The High Speed Rail (London – West Midlands) Act 2017

A Eurostar train on the Channel Tunnel Rail link in Kent (or HS1) – soon to be joined by HS2.
Photo by Kenneth Yarham.

On the 23 February the HS2 Bill received the Royal Assent and was enacted as the High Speed Rail (London – West Midlands Act (2017) (hereinafter referred to as the HS2 (Phase 1) Act). Thus, HS2 Ltd now has the requisite powers to commence construction of the first phase of the project from London to Birmingham. In the House of Commons the Secretary of State for Transport, Chris Grayling, announced that site clearance, establishment of depots, archaeological work and demolition work would start within weeks with major earthworks and so forth commencing by the end of the year: see Hansard vol 621 cols 1127-28 23 February 2017.

Schematic diagram showing what the UK’s high speed rail network will look like following completion of phases 1 and 2.
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The Bill endured a gruelling passage through both Houses of Parliament thanks to the length and complexities of the hybrid Bill procedure. The multitude of railway projects in the nineteenth century were authorised by private Bills as they were promoted by private enterprise. As HS2 is essentially a Government sponsored project a private Bill would clearly have been an inappropriate mechanism, However, a public Bill would also have been inappropriate as, although the project is a nationally significant infrastructure project, it has particular implications for specific sections of society, principally for those who live in the path or in close proximity to the route. Thus, in common with all other major rail infrastructure projects of recent years such as Crossrail and the Channel Tunnel Rail Link (HS1), HS2 has been authorised by way of the hybrid Bill procedure. The process is lengthy and cumbersome due to the amalgamation of private and public Bill elements. The initial stages of the Bill follow private Bill procedure in that, after second reading in each House, a select committee is instigated. The purpose of the select committee is to hear petitions from those adversely affected by the scheme and to propose additional mitigation measures. Crucially, it may not question the need for the scheme as this decision has already been taken by Parliament at second reading. Historically, petitioning against a Bill has been a somewhat arcane art usually necessitating employment of expensive Parliamentary agents. As regards HS2 efforts were made to demystify the process and a ‘petitioning kit’ was made available online for the benefit of would-be petitioners. Arguably, these efforts met with some success in that large number of petitions were submitted and a substantial number of petitioners appeared in person before the select committees in both the Commons and the Lords, although, as will be seen below, some argue that there is still much work to be done in terms of opening up and simplifying the process.

Once the select committee has completed its work and published its findings the process becomes more akin to public Bill procedure in that the Bill must be considered by the Public Bills Committee in the Commons (Grand Committee in the Lords) before progressing to report stage and then third reading in each House.

Aside from the complexities of the legislative procedure, the HS2 Bill had to accommodate the exigencies of EU law and the need to conduct an environmental assessment. This necessitated the completion of an environmental statement running to some 50,000 pages. However, this failed to satisfy a number of objectors to the scheme who launched a judicial review in 2013 claiming that the original policy commitment to build HS2 should have triggered a strategic environmental assessment (SEA) and that Parliamentary procedures for authorising such projects were not commensurate with environmental assessment in any case. The Supreme Court rejected the claim for reasons which are set out in more detail in my blog post of 22 January 2014. Later that year the Court of Appeal rejected similar arguments pertaining to safeguarding directions designed to protect the route from conflicting development – see my post of 4 September 2014.

A ‘Stop HS2’ banner outside West Ruislip station which will be near the northern portal of the West London Tunnel.
Photo by mattbuck

Now that phase 1 of the scheme has been authorized and the project enters the ‘active phase’ Parliament must gear itself up to undergoing the entire process again at least twice more (in the long term possibly a third time if high speed rail is continued all the way to Scotland) in order to authorize phases 2a and 2b of the scheme to Manchester and Leeds. Added to which is the fact that the Crossrail 2 Bill is in the offing. Those who sat on the Parliamentary Committees clearly bear the scars of the process and the select committees in both Houses called for a review of hybrid Bill procedure. The House of Lords Select Committee in its Special Report of Session commented that:-

‘Time and again during our proceedings, we encountered difficulties with the current procedure. It became abundantly clear to us that petitioners found it cryptic and complex to understand, and labyrinthine to navigate.’

