Rural crossings and rights of way

© Copyright Nigel Mykura and licensed for reuse under this Creative Commons Licence.

Nigel Mykura © Copyright Nigel Mykura and licensed for reuse under this Creative Commons Licence.

Background

Level crossing safety featured in one of the first posts on these pages and the issue shows no signs of being fully resolved to everyone’s satisfaction.

Level crossings cover a wide spectrum and range from substantial barriers and flashing lights on main roads to little more than a field gate and a warning sign in the middle of the countryside – even across busy mainlines!

It is the latter type of crossing that this post concerns. Everyone accepts that the best way to reduce the risk of accidents at level crossings is to have fewer of them if at all possible. To this end Network Rail has been pursuing a level crossing closure programme over the past few years. However, one body which has objected to the manner in which some of these closures has been carried out is the Rambler’s Association whose aim is to keep rights of way open. The Association is concerned that remote rural crossings serving footpaths and rights of way have been closed without the provision of viable alternative crossing arrangements. A right of way is thus effectively ‘stopped-up’ by the closure of a path.

In this era of judicial review we are accustomed to the fact that, sooner or later, a non-governmental organization such as a campaigning group will endeavour to seek a judicial pronouncement on an issue. However, it has to be said that the Ramblers Association is not a frequent litigant. The fact that a recent crossing closure case is one of the causes which it chose to pursue is perhaps a measure of how strongly the Association feels about the issue.

The chronology of events

In The Ramblers’ Association v Secretary of State for Environment, Food and Rural Affairs [2017] EWHC 716 (Admin) the Association sought judicial review of an inspector’s decision that a footpath which crossed a railway should not be dedicated as a public highway, despite longstanding usage as such, due to safety concerns raised by Network Rail which feared increased use of the crossing.

The footpath in question (Zulus crossing) crossed the Nottingham to Lincoln line near Burton Joyce in Nottinghamshire; it enabled vehicles using a private right of way to cross the line but had long been used by pedestrians. The background facts to the case are fascinating in the sense that they show how long and laborious the process of securing the adoption of a path as a public right of way can be. The Association first applied to Nottingham County Council (NCC) to have the footpath added to the definitive map, pursuant to section 53(5) of the Wildlife and Countryside Act 1981, on 1 May 2006. The application was made on the basis that there had been at least 20 years uninterrupted use of the path and the crossing.  A considerable amount of evidence was amassed in support of this claim comprising 33 ‘user evidence forms’ from persons claiming to have used the crossing without hindrance over many years (since 1956 in one case).  It took until 5th October 2011, over 5 years since the original application was made, for NCC to reject the application. The Association appealed and the defendant appointed an inspector to hear the matter. The inspector ruled in the claimant’s favour on 21st February 2012 and an Order to add the path to the definitive map was made on 1 February 2013; nearly 7 years since the process first started. That was not, however, an end to the matter due to the intervention Network Rail who were opposed to the creation of any new rights of way across its lines, especially at a time when there was a policy of reducing ‘at grade’ crossing points in the interests of public safety. The recognition of a public right of way across the track at this location could result in an increase in pedestrians using the crossing.  This led to a public inquiry in which the inspector was persuaded by these arguments: see report dated 26 October 2015. It was this decision which formed the basis of the judicial review proceedings.

The legal arguments

Incompatibility 

The main argument focused on section 31(8) of the Highways Acts 1980 which provides that a statutory undertaker may effectively block the creation of a public highway across its land if it would conflict with its duties as a statutory undertaker. During the appeals process Network Rail had been at pains to point out that there never had been a public right of way across the line at that location and adduced the original Act of Parliament which authorized the construction of the line and its books of reference as evidence. The creation of a new public right of way across a railway at a time when there was a policy of reducing such crossings would, it was argued, conflict with its duty to operate a safe network.

A number of old railway cases were cited on the issue of the whether a railway company could in fact dedicate a new right of way ‘across its metals’ in any circumstances. The bulk of the rail system was built in the nineteenth century under powers conferred by private Acts of Parliament. These Acts made provision for existing rights of way and stipulated the creation of level crossings, bridges, underpasses and so forth. Prior to the introduction of the incompatibility provision in highways legislation the issue was framed in terms of whether the creation of a new right of way across the track would be ultra vires the statutory powers under which the railway was built.

