice versa.

8.126 We invite views of consultees on whether it would be useful to introduce a system of infrastructure agreements for level crossings.

Road-rail partnership groups

8.127 In recent years, Network Rail has encouraged the creation and development of road-rail partnership groups to consider a wide range of mutual areas of concern, including level crossings. These partnerships often cover fairly large geographical areas involving a large number of level crossings, although that is not necessarily the case. The primary participants are Network Rail and local authorities, but other stakeholders and interested parties may also be involved. Our understanding is that such partnerships have been considered very useful for discussing issues of mutual concern in relation to level crossings. Road-rail partnerships have also been used to some advantage to consider the closure of level crossings.

8.128 The main focus of these partnerships has been on public vehicular level crossings. Clearly there may be more competing interests at play in the case of a public level crossing when compared to a private crossing. However, collaborative arrangements may well have something to contribute to the issues surrounding private crossings.

8.129 We have considered whether it would be helpful for there to be a more formalised mechanism to bring together the key interests at level crossings. The railway operator and the highway/roads authorities will always be key interests at public crossings. There will usually be others with an interest, such as the planning authority, other representatives of the local community, developers and voluntary organisations representing interests of those such as walkers and horse riders.

8.130 In this connection we have considered whether there would be benefit in providing for the setting up of new “level crossing panels” which would afford an opportunity for interested parties to come together to discuss relevant matters concerning level crossings. However, a possible disadvantage of this might be that creating new panels would impose undue administrative and financial burdens on those with an interest in level crossings, particularly on voluntary organisations such as those representing ramblers and horse riders. We think that it would be better not to create any new panels but rather to expand on the existing road-rail partnerships. A recent report indicated that the establishment of

more road-rail partnership groups in appropriate areas would be beneficial.²⁶

8.131 We provisionally propose the expansion of the role of road-rail partnership groups, as they have proven to be successful in bringing together the various and often competing interests dealing with matters relating to level crossings.

CREATION OF NEW LEVEL CROSSINGS

8.132 We note the current guidance in relation to TAW/S orders indicates that new level crossings should only be proposed in exceptional circumstances. We are also aware of the policies of both Network Rail²⁷ and ORR against the creation of new crossings. We provisionally suggest that it would be appropriate to retain the current system for authorising new level crossings under a TAW/S order, or, in England, under the Planning Act 2008, as part of a proposal for a major new railway or some other scheme where, as an exception, a new level crossing is both necessary and safe.

8.133 However, we consider that there may be circumstances where it is desirable to create a single new level crossing over an existing line. For example, there are particular issues about access across the railway in the Highlands of Scotland, both in respect of leisure use of the countryside and access by local communities. In such circumstances, there may need to be a system for the creation of such crossings. For the reasons we explain in Part 12, statutory access rights give rise to significant differences, both practical and legal, between the situation in England and Wales and that in Scotland (although we would add that there may be similar practical issues in parts of Wales and England). In this context, it is possible that in some circumstances it would be safer, more convenient, or both, to create a new level crossing with a non-vehicular public right of way. It might also be necessary or desirable to create a “new” level crossing to replace an existing level crossing nearby where a replacement was justified, but the case for a bridge or underpass could not be made out.

8.134 We provisionally consider that creating a new level crossing in such circumstances is unlikely to require special powers where the railway operator and ORR agree that a crossing should be provided. For instance, it seems that where it is thought necessary to create a footpath crossing to enable walkers to cross the railway line more safely than crossing the track by trespassing at any convenient point, the compulsory acquisition of adjoining land would be unnecessary to accommodate the construction of such a crossing. In such cases the railway operator would simply construct the new crossing.

8.135 The question is therefore whether there should be a more general provision, parallel to our proposed new level crossing closure orders, providing a procedure

²⁶ E Delmonte and S Tong, Traffic Research Laboratory Report No PPR377, Investigation into Traffic Delays at Level Crossings (December 2008).