MPs with constituencies along the route complained that their constituents found the petitioning process arcane and intimidating. Moreover, locus standi rules meant that there was only a limited amount they could do in terms of guiding them through the process and making representations on their behalf – see debate which took place at ‘ping-pong’ (consideration of Lords amendments by the House of Commons): Hansard vol 621 cols 816-36 20 Feb 2017. In an interview with the Financial Times a campaign manager for Stop HS2 complained that large landowners, who could afford barristers, got more out of the petitioning process than ordinary members of the public and conservation groups etc. In the light of such concerns it seems that a review of hybrid Bill procedure is already underway.

There is certainly more that could be done in terms of rendering the process more user friendly from the perspective of the petitioner. However, given the need to ensure that enough people are given their say in the interests of democratic accountability, it is difficult to see how major reductions in the time and complexity of proceedings could be attained. There can be no doubt that many lessons will have been learned from the HS2 (Phase 1) Act and recent experience gained from the Crossrail Act 2008. In fact, it is noteworthy that, despite the fact that it is a much larger project and that there was a far greater number of petitions to consider, the HS2 (Phase 1) Bill managed to navigate its way through the legislative process in a very similar timeframe to the Crossrail Bill. Thus, there can be no doubt that, by the time they have endured three High Speed Rail Bills and a Crossrail 2  Bill, the Select Committees will have been honed into well oiled machines, not unlike the select committees charged with scrutinising the myriad private Bills under which the railways were authorised in the Victorian era. Nevertheless, there may be scope for reducing duplication by, for example, establishing some form of special joint select committee rather than allowing petitioning in both Houses. It remains to be seen what steps, if any will be taken.

At this point mention should also be made of the Planning Act 2008 which was designed to expedite planning procedures for major infrastructure projects in the wake of the notorious Heathrow Terminal 5 public inquiry which sat  for 524 days and contributed to a planning application process which took 8 years. Strictly speaking, any major rail project ought to be authorised under the 2008 Act but the HS2 (Phase 1) Act expressly exempts the project from the ambit of that Act. It seems that, where long linear projects are concerned, the hybrid Bill is still the most practical means of avoiding duplication and bringing all the requisite powers under one roof.

We await the introduction of Bills for phases 2a and 2b, and indeed Crossrail 2, with anticipation with a view to ascertaining to what extent, if at all, any of the aforementioned concerns have been addressed.

 

 

Ordsall Chord litigation

Work is on the new Ordsall Chord has been continuing apace following the resolution, in the Court of Appeal, of a long running legal dispute regarding the impact of the scheme on a significant part of the country’s railway heritage: see Whitby v Secretary of State for Transport and others [2016] EWCA Civ 444; [2016] J.P.L. 980.

The Ordsall Chord will link together the two main rail routes running through Manchester. For the first time a link will exist between all three of the main stations in Manchester and will enable Manchester Victoria to alleviate some of the pressure on Manchester Piccadilly. In addition it will bring about massive increases in flexibility in terms of services and timetables and provide a vital component of the ‘Northern hub‘ and the longer term project to increase connectivity and efficiency in the region’so railways. At a high political level it forms a cog in the Northern Powerhouse strategy a vital element of which is improvement in connectivity between the great cities of the North.

How the Ordsall Chord fits into the Northern Hub project. Diagram by Crookesmoor

How the Ordsall Chord fits into the Northern Hub project.
Image by Crookesmoor

However, perhaps somewhat ironically, this 21st rail project risks despoiling its own heritage in that it will damage or spoil the setting of a number of grade 1 listed buildings associated with the Liverpool and Manchester Railway. The Liverpool and Manchester was engineered by George Stephenson and was the world’s first purpose built passenger carrying intercity railway. The buildings include the original Liverpool Road Station, the Station Master’s House, various bridges and viaducts, the ‘Power House’ and certain  other buildings. Some of these buildings are occupied by the Museum of Science and Industry (MOSI).

Liverpool Road Station in Manchester. Public Domain.

Liverpool Road Station in Manchester.
Public Domain.