Initially the courts took a very narrow view of the extent to which the Act, under which a line was authorized, facilitated the creation of new rights of way across the metals which had not been specifically catered for in the legislation. In Mulliner v Midland Rly Co [1879] 11 Ch D 611  the plaintiff objected to the bricking up of an arch under the railway through which he had hitherto enjoyed a right of access to his premises (the railway company wanted to use the space under the arch for storage). Sir George Jessel MR held that the Act under which the line was authorized  had to be followed to the letter and that no land could be alienated or easements granted for any purpose not directly related to the business of running trains:

It appears to me quite impossible that the railway company can have a right either to sell, grant, or dispose of this land, or of any easement or right of way over it, except for the purposes of their Act, that is to say, with a view to the traffic of their railway. This being my opinion, it would dispose of the Plaintiff’s case on the ground of general law being against him. (at 623)

However, this approach was not followed in other cases involving different types of statutory undertakers where a more flexible approach emerged. This gave rise to another line of authority which suggested that, in the absence of specific provisions in the statute, such rights could be granted provided that they were not ‘incompatible’ with the objectives of the undertaker. In R v Inhabitants of Leake 110 E.R. 863; (1833) 5 B. & Ad. 469 drainage works in the Lincolnshire fens, undertaken by commissioners exercising statutory powers, resulted in an embankment being built up which provided a convenient roadway. After many years of usage as such the locals found themselves liable for maintaining it as a highway. When they were indicted for failing to do so they argued that the creation of a highway was outwith the scope of the powers under which the commissioners had undertaken the drainage works. Park J found that, provided the creation of a highway did not interfere with the objectives of the commissioners, there was no reason why the inadvertent creation of such ancillary infrastructure should be regarded as ultra vires:

If the land were vested by the Act of Parliament in commissioners, so that they were thereby bound to use it for some special purpose, incompatible with its public use as a highway, I should have thought that such trustees would have been incapable in point of law, to make a dedication of it; but if such use by the public be not incompatible with the objects prescribed by the Act, then I think it clear that the commissioners have that power. The mere circumstance of their not being beneficial owners, cannot preclude them from giving the public this right. (at 478).

The Leake approach was followed in A-G ex rel Barnes Urban District Council and London and South Western Railway (1905) 69 JP 110 in which the plaintiff council challenged the decision of the defendant to close a level crossing and replace it with a footbridge. It was feared that those with handcarts and perambulators would be greatly incommoded by the loss of the ability to cross the line on the level (or ‘at grade’). The level crossing in question had been created in 1847 following an agreement made between the Mortlake Vestry, the predecessors in title of the plaintiff Council and the defendant railway company. Farwell J held that Leake was authority for the proposition that “a statutory company can dedicate a footway so long as its user is not inconsistent with the objects and obligations of the company.” The extent to which the dedication of a right of way over the crossing would interfere with the running of the railway was a matter of fact to be determined by the court. In this respect the judge found that the safety concerns raised by the defendant could not be justified. The approach was later endorsed by the Court of Appeal in South Eastern Railway Company v Warr (1923) 21 LGR 669.

The common law based ultra vires argument relating to incompatibility was replaced by a new statutory test under section 31 of the National Parks and Access to the Countryside Act 1949, the precursor of section 8 of the Highways Act 1980. The first major case to consider the new statutory provision was British Transport Commission v Westmorland County Council [1958] AC 126 in which the County Council sought to establish that a right of way existed over a railway footbridge. The bridge in question had been built pursuant to the private Act of 1845 under which the construction of the line had been authorized. However, at the time it served a private as opposed to a public right of way. Nevertheless, the County Council contended that a prescriptive right had been established by 20 years uninterrupted use. The Quarter sessions, following an application made by the British Transport Commission (BTC) under section 31 of the 1949 Act, declined to rule that no public right of way existed over the bridge. BTC sort judicial review of that decision and the matter progressed all the way to the House of Lords.

Viscount Simmonds held that the more flexible test of incompatibility, developed in cases such as Leake, was still good law and had been absorbed into the new statutory provision. However, attention focused on the relevant point in time for determining which material factors ought to be considered in making the determination of compatibility or otherwise. His Lordship rejected an argument made by BTC to the effect that the tribunal ought to consider future factors which might come into play, no matter how remote:

[T]o give to incompatibility such an extended meaning is in effect to reduce the principle to a nullity. For a jury, invited to say that in no conceivable circumstances and at no distance of time could an event possibly happen, could only fold their hands and reply that it was not for them to prophesy what an inscrutable Providence might in all the years to come disclose. (at 144).

Thus the court or tribunal tasked with considering the incompatibility issue should confine itself to foreseeable changes in circumstances.

As will be seen below, this finding proved relevant to a complex argument made in the Ramblers Association case to the effect that past factors ought to predominate.

Point in time at which material factors should be considered

The foregoing case law made it clear that it was within the gift of rail operators to dedicate a right of way across a line provided that this would not interfere with their ability to run the line in a safe and efficient manner. However, in case of dispute, it would be for court (and/or the inquiry following the inclusion of the issue in Highways Legislation) to decide, as a matter of fact, whether the concerns raised by the railway operator were justifiable. However, it was argued that there was still some scope for argument concerning the point in time at which material factors should be considered.