²⁷ It is the policy of Network Rail and the Office of Rail Regulation to avoid the construction of new level crossings where at all possible in the interests of safety. Generally a bridge or underpass will be preferred. See Network Rail’s policy: http://www.networkrail.co.uk/documents/4424_level%20crossing%20policy.pdf (last visited 14 June 2010). See also ORR’s policy: http://www.rail-reg.gov.uk/server/show/nav.1564 (last visited 14 June 2010).

for the creation, in a legal sense,²⁸ of new level crossings. For example, in some cases the construction of a new level crossing may entail the acquisition of adjoining land, so there may be a need for compulsory purchase powers. In other situations there may be local pressure for a new crossing but the railway operator (and possibly ORR) are opposed to it. Where such opposition exists, there may be a need for a statutory provision requiring the construction of a level crossing. There is also the possibility of an existing private level crossing being made available for public use. These issues arise especially in Scotland, if (as is typically the position) the land on each side of the railway is subject to public access rights under the Land Reform (Scotland) Act 2003, so that a local absence of suitable public crossings may impair the exercise of public access rights. Accordingly, this issue is discussed further in Part 12. Nevertheless the question of new level crossings can arise without reference to the Scottish legislation about public access rights. Hence these issues are general issues and thus relevant to England and Wales as well as to Scotland.

8.136 Should there be statutory provision requiring the construction of new level crossings on existing railway lines in certain specified circumstances?

8.137 If so, should the decision-maker be able to override opposition to the construction of a new level crossing?

REQUIREMENTS IN SPECIAL ACTS AND LEVEL CROSSING ORDERS

8.138 We need to consider what should be done, if a safety regulation system based on HSWA 1974 were in place, about the requirements in existing special Acts and level crossing orders dealing with safety matters. In particular, the question arises as to whether such requirements in special Acts and level crossing orders can be repealed or revoked or whether they should be disapplied.

8.139 As regards special Acts, so far as we can determine, there are several thousand still in force. In practical terms it would be difficult and time-consuming to repeal them on an individual basis. In any event, special Acts contain non-level crossing-related provisions which are likely to be still effective and necessary, for example those establishing the line of a railway. We have considered whether we should propose the repeal the specific provisions in special Acts dealing with safety matters at level crossings in so far as HSWA 1974 would apply in place of those provisions. We have concluded that this would not be advisable. Such a general repeal might have unexpected consequences in relation to provisions of the special Acts and lead to arguments as to which provisions had been repealed and which were still in force. In particular, such a general repeal of this nature would be likely to give rise in Parliament to questions of competency.

8.140 The alternative to repeal of the individual safety provisions in special Acts would be a general provision disapplying any such provisions. We recognise that one possible disadvantage of this approach would be that the safety provisions in special Acts would continue to have a shadow existence. They would not be repealed but rather would only be deprived of legal effect so long as the disapplication provisions remained in force. However, on balance we are inclined

²⁸ Here we are talking about the need for a procedure to deal with the legal aspects of creating a new level crossing rather than the engineering and physical aspects involved such as barriers, warning lights, and so on.

to think that disapplication of the special Act provisions relating to safety matters would be the safer approach to adopt in the event of a move to reliance on HSWA 1974 as regards safety regulation at level crossings.

8.141 In addition, we think provision should be made to enable the repeal (and consequential amendment) of individual provisions in special Acts in so far as they relate to safety. This would involve conferring on the Secretary of State a power to make orders repealing railway special Acts, or parts of them (and, where necessary, amending them). This power could be used when, for example, consideration had to be given to the terms of a special Act by the Department for Transport, ORR or a railway operator, for some other reason. Repeal could then be considered and effected through a fairly straightforward procedure. Such a power might also make it easier to embark on a more general programme of repeal, if the resources were to become available.

8.142 We therefore would welcome the views of consultees on our proposal that the provisions in special Acts should be disapplied in so far as they deal with safety at level crossings to the extent that HSWA 1974 applies.

8.143 We would also welcome the views of consultees as to whether there should be a power for the Secretary of State to make orders to enable the repeal of provisions in special Acts in so far as the provisions relate to safety matters.

8.144 As regards level crossing orders, if the HSWA 1974 system were to be adopted such orders would become redundant. We provisionally propose that all existing level crossings orders should be revoked if the HSWA 1974-based system is adopted.