The project was authorized by way of an order made under the Transport And Works Act 1992: the Network Rail (Ordsall Chord) Order 2015 SI 2015/780. This was accompanied by various listed building consents necessary to interfere with the fabric or settings of the aforementioned structures. The ministerial decision set out in the order affirmed the recommendations of the planning inspector who had presided over a public inquiry into the scheme pursuant to procedures under the 1992 Act. The claimant sought judicial review of this decision on the grounds that the Secretary of State had failed to properly balance the benefits of the scheme against its deleterious effects on the heritage of the area. Moreover, he had not given due weight to an alternative proposal, the so-called ‘Option 15’, which would have largely avoided causing harm to the listed buildings. However, it had the disadvantage of cutting through a derelict area known as Middlewood Locks which Salford City Council had earmarked as the site for a major urban regeneration project.The claim was dismissed by the High Court, which could see no reason for impugning the decision of the Secretary of State: see Whitby v Secretary of State for Transport and others [2015] EWHC 2804 (Admin) . The matter was then appealed to the Court of Appeal.

The case hinged upon the correct interpretation of several provisions of the Planning (Listed Buildings and Conservation) Areas Act 1990. In short, these require the Secretary of State to pay special attention to the desirability of preserving buildings, their architectural features and settings both within and without conservation areas. Lindblom LJ agreed with the planning inspector’s findings which had been heavily relied upon by the Secretary of State. In particular, the planning guidance (PPS5) which seeks to flesh out the statutory duties and the planning inspector’s interpretation of it was endorsed. A key aspect of the guidance focuses upon reasonableness and whether ‘there is no other reasonable means of delivering similar public benefits.’ The inspector was right to conclude that, due to its impact on the Middlewood Locks development, it was doubtful whether Option 15 could be regarded as reasonable alternative.

Another important issue raised by the inspector was that Network Rail had already rejected Option 15 and there was no proposal on the table. Furthermore, Network Rail had indicated that it was doubtful whether an Option 15 proposal would be promoted, even if their application was rejected. Whilst Lindblom LJ accepted that this was a relevant consideration he clearly found it less convincing and attached far more weight to the Middlewood Locks issue – see para [50].

Thus, it seems that the possible disruption to modern development trumped damage to heritage:

On a fair reading of paragraphs 873 to 880, in particular paragraphs 875 and 880, he found the harm to regeneration associated with Option 15 sufficient to exclude that alternative as a “reasonable means” of delivering the public benefits of an Ordsall Chord and as an “appropriate alternative site”. Inherent in this conclusion is that the harm to regeneration associated with Option 15 was, in his [the planning inspector’s] view decisively greater than the harm to heritage assets of the highest significance associated with the order scheme. There is, and can be, no challenge to any of these conclusions. They represent an entirely reasonable exercise of planning judgment. And the reasons given for them were perfectly adequate and perfectly clear.

Overall the division shows that, where planning decisions are finely balanced, it can be very difficult to challenge the judgement of the decision maker. As Lindblom LJ put it at para [52], ‘this as a classic case exercise of decision making judgment…’ The test for impugning the judgment of the decision maker in judicial review is very onerous and is based upon irrationality.

However, one aspect of the case that is worthy of note is the fact that, if the application was rejected it might spell the end for the entire scheme because Network Rail had already rejected the Option 15 proposal and had indicated that no alternative proposals would be forthcoming. This raises the issue of whether, where major infrastructure projects upon which many political and economic aspirations are pinned, developers can exert pressure on the decision maker by saying ‘it’s this or nothing’ (although there is nothing to suggest that the promoters consciously pursued such a strategy in this case).  This is a difficult issue and it is interesting to note that, whilst the planning inspector attached some weight to the fact that no alternative proposals may be forthcoming, the Court of Appeal downplayed the issue somewhat and regarded it as a ‘consideration’ but not a ‘critical one’ – see para [50]. Thus, had it not been fore the Middlewood Locks Development, it seems that the matter might have been much more finely balanced.

Seeing STARS again: Court of Appeal upholds High Court decision

As a postscript to the previous entry on the judicial review arising from the STAR project please note that the Court of Appeal has now upheld the decision of the High Court – albeit with some reservations: R (on the application of London Borough of Enfield) v Secretary of State for Transport [2016] EWCA Civ 480. To briefly recap, Enfield Borough Council sought judicial review of the terms upon which an invitation to tender had been issued in respect of the franchise for the East Anglia Franchise. In short, the Enfield BC argued that the Department for Transport had led them to believe that operators would be required to provide a 4 train per hour (4tph) service for a new station serving the Meridian Water development – a major £2.5 billion urban regeneration project. The communications with the Department for Transport were said to have created a legitimate expectation that this requirement would be included in the franchise agreement and that the failure to include it in the tender documents thwarted this legitimate expectation.