In the Ramblers Association case, counsel for the claimants (Mr Laurence), argued that, under the common law, the act of dedicating a right of way on the basis of 20 years prescription completes an incohate right which must be deemed to have always existed. In support of this argument he cited the following passage from the judgment of Lightman J in Oxfordshire County Council v Oxforshire City Council [2004] Ch 253 at [98]:-

The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption,if it can be made…

It was argued that on this basis the dedication is deemed to occur at the start of the 20 year prescription period. If the aim of the incompatibility test is to stop a right of way from being dedicated in the first place, then the tribunal considering the matter must look at those factors which prevailed at the start of the prescription period rather than current factors. Otherwise there would be a mismatch between the assessment of whether dedication is possible and the assessment of the evidence as to whether there was sufficient evidence of prescriptive use.

Despite this mismatch, adopting what appears to be a ‘mischief rule’ approach to statutory interpretation, Dove J in the Ramblers case held that Westmoreland was binding authority for the proposition that the determination must be made according to current considerations rather than past or purely hypothetical future concerns. Health and safety issues must constitute major reasons for not dedicating a right of way across a railway; in which case it would be entirely nonsensical to consider factors which were at least 20 years out of date. Citing Lord Radcliffe in Westmoreland Dove J held that the test of incompatibility is ‘essentially a pragmatic one’ and that:

The consideration of whether or not the recognition of the right of way  would be incompatible with the statutory undertaker’s duties is in large part going to be a forward-looking exercise. It is an examination of the position at the time when the order is being considered, but against facts and forecasts which consider the question not simply at the moment, but also looking forward to consider whether on the balance of probabilities it is likely that in future the statutory undertaker’s statutory duties would be compromised and there would be incompatibility between the operator’s statutory objects and the existence of the way. The fact that it is a forward-looking exercise would render it peculiar for that test to be applied at some point in the past. (at [37])

Thus, present, rather than future or past circumstances should be the prevailing considerations, allowing some scope for foreseeable future developments to be assessed.

Turning to the evidence itself of projected increased pedestrian usage of the crossing and subsequent increased risk of accidents, following its dedication as a right of way, Dove J could find no reason to impugn the inspector’s interpretation of the evidence on irrationality grounds.

Illegality

The other main legal argument focused on the proposition that an easement cannot arise from conduct which is rendered illegal by legislation at the material time. This was expressed by Dillon LJ in Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 in the following terms: ‘an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute.’  The Inspector found that anyone who had used the crossing (other than those exercising their private right of vehicular access) during the alleged prescription period had been guilty of trespass attracting criminal liability under section 55 of the British Transport Commission Act 1949.

There were two strands to the argument on this issue. Firstly, it was contended that the principle does not apply where the servient owner has the power to dispense with the illegality by granting the easement (described as a ‘dispensing power’). Secondly, it was argued that the use of the crossing by persons other than authorized users did not constitute a criminal trespass in any case because the signage at the crossing was inadequate to give rise to liability under the 1949 Act. Dove J dealt with the latter point first.

Section 55(3) of the 1949 Act provides that criminal liability will only arise if persons on or near the railway have been given ‘public warning’ which has been ‘clearly exhibited’ at an appropriate location. Thus, attention was focused on the adequacy of warning notices displayed in the vicinity of the crossing. If the notices were adequate the argument that using the crossing constituted criminal trespass would fall away. The Rambler’s Association argued that a variety of signs had been displayed at the crossing over the years but none had expressly referred to trespass and criminal liability. Thus, they were incapable of establishing criminal liability under s 55 of the 1949 Act. However, Dove J rejected the notion that such warning signs would have to expressly use these terms in order to establish criminal liability:-

I do not consider that it was necessary for the notice to specifically use the words “trespass”, in circumstances where the obvious substance of the notice was to make clear that being present on the railway lines was prohibited (or not authorized) which is clearly the meaning of trespass as it is applied in section 55. The notice made clear that passing onto the railway lines was prohibited. Had it used the word “trespass” it would not have in any way changed the substance of the contents of the notice. As such it satisfied the requirements of section 55(3).

The judge also rejected the argument that Network Rail had a ‘dispensing power’ to effectively retrospectively legitimize the use of the crossing by granting the easement. Dove J held that this argument returned the case to the central point that Network Rail did not have an unfettered power to grant easements or dedicate rights of way across the metals. Given that it had already been established that dedicating a right of way was incompatible with its statutory duties, it followed that a power to dispense with criminal liability so as to facilitate the creation of a right of way must also be caught by the incompatibility test.

