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.

 

 

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