As regards the emails which were at the heart of the dispute the Court of Appeal agreed that they did not create a legitimate expectation for 2 main reasons. Firstly, it was held that the local authority was already firmly committed to the project as evidenced by the fact that it had already invested £70m. Secondly, its actions showed that it had taken a calculated risk in embarking upon the project. Both these factors demonstrated that the requisite degree of detrimental reliance was lacking. However, although it did not affect the outcome of the appeal, the Court of Appeal disagreed with the High Court’s finding that it was unforeseeable that the communications with the STAR working group would be communicated to the local authority. It also found that the emails were clear and unambiguous albeit mistaken. In this respect the Court of Appeal was highly critical of the performance of the Department for Transport in the matter:-

‘Regrettably, this was an inept performance on the part of the DfT, serving to undermine public confidence in its competence and the communications of its officials’ [para 49].

It was also argued that the Secretary of State had acted irrationally in failing to take into account the economic impact of the 4tph requirement and its effect on the regeneration project. The Court of Appeal held that, whilst various documents highlighted potential for local regeneration as a consideration to be taken into account in franchise agreements in so forth, such commitments were expressed with a ‘very high level of abstraction’. In this respect they were not sufficiently concrete to form the basis for judicial review of the decision. Moreover, the Department had adhered to its standard economic modelling practices and complied with the requirements of the Public Service (Social Value) Act 2012, s 1(3).

 

SEEING STARS: RAIL FRANCHISING AGREEMENTS AND LEGITIMATE EXPECTATIONS

The existing Angel Road station. Nigel Cox

The existing Angel Road station.
Nigel Cox.

THE STAR PROJECT

Enfield Borough Council recently sought judicial review of the terms upon which an Invitation to Tender (ITT) was issued for the East Anglia Franchise – London Borough of Enfield v Secretary of State for Transport [2015] EWHC 3758 (Admin) . The franchise includes a hitherto neglected stretch of track from Stratford to Angel Road on the West Anglia mainline to Hertfordshire. This section of line in question is due to be upgraded and stations refurbished as part of the STAR project (a convenient acronym for Stratford to Angel Road). Angel Road is the centrepiece of the development in that it will serve the Meridian Water property development and will be renamed as Meridian Water station to reflect its new purpose; at present the station is little used and has no facilities.

TRAIN SERVICE REQUIREMENTS

The ITT  for the East Anglia Franchise was issued by the Department for Transport on 17 September 2015 but the local authority was dismayed to find that it did not contain a minimum Train Service Requirement (TSR) for Angel/Meridian station. The Defendant is empowered to set minimum service requirements by virtue of section 23 of the Railways Act 1993. Given that the station redevelopment is central to their plans for good public transport links to the new development they considered that a TSR was essential. They had assumed that the ITT would include a TSR of 2 trains per hour (2tph) until May 2018 and then 4 trains per hour (4tph) thereafter following completion of the infrastructure upgrade work.

EMAIL EXCHANGES

The Local Authority sought judicial review of the terms upon which the ITT had been issued on the grounds that they had a legitimate expectation that the aforementioned TSR would be included. This claim centred on two emails sent by an official in the Department of Transport. The first email (dated 29 July 2015) had been sent to the secretary of the STAR steering group. The steering group comprises a number of interested parties brought together to promote and manage the STAR  project. It includes Enfield BC, Network Rail, Haringey LBC, Transport for London, the GLA and the Department of Transport. The second email was a reply sent by the DoT official to a consultant working for the Council. The Council claimed that email confirmed the TSR in unequivocal terms and was described by a a Council official as ‘providing comfort on 4tph.’

By this time it seems that the Council had spent £70m on the project although must be emphasised that most of this expenditure had already been incurred and was not predicated on the email exchanges at the centre of the dispute. At one point it was claimed that the minutes of a STAR steering group meeting held on 29 May 2014 indicated the defendant’s support of a 4tph service following completion of the development; although this does not appear to have been relied upon in support of the claim.