The ‘cul-de-sac’ issue

The final argument concerned whether the inspector should have found that the paths leading up to the crossing from either side of the line should have been dedicated as rights of way, notwithstanding the fact that they would have formed two cul-de-sacs leading to nowhere because they could not be connected up across the line. Presumably, the motivation for this argument was that it would put pressure on Network Rail to complete the link. The case law indicated that a cul-de-sac could serve as a right of way if it provided access to ‘some kind of attraction at the far end’ which the public are entitled to visit such as a park or monument: see Oxfordshire County Council case (above, at [101]). Dove J, at [83], held that a railway could not fall within this category and the argument was rejected.

Comments

It is perhaps surprising that an isolated rural crossing in Nottinghamshire, consisting of no more than a couple of field gates and some weathered warning signs, can give rise to several pages of dense legal argument. However, such complexities are inevitable when statutory powers collide with ancient common law principles. The statutes which created the railway system in the nineteenth century slashed across the common law in the same manner that the lines which they authorized carved through the English countryside. A number of ragged edges were left, the effects of which can still be seen today as demonstrated by this case. Property law purists will doubtless be deeply vexed by the manner in which the relevant statutory provisions interfered with well settled common law principles relating to prescriptive easements. Contemporary safety concerns regarding level crossings were effectively projected back in time so as to prevent the right of way from coming into being. It is not surprising that the judge felt compelled to resort to pragmatism; although this may have resulted in doctrinal purity being sacrificed on the alter of public safety.

The case must also be viewed in the wider debate regarding level crossing safety, the adequacy of the legislative regime and the closure programme. When the Law Commission as asked to look at the issue they may have been forgiven for thinking that it would be a concise, well-defined project leading to a concise set of conclusions. However, due to the messy accumulation of statutes dating back to the dawn of the railway age, the many restructurings of the industry and the splitting of functions between different regulators, the Commission found it to be a fiendishly difficult task resulting in a long and complex report: see Law Commission Report No 339, Scottish Law Commission Report No 234. One of the most complex issues concerned the weaving of rights of way into the matrix. Given the complexities which one insignificant crossing can generate, this is hardly surprising.

Despite theses difficulties the Commission was able to formulate draft regulations setting out new procedures for modifying or removing level crossings; however, despite an initial flurry of enthusiasm for legislative reform, the Government decided not to act upon this and instead settled upon ‘administrative measures’: see letter from Jo Johnson (then Rail Minister) dated 25 May 2017.

Meanwhile the ORR has maintained the pressure on Network Rail to close level crossings and certainly not to create any new ones. The policy has widespread backing; indeed, one of the points made by Network Rail in the case at hand was that the ORR would not sanction the dedication of a new public right of way across an at grade crossing – see ORR policy guidance on new level crossings. Where a right of way already exists, under the current system closing a crossing which has an existing right of way over it may not always be a straightforward matter. Where footpaths and bridleways are concerned the Highways Authority has the power to ‘make a rail crossing extinguishment order’ under section 118A of the Highways Acts 1980. If the Highway Authority cannot be persuaded to use this power, Network Rail must seek a ministerial order under the Transport and Works Act 1992. This can be a time-consuming a complex procedure involving a public inquiry in some cases. A recent instructive example includes an order for the closure of six pedestrian crossings on the Felixstowe branch line as part of an improvement programme.

Against this background it is hardly surprising that Network Rail is prepared to fight very hard to prevent new rights of way from coming into existence; although one can also understand the Rambler’s Association’s desire to keep rights of way open and to formally dedicate those which have long standing usage. However, where railways are concerned, any court would find it difficult to resist arguments based largely on safety grounds.

 

 

Network Rail Loses Japanese Knotweed Appeal

Nigel Mykura [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

The Court of Appeal has delivered its judgment in the case of Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514 concerning the spread of Japanese Knotweed from the defendant’s land. The full facts are set out in my blog entry relating to the County Court judgment.

The Court of Appeal upheld the decision of His Honour Judge Grubb in the Cardiff County Court to the extent that Network Rail was liable in nuisance for the spread of the plant; however, it strongly disagreed with much of the reasoning applied by the lower court. The decision raises some important doctrinal issues in the tort of nuisance which shall be dealt with in turn.

The encroachment cases

The County Court held that the encroachment cases (which mainly concern tree roots and overhanging branches) constituted a distinct branch (pun not intended!) of nuisance. The case of Delaware Mansions v Westminster City Council  [2002] 1 AC 321, [2001] UKHL 55  was used as authority for the proposition that physical damage to property is a necessary ingredient of the tort in this context. The County Court was fortified in its conclusions by some scholarly arguments to the effect that this type of claim would originally have been brought under a medieval form of action known as action on the case which necessitated the existence of tangible harm. This ingredient was lacking in the case at hand in that, although the rhizomes had infiltrated the foundations of the property they had not done any damage.