HERITAGE AND PRIVATE RAILWAYS

8.145 Our provisional proposals have been largely developed to address the issues we see arising on the mainline railway, where the large majority of level crossings are located. However, we are also aware of the size and significance of the heritage railway sector. Heritage railways are part of the railway industry. But they are also significant players in the leisure and tourism industries. And nearly all are run by voluntary organisations, of which many are charities. Although employing a sizeable workforce, they also rely significantly on volunteer labour. Level crossing safety is a live concern amongst heritage railways. We have not been able to find a definitive figure for the number of level crossings on heritage railways, but understand that there may be as many as 1,000 or 1,500. Many issues are the same as on the mainline, but there are also differences. Heritage trains are typically slower than those on the mainline, and so may pose less of a risk at level crossings. But they are also lighter and may have been built to less exacting safety standards so the danger to the train and its passengers as opposed to, say, a motorist may be greater on a heritage railway.

8.146 There are also a significant number of private railways, mainly in use in docks, factories or other private industrial settings. Again, we have no definitive figure for level crossings on private railways, but we think there are far fewer than on heritage railways. It may be that there are different, perhaps fewer, safety and regulatory issues for private railways. But at the same time, these railways are governed by the broad regulatory structure dealing with mainline railways, and

come under the oversight of ORR generally.

8.147 We provisionally consider that our proposals should apply to all level crossings on all types of railway.²⁹

8.148 However, we would welcome the views of consultees as to whether our provisional proposals should be adapted for heritage railways and private railways and if so, how.

²⁹ Readers will recall that the definition of “railway” for the purposes of this project is limited to those where the gauge meets the statutory minimum of 350mm or about 13 ¾”.

INTRODUCTION

9.1 A development can have an effect on a level crossing, even if the development is not adjacent to it, where it results in an increase in use of the highway network. Any increase in use of the highway can increase the risk associated with the level crossing.

OVERVIEW OF THE SPATIAL PLANNING SYSTEM IN ENGLAND AND WALES

Regional level strategies

9.2 The planning system in England and Wales is “plan-led”. Development plans are created at both the regional and local level, taking into account the Secretary of State’s policy guidance as set out in planning policy statements.¹ Currently, regional plans, called regional spatial strategies, are prepared by the eight regional assemblies in England and Greater London² and seek to integrate planning policy with other policy areas. The Regional Spatial Strategy (RSS) contains a regional transport strategy and should include a consideration of the inter-relationship between transport and infrastructure. Regional planning boards, appointed by the Secretary of State, review and revise the regional spatial strategies.³ Consultation with planning and transport stakeholders from both the public and private sector is emphasised, as part of the RSS process as is the importance of a robust evidence base. Regional planning boards should have regard to national transport policy statements, including Transport White Papers and other policy documents, including Network Rail’s Strategic Business Plan.⁴

Wales

9.3 As set out in Part 2, planning is devolved in Wales. The powers of the Secretary of State have been transferred to the Welsh Assembly Government.⁵ The Wales Spatial Plan does not have quite the same role as the regional spatial strategies, although it should be taken into account when creating local development documents. The Planning Act 2008 transferred further spatial planning powers to the Welsh Assembly Government, giving them powers in relation to plans for development and land use. This encompasses both plans created by the Welsh

http://www.communities.gov.uk/publications/planningandbuilding/planningsustainablefuture

(last visited 27 June 2010).

Ministers and local plans, including the relationship between the Wales Spatial Plan and local development documents.

Local level plans

Local development frameworks

9.4 A local development framework translates the regional spatial strategy to a local level. It is underpinned by a core strategy which covers a 15 year period. That provides a guide as to where long term investment in infrastructure should take place within the plan area and where development should be located. Consultation with stakeholders, including key infrastructure providers, such as Network Rail, is essential.

9.5 In addition, the local development framework consists of local development documents. They provide guidance in greater detail taking into account the regional spatial strategy and the core strategy for the local development framework. Together the suite of documents is the development plan. Decisions on planning applications must be taken in accordance with the development plan unless other material considerations indicate otherwise.⁶

Local transport plans

9.6 Under section 108 of the Transport Act 2000, local authorities are to prepare local transport plans:

(1) Each local transport authority must—

(a)

develop policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within their area, and

(b)

carry out their functions so as to implement those policies.