After the current proceedings were under way the defendant wrote to the Council and stated that it had commissioned a new study into the business case for increasing the frequency of services calling at Angel Road. The conclusion was that, despite the substantial property development, there would not be sufficient demand to merit the TSR desired by the Council.

In short, the Council claimed that the emails from the DoT, especially when read in the light of other emails and evidence, afforded the Council a legitimate expectation that the TSR would be included in the ITT.

LEGITIMATE EXPECTATION

The law on legitimate expectation was summed up by the judge, Mrs Justice Laing, at paragraph 72 of the judgment thus:

‘A public authority may create a legitimate expectation (substantive or procedural) if it makes an unambiguous and unqualified promise on which it is reasonable for the promisee to rely.’

Moreover, a number of  authorities were cited to the effect that, even where a prima facie legitimate expectation has been created, it is not necessarily set in stone. The decision maker must be given some leeway to change his mind in the light of overriding public interest considerations or simply to correct miscalculations. The pattern which emerges from the case law is that the courts are slow to find that an irreversible legitimate expectation has been created where the issue has ‘multi-layered effects’ involving ‘wide-ranging issues of general policy.’ [para 75]

As regards the case at hand the judge considered whether the two emails relied upon by the claimant were sufficient to satisfy the aforementioned criteria. As regards the first email of 29 July 2015 the judge regarded it as significant that the Department of Transport official was dealing with a member of the STAR steering group as rather than directly with the Council. She rejected the notion ‘that the Defendant is to be fixed, by some process of ineluctable inference, with knowledge that this email would be transmitted to the Council, still less, that the Council might or would rely on it.’ [para 83]. Moreover, the Council could not ‘legitimately expect’ that they would be given a ‘reliable private insight into the ITT specification’ ahead of its publication [para 84]. In addition, she found that the Council had no reason for believing that the DoT official in question had any authority to make such binding promises regarding the content of the ITT. [para 84]

As regards the second email of 5 August 2015 from the DoT official to the consultant working with the council, the judge noted that there was a note of equivocation in the questions put by the consultant to the DoT. Thus he ‘asked a tentative question “I wonder if you could confirm…” ‘ and whether the DoT ‘could confirm the expected position.’ [para 85] In other words there was an element of seeking an opinion or a belief as opposed to a firm commitment. Once again the judge reiterated the point that the Council had no reason for believing that the DoT official had the requisite expertise or inside knowledge for making such promises. Also, she was confident that all parties knew that the Council’s request for greatly improved services on the line was ‘a huge challenge’. Thus, the Council should have treated any statements regarding the contents of the ITT with circumspection. In conclusion ‘it was unreasonable for the Council to rely on an “informal” email promising this great prize, elicited in the way that it was from the person from whom it was elicited.’

DETRIMENTAL RELIANCE

The judge then turned to the issue of detrimental reliance, an ingredient of legitimate expectation in most cases, and prefaced her findings on this issue by suggesting that the Department of Transport official had ‘got it wrong’ in terms of communicating the official position of the Department of Transport to the various parties involved [para 88]. He may have misunderstood the position or others in the organisation may have failed to make the position clear to him. In any event, the judge asserted that ‘I should be slow to fix the Defendant with the consequences of such a mistake.’ Thus, she would only be prepared to do so if there was clear evidence of the Council having acted to its detriment. On this point she concluded that the Council had in fact taken ‘a calculated risk’ and had already taken certain crucial steps towards the completion of the development ahead of the email correspondence at the heart of the dispute.

PUBLIC INTEREST CONSIDERATIONS

Having decided that no legitimate expectation had not been created in the first place the judge did not deem it necessary to dwell on the issue of whether the Department for Transport had been entitled to depart from it in the light of overriding public interest considerations. She concluded that they would have been entitled to do so given the fact that the scheme in question forms just one small part of the WAML and must be balanced against by the much larger public interest considerations arising therefrom.

 

The matter has now been appealed to the Court of Appeal.