The Court of Appeal concluded that the analysis of the County Court was wrong on this point. Firstly, it was held that it was unwise to fetter the development of the common law by adhering to medieval categories in an overly dogmatic manner. Damage should be regarded as an elastic concept in nuisance and the encroachment cases should not be interpreted as precluding harm which fell short of actual injury to the fabric of the property. Nuisance is about the protection of property rights and, in particular, the use and enjoyment of the land. The presence of such an invasive weed and the knowledge of the harm which it may cause must clearly have a detrimental effect on the use and enjoyment of the property. In any case, there were clear grounds for arguing that the presence of the rhizomes did in fact amount to physical damage in that they placed a burden on the claimants and required them to take remedial measures. There was authority for the proposition that the dirtying or contamination of property can be regarded as physical damage, even though the fabric of the property is not affected in the long term, as it has to be cleaned in order to render it fully usable once more. See Court of Appeal judgment in Hunter v Canary Wharf [1996] 2 W.L.R. 348 concerning the deposit of dust requiring professional cleaning and Blue Circle Industries v Ministry of Defence [1998] 3 All ER 385 concerning low level nuclear contamination requiring removal at considerable expense.

Depreciation in market value

Although the County Court rejected the notion that the harm in this case fell within the encroachment category, it accepted the argument that the proximity of the Knotweed constituted a nuisance in that it had a detrimental effect on the value of the property. Although the Court of Appeal agreed with the outcome on this point it disagreed with the reasoning. In short, it was held that the County Court had failed to properly link the financial loss with any interference with property rights. Instead, the CC had reached the conclusion that the  mere presence of an undesirable element, which has a detrimental effect on the value of property, is actionable. The Court of Appeal, on the other hand, held that this would be a type of pure economic loss which is not grounded in any interference with property rights. The financial loss must flow from some interference with the use and enjoyment of property. For the aforementioned reasons, the presence of the Knotweed clearly interfered with the use and enjoyment of the properties and was thus not pure economic loss in that sense.

The purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset. Its purpose is to protect the owner of land (or a person entitled to exclusive possession) in their use and enjoyment of the land as such as a facet of the right of ownership or right to exclusive possession. The decision of the Recorder in the present case extends the tort of nuisance to a claim for pure economic loss. Counsel for the claimants did not identify any case in which a similar decision was reached or, more generally, where the amenity of a property has been held, for the purposes of actionable private nuisance, to include the right to realise or otherwise deploy the value of the property in the financial interests of the owner. Contrary to the view of the Recorder, that would not be an incremental development of the common law by way of analogy but a radical reformulation of the purpose and scope of the tort. (per Etherton MR at [48].

This aspect of the decision serves to clarify what is meant by the term pure economic loss in this context. A loss is purely economic loss if the claimant only has a financial interest in the affected property. Ones interest in the home is not purely a financial interest in that one depends upon it for shelter and general wellbeing. This raises the interesting issue of whether claims brought by property developers and speculators would be dismissed on the grounds that their interest in the matter was purely economic.

Comments

From a doctrinal perspective the decision is important in that it seeks to break down some of the categories that have arisen between various types of nuisance. The Court of Appeal clearly felt that this was an area where the medieval ghosts were being allowed to rattle their chains. It also seeks to clarify what is meant by harm in nuisance and underscores the need to adopt a flexible approach. Harm in nuisance is inextricably connected with the protection of certain types of interest in land and it can be misleading to import concepts from other branches of tort such as the concept of pure economic loss. This has a specific meaning in negligence which may not equate with the concept of harm in nuisance.

In any event, it has now been clearly established that the presence of Japanese knotweed may give rise to a claim in damages for diminution in market value and the costs of treatment irrespective of any damage to the actual fabric of the property. This has serious ramifications for Network Rail and all other major property owners.

Rail Franchises, Competition and Public Service

The UK rail network has undergone a series of massive restructuring exercises throughout its history. Having been run into the ground during the First World War the myriad Victorian era companies were rationalised into the ‘Big Four’ under the Railways Act 1921 but were still set up as joint stock public companies. After a few halcyon inter-war years synonymous with speed record attempts and evocatively named express services ,such as the Flying Scotsman and the Cornish Riviera, the railways were again run into the ground in the Second World War. Post-war nationalisation was inevitable and British Railways (latterly British Rail) came into being under the Transport Act 1947. There then followed nearly fifty years of a much maligned nationalised system, often ridiculed as the ultimate example of an inefficient, strike prone, state owned leviathan synonymous with poor customer service –  as often epitomised by the British Rail sandwich! In fact it is now widely accepted that much of this criticism was unfair and, after a shaky first few years, the organisation had developed into one of the world’s more efficient networks by the end of its existence. Nevertheless, having survived the drive for privatisation throughout the Thatcher Government of the 1980s, it finally succumbed under the Major administration of the early 90s and the passing of the Railways Act 1993.