9.7 Local transport plans⁷ must take account of the regional spatial strategy and should contain evidence of successful joint working with railways actors.⁸ Any rail projects included in a local transport plan should include evidence that they have the support of key rail industry partners.

9.8 Under section 109 of the Transport Act 2000 local authorities in England must consult with the operators of any “network or station, or of any railway services, in their area” in relation to the drawing up of local transport plans. This provision came into effect on 9 February 2009.⁹ It does not apply in Wales where transport plans must be approved by the Welsh Assembly Government which may only

approve those which are “consistent” with the Welsh Transport Strategy¹⁰ and “adequate” for its implementation.¹¹ Approval of the Secretary of State is not required in England.

9.9 When formulating local development documents and transport plans local authorities should explore and identify possible proposals for improving rail travel in liaison with railways actors. This includes proposals for reopening railway lines and creating new stations.¹²

INDIVIDUAL PLANNING DECISIONS AND LEVEL CROSSINGS

Introduction

9.10 When a planning application of significant size is proposed, pre-application consultation takes place by the developer with the community and stakeholders. If required, an environmental statement is prepared. The application is then submitted. It is publicised and further consultation takes place before the planning authority determines the application on its merits. The Secretary of State retains a call-in power for applications of more than local importance.¹³

9.11 Planning decisions are to be made in accordance with the development plan, unless material considerations indicate otherwise.¹⁴ Material considerations will vary depending on the application and must be genuine considerations related to the development and use of the land in the public interest and relating to the application in question.¹⁵ Whether something is a material consideration is a matter of law and ultimately is a matter to be determined by the courts. The weight to be attached to each material consideration in assessing the application is a matter for the planning authority.¹⁶

9.12 The impact of a development on a level crossing could be a material consideration which the planning authority should take into account. Means of access to a development, availability of infrastructure, and traffic issues are frequently material considerations¹⁷ and it has been held that the safeguarding of land for a road widening scheme can be a material consideration.¹⁸ We think it likely that a planning authority could refuse planning permission because of the adverse impact upon a level crossing.

Consultation with transport actors

9.13 Where a development is likely to result in a material increase in the volume or a

¹⁰ Transport Act 2000, s 109A(4)(a).

¹¹ Transport Act 2000, s 109A(4)(b).

¹² Department of Communities and Local Government, Planning Policy Guidance 13: Transport (2001) para 74.

¹³ Town and Country Planning Act 1990, s 77. For policy on when this is done see Written Answer, Hansard, (HC), 16 June 1999, vol 333, col 138.

¹⁴ Planning and Compulsory Purchase Act 2004, s 38(6).

¹⁵ R v Westminster City Council ex parte Monahan [1990] 1 QB 87.

¹⁶ Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.

¹⁷ See V Moore, A Practical Approach to Planning Law (10th ed 2007) para 12.46.

¹⁸ Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508.

material change in the character of traffic using a level crossing over a railway, a Transport Assessment must be prepared and submitted as part of the planning application and the operator of the rail network must be consulted.¹⁹ The detail of the assessment will vary with the size of the project. For some developments a simplified transport statement will be sufficient and there is a possibility that no formal process will be required where the transport impact is limited.²⁰

9.14 A material increase has been held to be an increase of 5% or less in a congested

21

area.

9.15 Examples of material changes to the transport network that could affect level crossings include:

(1)

changes to the road layout, for example for new residential estates that may cause traffic increases such as to cause tailbacks onto crossings;

(2)

construction of houses, schools and so on that could increase the number of vehicles or pedestrians; and

(3)

construction of industrial or similar premises near to crossings where turning traffic, particularly large or slow moving vehicles, might cause tailbacks. ²²

9.16 In addition, the local planning authority should consult either the Secretary of State or the highway authority before granting planning permission where material changes will result. Consultation should take place, for example, where there would be a material increase in the volume or a material change in the character of traffic entering or leaving a classified road, proposed highway or trunk road. It should also take place where development is likely to prejudice the improvement or construction of a classified road or proposed highway and also where development would involve the formation, laying out or alteration of any means of access to a highway (other than a trunk road).²³

9.17 During the passage of the Bill which became the Road Safety Act 2006, certain

¹⁹ The operator of the rail network is defined as including or consisting of the railway operator in question and the Secretary of State for Transport in England or the Welsh Assembly Government in Wales. Town and Country Planning (General Development Procedure) Order 1995, SI 1995 No 419, art 10(e)(ii). See Department for Transport and Department of Communities and Local Government, Guidance on Transport Assessment (March 2007).