Noise, horses and the Evergreen 3 project

A Chiltern Railway's service from London Marylebone to Oxford Parkway appears around the new curve at Gavray Junction, Bicester, which allows these trains from Marylebone. The line to the left is the old freight route from Bletchley to Oxford. Since passengers trains ceased on this route in the 1960s many houses have been built in the area so a sound-proof fence is being built to reduce the noise nuisance to the railway's neighbours. Geoff Sheppard

A train from London Marylebone to Oxford Parkway negotiates the new Gavray junction which enables trains to run between Oxford and Marylebone for the first time. Construction of high fencing to reduce noise can be seen.
Photo Geoff Sheppard

The Evergreen 3 Project

The Chiltern Railways Evergreen 3 Project, which will establish the first new intercity mainline rail link since the close of the Victorian era, is now very nearly complete. The project has entailed upgrading large stretches of track and building a new chord linking the Oxford to Bicester line with the mainline between London Marylebone and Birmingham Snow Hill. On 26 October 2015 services commenced between a new Oxford Parkway station, situated four miles from the centre of Oxford at Water Eaton, and London Marylebone. The final link between the main Oxford station and Oxford Parkway is due to open in Spring 2016; this again entails replacing existing track and carrying out other major infrastructure improvements. Moreover, the scheme represents the first link in the East-West Rail project the ultimate aim of which is to reinstate the Varsity Line between Oxford and Cambridge.

By modern standards the project is ambitious, although it has not entailed building much line on virgin territory. In this respect it is not on the scale of its Victorian counterparts or the current HS2 project. Nevertheless, the promoters are perfectly correct to bill it as the first new intercity route since the opening of the Great Central in 1899. In fact, many of the objections raised by individuals and businesses residing along the route would have been very familiar to Victorian railway promoters; a case in point concerns noise and the impact of more rapid and frequent train movements on livestock.

Noise and planning requirements

As noted above, the new route currently terminates short of Oxford at a new ‘Oxford Parkway’ Station. Major track and infrastructure improvements must now be carried out  on this final short section of the new link. The Varsity Line between Oxford and Cambridge was severed in 1967; although it is surprising to note that Beeching’s axe was not actually to blame on this occasion. Since then residents in the suburbs of Oxford lying along the route have become accustomed to no more rail traffic than an infrequent and slow local train to Bicester. The opening of the route between the centre of Oxford and Marylebone will increase this to 74 train movements each day. When the next stage of the East-West Rail Link is completed in 2019, which would enable trains to run as far as Bedford, Rail 784 reports that this will rise to 171 train movements. Thus, it is not surprising that concerns were expressed regarding increased noise and vibration associated with the new rail services.

The project has been authorized by way of a ministerial order made under the Transport and Works Act 1992: see The Chiltern Railways (Bicester to Oxford Improvements) Order 2012 SI 2012/2679. The ministerial decision letter of 17 October 2012 which accompanied the Order added certain conditions to the deemed planning consent granted by the Order. Condition 19 requires noise and vibration mitigation measures to be adopted along the entire route insofar as this is reasonably practicable and necessary. As regards the final section between the main Oxford station and Oxford Parkway, Oxford City Council must satisfy itself that the promoters’ plans satisfy this requirement before approving the works. Network Rail (which is now the lead promoter having taken over from Chiltern Railways) submitted its noise mitigation proposals to the Council’s Planning Committee in early December following a public consultation demanded by condition 19. The noise mitigation measures mainly consist of the erection of 2.5m high fencing where the tracks run past housing. Having undertaken much research Network Rail maintain that the vibration will not be sufficient to merit additional measures. Modern track technology and trains means that vibration is now far less of an issue than it once was.

Nevertheless, the proposals may not be enough to assuage public concerns regarding the impact of the scheme on residents along the route. The proposals have already generated a large number of comments, many of which challenge the assertion that a 2.5m fence will be sufficient. Alternative suggestions  include higher fencing, speed restrictions and even the use of Tata ‘silent track.’ Further along the line towards Bicester, on the section that is already open, the proprietors of Wendlebury Gate Stables have fought a long battle with the promoters of the scheme regarding the adequacy of noise abatement measures where the line runs alongside their riding school. They argue that the noise problem is especially acute at that location because it  makes it difficult for riding instructors to make themselves heard during lessons and because of the susceptibility of horses to noise and sudden movements. These arguments were forcefully made during the public inquiry into the scheme which was held pursuant to procedures under the Transport and Works Act: see document OBJ/238/8. The Secretary of State agreed that noise mitigation must be undertaken at that location and Wendlebury Stables are specifically mentioned in condition 19. Nevertheless, arguments continued regarding the adequacy of the proposed fencing.