Those who dreamed of a return to the halcyon days of the 1930s and the resurrection of something along the lines of the Big Four were to be sorely disappointed. It was deemed impractical to recreate the original privately owned system whereby railway companies owned the track, rolling stock and other infrastructure. The track and infrastructure were separated from the provision of services and placed in the hands of a state owned company known as Railtrack (the descendant of which is Network Rail) whilst leasing companies acquired the rolling stock. Market conditions were created by enabling companies to bid for franchises in order to win the opportunity to use the infrastructure and rolling stock to operate services. Since then the franchising system has rarely been out of he news with much adverse comment focused on the bidding process (especially regarding miscalculations in how much to bid), fragmentation of the system, lack of seating capacity on key routes, fare structures and a failure to generate sufficient competition. Moreover there is the insoluble conundrum of, if it is a bad thing for railway services to be operated by the British state, why is it acceptable for overseas state owned companies to bid for services? The debate has finally entered the mainstream quality legal literature with an excellent article by Tony Prosser and Luke Butler in the Modern Law Review.

Whilst much of the article adopts an economic perspective it does examine the legal framework, starting with the Railways Act 1993, which allowed the current system to develop. Their central thesis is that successive governments have never fully trusted the market to deliver and have not been able to resist tinkering and meddling with the system. Franchises now have so many strings attached, in terms of minimum service requirements and so forth, the operator is effectively straitjacketed and has limited scope to make commercial decisions. Moreover, the state has maintained much of the commercial risk in many cases which was antipathetic to the original notion of franchising. They conclude that the franchising system has been used as a means of regulating the industry in very prescriptive and top-down manner which, ironically, has resulted in far less commercial freedom than that enjoyed by the state owned British Rail. As they state in their conclusion:

‘Flexible use of franchise contracts which gives operators space for responsiveness and innovation has simply not proved possible. Instead there has been a crude form of regulation characterised by the highly complex and over-prescriptive franchise agreements, coupled with ambiguity on the centrally important issue of risk transfer.’

The upshot of this is that the distinction between ‘franchises’ and ‘concessions’ has been blurred in a most unsatisfactory manner which very often leaves all parties with the worst of all worlds. In a true concession arrangement the revenue risk remains with the public entity providing the concession which retains responsibility for setting fares and so on. The agreement will specify how much the concessionaire must hand over to the public body and how this is to be calculated (eg whether a fixed amount or a percentage). Such arrangements are possible under section 23 of the 1993 Act which enables the Secretary of State to exempt the arrangement from normal franchising requirements. The London Overground and Merseyrail contracts are operated on this basis as will be the new Crossrail service – or to give it its new name, the Elizabeth Line. Prosser and Butler argue that there is much to be said for this approach, despite the relative lack of commercial freedom when compared to a pure franchise arrangement of the type originally envisaged. Aside from the aforementioned examples in the UK, it is a model which has been widely adopted in other European countries. The clear delineation of risk and responsibilities tends to be conducive to more stable long term relationships between the concessionaires and their clients and from this flows greater trust. From this in turn flows a greater willingness to afford concessionaires more discretion in terms of how they operate services. Transport for London as extolled the Overground Service as a paradigmatic example of the benefits of this type of relationship.

A somewhat less complicated argument focuses on the fact that, although there may be competition in terms of the right to provide services, from the rail travellers perspective there is limited competition at the point of delivery. Open Access Agreements have never really taken off, which means that passengers rarely have a choice as to which company to use on a particular journey.

Overall the articles shows clearly how, especially in the complex and fraught world of public/private partnerships, it is difficult to legislate for every eventuality and new systems tend to develop a life of their own. The system which has now emerged, whilst it has evolved within the framework of the 1993 Act and relevant EU legislation, may not equate with what was originally intended. As Prosser and Butler also acknowledge, nationalisation of the industry is also back on the agenda of the Labour Party although, in common with many others, they doubt the practicalities of joining all the bits back together again.

All the Queen’s Horses: HS2 and Statutory Authority

On a dark December evening in 1827 a sporting gentleman, who chronicled his fox-hunting adventures under the name of Nimrod (Charles James Apperley), was riding on horseback along the Yarm turnpike. Out of the darkness emerged a terrifying apparition which he later described as a ‘moving hell’, a clanking, hissing iron monster exulting ‘blazing fires of blue and yellow hues’. This turned out to be a locomotive steam engine grinding its way along the Stockton and Darlington Railway. Nimrod’s horse was terrified and it took all his horsemanship to maintain control. He wondered at the fact that such a nuisance could be tolerated so close to a turnpike road: See Nimrod’s Hunting Tours – Interspersed with Characteristic Sayings and Doings of Sporting Men (London: Pittman, 1835).

John Dobbin’s famous painting of the opening of the Stockton and Darlington Railway in 1825.