²⁰ Department for Transport and Department of Communities and Local Government, Guidance on Transport Assessment (March 2007) http://www.dft.gov.uk/pgr/regional/transportassessments/guidanceonta (last visited 27 June 2010).

²¹ Department of Communities and Local Government, Planning Policy Guidance 13: Transport (April 2001) http://www.communities.gov.uk/publications/planningandbuilding/ppg13 (last visited 27 June 2010).

²² Circular 9/95 ODPM, quoted in Note on Planning and Railway Level Crossings received from the ODPM on 14 March 2005, Appendix 2 of First Report of the Working Party to the National Level Crossing Safety Group (September 2006).

²³ Town and Country Planning (General Development Procedure) Order 1995, SI 1995 No 419, art 10 (e)-(I).

amendments were tabled which would have required consultation with railway undertakers where development might require changes to protective arrangements at level crossings.²⁴ Consultation was to have been restricted to cases where a crossing was within 15 miles of the proposed development. These amendments were not included in the Bill as enacted.

Planning decisions in practice

9.18 In general it is the responsibility of the local planning authority to decide who to consult, when to consult and when the impact upon a level crossing will result in a “material increase” in traffic. It may be that local planning authorities have inadequate knowledge of the impact of planning decisions on level crossings and the problems that an increase in traffic can present.

9.19 We would welcome examples or experiences of how consultation works in practice.

9.20 In practice, the rail operator may be able to take steps to engage in the planning process, as suggested by the National Level Crossing Safety Group.²⁵ Network Rail can respond to local planning authority consultations on planning applications and suggest conditions or planning obligations to mitigate the effect of developments. They can also monitor emerging plans for development proposals which might have a significant impact on traffic levels at level crossings and propose improvements to level crossings as part of the development plans where necessary.

Planning decisions and closure of level crossings

9.21 As outlined in Part 6, the local planning authority has powers to stop up or divert footpaths and bridleways where it is necessary in order to carry out works authorised under planning permission.²⁶ This includes footpaths and bridleways which cross a railway. In considering the use of these powers, a local planning authority could consider the impact of a development upon a level crossing and whether this can be mitigated, for example, by stopping up or diverting a footpath.

9.22 Full engagement of all interested parties in consultation processes is desirable. For example, if the traffic over a level crossing increases to the point that the existing protection is no longer adequate, the railway operator may have to upgrade the crossing at its own expense. The upgrade of an automatic half-barrier crossing to a full-barrier could cause greater traffic delays due to the longer “down time” of full-barrier crossings, requiring the local authority to seek alternative traffic systems. If the impact upon the level crossing had been discussed between the relevant actors prior to the development taking place, a more integrated solution might have been found. If changes have to be made after the development has been completed, the cost is likely to be met by the railway operator (with the possibility of a contribution from the local highway

²⁴ Hansard (HL), 29 November 2005, vol 676, col 139.

²⁵ Note on Planning and Railway Level Crossings received from the ODPM on 14 March 2005, Appendix 2 of First Report of the Working Party to the National Level Crossing Safety Group (September 2006).

²⁶ Town and Country Planning Act 1990, s 257. The Secretary of State and Welsh Ministers have a similar power in relation to highways: Town and Country Planning Act 1990, s 247.

authority) and the opportunity of a developer contribution is lost.

9.23 Planning authorities can impose conditions on the grant of planning permission for a proposed development under section 70 of the Town and Country Planning Act 1990. Conditions must be necessary, and “fair and reasonably relate to the permitted development”.²⁷ For example, a planning authority could place a negative condition upon the developer of a housing or industrial development, preventing the project from going ahead until the level crossing had been upgraded or replaced with a bridge. These “Grampian conditions” are permissible even though the works or action required is outside the control of the developer.²⁸

9.24 A planning authority may also require the developer to contribute to the cost of the upgrade or replacement level crossing through a section 106 agreement, which we discuss below.