From the above it is clear that, although noise features prominently in the planning process and a myriad of detailed consultants reports have been produced, there can be no guarantee that the noise issue will be resolved to the satisfaction of all affected parties. This begs the question of whether any legal avenues may remain open once all planning consents have been granted and the line is in full scale operation.

Statutory Authority

Anyone contemplating an action in public or private nuisance with a view to gaining an injunction or damages, once the line is in full scale operation, would immediately run into the statutory authority defence. In short, railway operators are immune from liability in nuisance in respect of harms which are the inevitable consequence of exercising their statutory powers and duties. This was established by the very early railway case of R v Pease (1832) 4 B & Ad 30, 110 ER 366  which concerned the spooking of horses on the Yarm turnpike by steam engines grinding along the Stockton and Darlington Railway. The solicitor to the Stockton and Darlington Railway, Francis Mewburn, had had the foresight to insert a provision into the private Bill under which the scheme was authorized which specifically enabled the railway company to use steam locomotion. The Court of Kings Bench held that Parliament must have foreseen that travellers on the turnpike would be incommoded by the locomotives and deemed this to be a reasonable price to pay for the benefits of the technology. The importance of Mewburn’s clause was immediately apparent and brought about the adoption of section 86 of the Railway Clauses (Consolidation) Act 1848 which sought to standardise clauses used in the dozens of private Bills which came before Parliament at the height of the railway revolution. Section 86 established a defence of statutory authority and played a significant role in limiting the liability of railway companies for fires caused by stray sparks and burning embers emitted by steam locomotives. The case law did, however, bring about one important qualification in that the defendant would have to show that the harm was the inevitable result of exercising the statutory power.  This led to very lengthy and technical arguments about whether the railway companies has used the most appropriate technological means of reducing the emission of sparks. Given that the railway companies monopolised large proportion of the railway engineering expertise. It was very difficult for plaintiffs to challenge their assertions regarding what constituted the appropriate engineering solution.

As regards 21st century projects it is interesting to note that the HS2 Bill expressly incorporates section 86 of the Railway Clauses (Consolidation) Act 1848. More generally, section 122 of the Railways Act 1993 established a defence of statutory authority in respect of nuisances caused by trains operating on the national rail network. Given that the Evergreen 3 project forms part of the national rail network the fact that section 122 will come into play is beyond doubt. The courts have never had the opportunity to fully consider the scope of this section but it seems likely that it comes equipped with existing common law baggage. In this respect it may leave open the possibility of arguing that the harm was not inevitable. However, as regards Evergreen 3 and the completion of the Oxford to Oxford Parkway section, by the time that Oxford City Council gives its assent to the noise mitigation plans demanded by condition 19, the suitability of the proposed measures will have been very thoroughly investigated. A litigant would face an uphill struggle in terms of persuading the courts that the planning process had got it wrong. Added to which is the fact that any modern interpretation of the statutory defence is likely to incorporate cost considerations.

Conclusions

Until a new line is put into full scale operation one cannot ascertain whether all adverse consequences have been foreseen by the planning process. If one views the common law as a means of fine-tuning the planning process rather than as a mechanism for correcting ‘regulatory failure’, it is possible that the courts would be more receptive to augments that a nuisance at a particular location is not inevitable. As regards Evergreen 3 and the final link to Oxford centre, it is notable that Network Rail has already considered the judicious use of Tata silent track at locations particularly susceptible to nose such as Wolvercote Junction (see Oxford Mail). It is not beyond the realms of possibility that a court could be persuaded that more use should have been made of this system if the noise is worse and more widespread than originally contemplated when the line is put into operation. Having said that, it is one thing to install special track at the construction stage, it would be quite another to rip up new track and install it after litigation. In such circumstances it is still likely that cost would rear its ugly head as a decisive factor. There may be more scope for challenging the use made of less sophisticated noise abatement measures such as the height of fencing at riding schools.