Nimrod was not alone, since the railway opened two years earlier spooked horses on the turnpike had been a common occurrence. Carriages and carts were overturned and riders on horseback were thrown or bolted off with. Soon after Nimrod’s experience on the Yarm Turnpike the directors and enginemen of the Stockton and Darlington Railway were indicted in Public Nuisance. The litigation resulted in the authority of R v Pease (1832) 4 B & Ad 30, 110 ER 366. which established a very important legal principle which relieved the defendant’s of liability. The Stockton and Darlington Railway was authorised by an Act of Parliament and this set the template for the multitude of schemes that followed. The court held that the railway company could not be liable for harms which were the necessary consequence of exercising their statutory powers. It so happens that Francis Mewburn, the solicitor to the promoters of the Stockton and Darlington, had had the good sense to insert a clause into a revised Bill which expressly authorised the use of steam locomotion. This followed a famous meeting between Edward Pease and George Stevenson in which the latter had persuaded the Quaker business man to use steam power rather than horses. The existence of the section enabled the court to find that the spooking of horses on the turnpike was an unfortunate but natural consequence of using the statutory power to operate steam locomotives. The defence went on to play a crucial role in the famous ‘railway sparks’ cases where it effectively afforded the railway companies an immunity in respect of a large proportion of the extensive fire damage caused by sparks from passing steam locomotives.

The second Stockton and Darlington Act which allowed for modifications to the route and the use of steam locomotion.

The first phase of HS2 between London Euston and Birmingham is set to open around the bicentenary of the opening of the Stockton and Darlington Railway.  In 2011 the Times reported that Her Majesty the Queen was alleged to have expressed concern at the potential impact of high speed trains whizzing past at speeds of up to 250mph on horses kept at Stoneleigh. Such concerns were also expressed by a number of equestrians who petitioned against the HS2 Bill at the select committee stage. This brings us neatly full circle; there may be a world of difference between the slow, clanking iron monsters on the Stockton and Darlington and the streamlined, gleaming state of the art electric trains which will operate on HS2. But horses are still timid animals likely to be spooked by something new and invasive in their environment. Another constant feature is that the Act of Parliament is still the instrument of choice for authorising major rail projects; although now the hybrid Bill procedure is used as opposed to the private Bill procedure. Thus, the High Speed Rail (London West – Midlands) Act 2017 must inevitably establish a statutory authority defence in respect of many of the harms arising from the construction and operation of the line.

This is the backdrop to a new article published by Mark Laurence Wilde (who may have something to do with this blog) in Legal Studies. In the article Wilde considers to what extent the defence of statutory authority might shelter the operator from liability in respect of nuisances caused by the operation of High Speed trains. Whilst high speed trains are unlikely to set fire to crops and farm buildings, as their much slower steam powered ancestors were prone to do, they have the potential to cause noise, vibration and, indeed, spooked horses. Wilde focuses on a sometimes overlooked aspect of the statutory defence, namely, the ‘inevitably of harm’ criterion. In short the defence only operates in respect of harms which could not have been avoided. The HS2 project has undergone a vast amount of planning and design and an environmental impact assessment running to 50,000 pages. Thus, there is unlikely to have been a systematic failure to anticipate harms and mitigate them or at least offer compensation where they cannot be avoided. However, Wilde argues that it is still possible that the impact on certain individuals may have been overlooked. For example, not all affected parties had the wherewithal to petition against the Bill and not all who did so would have gained satisfaction. Moreover, certain individuals who may suffer nuisances arising from the operation of the line may fall outside the parameters of the HS2 compensation schemes. Wilde asks whether such individuals could call upon the common law to come to their aid. Litigants would have to show that the harm was not inevitable – on the face of it this sounds like a very difficult criterion to satisfy given the amount of planning and design that has gone into HS2. Nevertheless, it may yet be open to the owner of a riding stable to argue, for example, that additional screening measures ought to have been adopted at a specific location due to the effect of sudden train movements and noise on horses. In fact, such a dispute has already arisen in respect of a much smaller scale project involving a scaling up of passenger services and increases in trains speeds as part of the upgrade of a conventional line: see noise, horses and the Evergreen 3 project.

Wilde concludes that affording the common law the space to intervene in such matters allows it to perform its traditional function of filling the gaps left by legislative procedures and ‘fine-tuning’ the planners’ decisions on the ground. However, this would require the courts to adopt a bold approach to the issue of whether a harm was inevitable. Recent case law developments suggest that they might be more prone to intervene where they perceive that an individual has been left uncompensated by the planning system.