9.25 There appear to be adequate legal tools available in the planning process to protect level crossings and the road network from any impact arising from developments. But we are aware from anecdotal material from the industry that there is a view amongst interested groups that planning authorities do not adequately take into account the impact of proposed developments on level crossings.²⁹ But concerns remain as to how often consultation and joined-up working between planning authorities and railways actors takes place in practice. As a result, opportunities for collaboration may be lost, and planning decisions may not take into account the need for review of the protective measures at level crossings and consideration of future convenience of crossing users.

9.26 Do consultees think that the current practice of consultation relating to level crossings is adequate between local planning authorities, railway interests, developers and the public? If not, we would welcome specific examples.

9.27 Do consultees think that the current legal requirements for consultation where development affects a level crossing should be modified? If so, what modifications should be made?

PLANNING LAW AND FUNDING OF INFRASTRUCTURE IMPROVEMENTS

9.28 Development can have a significant impact on the surrounding infrastructure. The planning system in England and Wales incorporates provision for financial contribution by developers in order to mitigate these effects. What follows is a brief outline of the current system of section 106 obligations (also called “section 106 agreements”) and the Community Infrastructure Levy and their potential use in relation to level crossings.

Section 106 obligations

9.29 In England and Wales where a planned development requires infrastructure

²⁷ Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1958] 1 QB 554.

²⁸ Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 SC (HL) 58.

²⁹ See also Department of Communities and Local Government, Infrastructure Delivery, Spatial Plans in Practice: Supporting the Reform of Local Planning (June 2008) para 1.26.

changes, funding is usually obtained from the developer by way of an agreement under section 106 of the Town and Country Planning Act 1990 ("section 106 obligation"). This provision allows local planning authorities to negotiate with developers to come to an agreement or obtain an undertaking which:

(1)

restricts the development or use of land in a specified way;

(2)

requires specified operations or activities to be carried out on, under or over the land;

(3)

requires the land to be used in a specified way; or

(4)

requires a sum or sums to be paid to the local authority, on a specified date or dates or periodically.³⁰

9.30 A local planning authority may obtain funding for infrastructure outside the boundary of the development site, but the subject matter of a planning obligation must be fairly and reasonably related in scale and kind to the proposed development.³¹ The section 106 obligation may require a developer to contribute to the widening of a public highway.³²

9.31 Section 106 obligations are used to develop public transport infrastructure and development plans may include a policy on such agreements. Such planning obligations may be used in relation to level crossings, although we are not aware of any instance in which this has happened.

9.32 Planning obligations are linked to the development plans outlined above. The development plan should outline the authority’s policies in relation to the funding of development proposals. These policies should provide an explanation and a justification for the circumstances in which a local planning authority may seek a planning obligation.³³

9.33 The practice relating to section 106 obligations varies across the country. Research commissioned by the Department for Communities and Local Government supported concerns that only a very small proportion of developers contributed to infrastructure under the section 106 scheme.³⁴

The Planning Act 2008 and the Community Infrastructure Levy

9.34 In April 2010 the Community Infrastructure Levy was brought into force by the Community Infrastructure Levy Regulations 2010³⁵ under the Planning Act 2008

³⁰ Town and Country Planning Act 1990, s 106(1).

³¹ Office of the Deputy Prime Minister Circular 5/2005, Planning Obligations, para B9.

³² Bradford City Council v Secretary of State for the Environment [1986] JPL 598 CA.

³³ Office of the Deputy Prime Minister Circular 05/2005, Planning Obligations, para B8.

³⁴ Department of Communities and Local Government, Community Infrastructure Levy, An Overview (March 2010) para 5. Available at:

http://www.communities.gov.uk/publications/planningandbuilding/communityinfrastructurele vy (last visited 27 June 2010).

³⁵ Community Infrastructure Levy Regulations 2010, SI 2010 No 948.

across England and Wales.³⁶ The aim of the levy is to pass on infrastructure costs required by a development to the developers or owners of the land.³⁷ It is hoped that it will supplement the existing powers relating to section 106 obligations, under the Town and Country Planning Act 1990.