Japanese Knotweed and Network Rail

Japanese Knoweed takes over a flower border at Dorchester South station. Photo by Nigel Mykura

A knotty problem

Railway embankments and cuttings play host to a vast array of flora including many ornamental plants which have long since escaped from the confines of neighbouring gardens. In summer they are festooned with the purple cones of buddleia flowers providing splashes of colour for the benefit of weary commuters gazing idly through the dusty windows of urban stopping trains. A far less welcome inhabitant of railway land, however, is the notorious Japanese Knotweed (Fallopia Japonica) which was first commercialized as an ornamental  plant in this country in the mid-nineteenth century. It quickly escaped the confines of gardens and has steadily spread ever since.

The species is incredibly invasive and it spreads by sending out roots and rhizomes which spread deep in the soil before sending up shoots which have been reported as having the capacity to smash through concrete and tarmac, although some have argued that the threat has been exaggerated. Whatever the extent of the risk there is no doubt that the mere presence of the plant causes a serious blight problem for property.

Railway embankments and cuttings are not cleared of excessive vegetation as regularly as they used to be. At one time regular clearances were necessary to reduce the risk of lineside fires caused by stray sparks from passing steam trains. Such fires often spread to neighbouring property and resulted in vast amounts of litigation. It is possible that, after the last scheduled steam service departed on 11 August 1968, officials in British Railways may have expressed relief at the fact that there would no longer be any need to expend so much time and effort in clearing vegetation from the lineside. Anyone expressing such sentiments could not have anticipated that the change in policy may have contributed to the replacement of railway sparks with a new peril of a more organic nature.

Williams v Network Rail Infrastructure Ltd 

Japanese Knotweed has inevitably spread from railway land to neighbouring property and, somewhere in the offices of Network Rail, it is reasonable to assume that there must be an increasingly fat file of complaints. Two such complainants are Robin Waistell and Stephen Williams, both of whom own neighbouring properties in the Welsh town of Maesteg in close proximity to an embankment overrun with the plant. It was estimated that the plant established itself there about 50 years ago but had been contained until more recent times.  The complainants met resistance when they first sought compensation from Network Rail regarding the incursion of the plant on their land. They alleged that it had infiltrated the foundations of their bungalows and slashed the value of their properties. The media reported that, hitherto, Network Rail had met claims out of court but, due to concern at the steadily growing number of complaints and the amount that it was having to pay out, decided to make a stand in order to establish that it was not liable as a matter of law: see MailOnline. Thus messrs Waistell and Williams found themselves locking horns with Network Rail in litigation: Williams v Network Rail Infrastructure Ltd (also know as Waistell v Network Rail Infrastructure Ltd) [2017] UK CC (2 February 2017)  (unreported). 

Damage to property?

The matter was tried at the Cardiff County Court, before His Honour Judge Grubb, where argument turned upon two strands of the law of private nuisance. The first strand focused on the encroachment cases as exemplified by the cases of Lemmon v Webb [1894] 3 Ch 1 and Delaware Mansions v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321, both of which were cited in argument. On this issue it was held that actual damage to property was needed in order to establish liability on this ground. The judge did not accept that the foundations had actually been damaged and the mere encroachment of the roots and rhizomes into the foundations would not suffice.

Loss of amenity

The second strand of nuisance law focused on loss of amenity value caused by proximity to some undesirable land use. Here it was noted that in the past damages had been awarded in nuisance in respect of the deleterious effects of brothels and sex shops on the amenity value of neighbouring properties. This approach circumvented the need to show actual physical damage to the fabric of the property. The claimants argument on this basis was successful, however, it was also necessary to show the harm was foreseeable and in this respect the defendants were deemed to have had constructive knowledge of a document produced by the Royal Institute of Chartered Surveyors and the Property Care Association which set out guidance on the management of the Knotweed problem.

Continuing the nuisance

There was a final complication in this case stemming from the fact that Network Rail had not set out to cultivate the plant or consciously brought it onto its land. However, once an undesirable element establishes itself on land there is a clear duty to do something about it else one is deemed to have adopted the nuisance: see Leakey v National Trust [1980] QB 485. In this respect an element of fault is inserted into the equation and nuisance operates rather more like negligence than a tort of strict liability. Nevertheless, the judge was persuaded that the defendant had failed to act as a reasonable land owner and take sufficient steps to remove the Knotweed. There had been some inadequate and sporadic spraying with herbicide which in no way sufficed to discharge the duty.

Damages were awarded to both claimants in respect of the diminution in the market value of their properties and the cost of a treatment package and an associated insurance backed guarantee.

This was not the end of the story however and the matter has been appealed to the Court of Appeal which is due to hear the case in the New Year. The grounds of appeal are not clear from material readily available in the public domain although it would be difficult to contest the notion that Knotweed blights property even where no physical damage is caused. One can surmise that attention is likely to focus on the assertion that the defendant could have foreseen the problem and that it failed to take reasonable steps to abate it.

The case seems to have attracted a lot of media attention and the implications for property owners, mortgage providers and the insurance industry are clear. See, for example, The Telegraph (Money and Banking).