9.35 Funding obtained by way of the Community Infrastructure Levy may be used by the local authority to fund infrastructure development within the local authority’s area,³⁸ and to do things outside its area. Section 216 (7)(d)-(f) of the Planning Act 2008 provides for regulations to be made, enabling a local planning authority to pass money on to another body for this purpose.

9.36 However, the introduction of the Community Infrastructure Levy is discretionary. Each local planning authority can decide whether it wishes to impose the levy and at what level, taking into account the infrastructure, planning and development plans for the area.³⁹ The impact of the Community Infrastructure Levy can only be assessed once it becomes clear to what extent local planning authorities decide to use this power.

9.37 The Community Infrastructure Levy, and the assessment of the infrastructure needs of an area which would be necessary to implement it, provide an opportunity for discussion of the future of any level crossing in that area.

9.38 We provisionally think that the current legal provision is sufficient to allow for developer contributions towards closure, replacement or improvement of level crossings. It may be that what is required is guidance, which would be beyond the scope of this project.

9.39 Do consultees think that section 106 obligations are appropriate legal mechanisms for obtaining developer contributions for upgrading or replacing level crossing infrastructure?

9.40 Will the situation be improved if the Community Infrastructure Levy is adopted by local planning authorities?

9.41 If not, what more is needed?

³⁶ There is no equivalent Community Infrastructure Levy in Scotland.

³⁷ Planning Act 2008, s 205(2).

³⁸ Planning Act 2008, s 216.

³⁹ Department of Communities and Local Government, Community Infrastructure Levy, An Overview (March 2010); Department of Communities and Local Government, Community Infrastructure Levy Guidance: charge setting and charging schedule procedures (March 2010). Available at: http://www.communities.gov.uk/publications/planningandbuilding/cilguidance (last visited 27 June 2010).

INTRODUCTION

10.1 As mentioned in Part 9, developments can have an impact on nearby level crossings as a result of the increased use of the road network. As planning is a devolved matter we discuss the issues relating to Scotland separately.

10.2 The main legislation relating to planning in Scotland is the Town and Country Planning (Scotland) Act 1997.¹ The Planning etc (Scotland) Act 2006 amends certain provisions of the 1997 Act. The main change of relevance to discussion of level crossings is in relation to planning agreements, which we discuss below.

10.3 The Scottish Ministers have policy responsibility for planning matters in Scotland. However, the bulk of everyday planning decisions are made by local authorities (who are “planning authorities” for the purposes of planning legislation²), with the Scottish Ministers exercising a supervisory function.³ There are also planning circulars and planning advice notes issued by the Scottish Ministers, which although not legally binding, are often taken into account in local decisionmaking.⁴

INDIVIDUAL PLANNING DECISIONS AND LEVEL CROSSINGS

10.4 Subject to certain exceptions, an application to a planning authority for planning permission is required where there is “development” of land.⁵ The Planning etc (Scotland) Act 2006 introduced new categories of “national”, “major” and “local” developments.⁶

10.5 In relation to local developments, the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008⁷ provide that planning authorities must consult with Network Rail Infrastructure Limited or any other railway undertakers:

¹ A commentary on the 1997 Act can be found in J Rowan-Robinson, Town and Country Planning (Scotland) Act 1997 (2009).

³ For example, under s 46 of the 1997 Act, the Scottish Ministers may “call in” planning applications.

⁴ For Scottish planning policy see http://www.scotland.gov.uk/Topics/BuiltEnvironment/planning/National-Planning-Policy/newSPP (last visited 27 June 2010).

⁷ Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008, SI 2008 No 432.

…where the development is likely to result in a material increase in the volume or a material change in the character of traffic using a level crossing over a railway.⁸

10.6 As we mentioned in Part 9 in relation to planning in England and Wales, we have heard anecdotally that there is a view amongst interested groups that planning authorities do not always take adequate account of the impact of proposed developments on level crossings.

10.7 We would welcome examples or experiences of how consultation works in practice.

10.8 We noted in Part 9 that during the passage of the Bill which became the Road Safety Act 2006, amendments were tabled which would have required consultation with railway undertakers.⁹ However, as mentioned, those amendments were not included in the Bill as enacted. The question arises therefore as to whether the current requirement under the 2008 Regulations needs to be strengthened or amended to ensure that proper consideration is given by planning authorities before granting planning permission for developments as to the potential impact on level crossings. We therefore ask consultees the following question:

10.9 Should amendments be made to the requirements under the 2008 Regulations for consultation with Network Rail Infrastructure Limited and other railway undertakers, where development is likely to affect a level crossing to a material degree?

10.10 In determining an application, the planning authority must have regard to the provisions of any development plan, so far as material to the application, and any other material considerations.¹⁰ There is some uncertainty over the meaning of “material considerations” in this context, as what may be material in a particular case usually turns on the facts.¹¹ The weight to be given to any particular consideration is a matter for determination by the planning authority/Scottish Ministers,¹² and should only be reviewed by the courts where the decision is so unreasonable that no reasonable authority could have come to it.¹³ The planning authority must also take into account any representations relating to the application, for example, following consultation with Network Rail as outlined

¹⁰ Town and Country Planning (Scotland) Act 1997, s 37(2).

¹¹ See generally Rowan Robinson and others, Scottish Planning Law and Procedure (2001) para 8.33ff.

¹² City of Edinburgh Council v Secretary of State for Scotland and Revival Properties Ltd

1997 SCLR 1112,1998 SC (HL) 33.

¹³ This is referred to as Wednesbury unreasonableness after the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, an English case which sets out that administrative decisions may be judicially reviewed where an authority has “come to a conclusion so unreasonable that no reasonable authority could ever have come to it” (per Lord Greene at [234]).

above.¹⁴ If the development is likely to have a material impact on the railway, any representations made by Network Rail would be a material consideration.

10.11 Furthermore, the suitability of existing infrastructure will usually fall to be considered in the course of determination of a planning application. Planning authorities would also be required under HSWA 1974 to ensure that decisions of a planning authority, so far as reasonably practicable, do not adversely impact on the safety of those affected by such decisions.¹⁵ On this basis, level crossing safety should be an important factor when determining a planning application.

10.12 If it is decided to grant an application, the grant of planning permission may be “subject to such conditions as [the planning authority] think fit”.¹⁶ Section 41 of the Town and Country Planning (Scotland) Act 1997 gives examples of conditions that may be imposed. Circular 4/1998 sets out Scottish Government policy in respect of planning conditions, stating that they must be:

(1)

necessary;

(2)

relevant to planning;

(3)

relevant to the development to be permitted;

(4)

enforceable;

(5)

precise; and

(6)

reasonable in all other respects.

10.13 In the level crossings context, an important issue is whether a planning condition can be imposed to make planning permission conditional on the closure of a particular crossing. In Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council,¹⁷ it was held that a condition requiring closure of a section of road was not unreasonable. The case noted a distinction between (i) a positive condition attached to planning permission that the applicant should bring about some circumstance and (ii) a negative condition that the development should not commence until an event had occurred. Whilst road closure was not a matter within the control of the applicants, if the development was in the public interest, refusal of plannning permission would be wrong. Moreover, the existence of statutory provision allowing the stopping up of roads, so as to enable development to be carried out,¹⁸ was seen as supporting the argument that a negative condition relating to road closure was contemplated by the legislature.

10.14 One of the most serious problems arises where a development takes place in the vicinity of a level crossing. Where a development is likely to have a material effect

¹⁴ Town and Country Planning (Scotland) Act 1997, s 38(1).

¹⁵ Health and Safety at Work etc Act 1974, s 3(1).

¹⁶ Town and Country Planning (Scotland) Act 1997, s 37(1)(a).

¹⁷ Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 SC (HL) 58.

¹⁸ Town and Country Planning (Scotland) Act 1997, s 202.

in traffic terms in relation to level crossings in the vicinity, a transport plan would be required. In these circumstances the developer would be required to prepare a transport assessment as part of the planning application, which would enable subsequent consultation with the railway operator to be more meaningful.

10.15 Should there be a requirement for a transport plan to be produced in connection with an application for planning permission for a development in the vicinity of a level crossing which is likely to have a material effect on the traffic (in terms of volume and/or composition) that uses the level crossing?