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.

 

 

Reversing Beeching Round table

Rowlands Gill Station. Photo courtesy of R J McNaughton

Rowlands Gill Station.
Photo courtesy of R J McNaughton

On 13th May the School of Law at the University of Reading hosted a round-table discussion entitled, ‘Reversing Beeching? Law and the New Railway Revolution.’

The event focused on the legal challenges and opportunities which has been created by the railway renaissance of the past 20 years or so covered everything from light rail projects to High Speed 2. Participants included specialist lawyers working in the field together with academics from law and economics. There was much debate about how the legal landscape has changed since the nineteenth century railway revolution and the impact of judicial review and environmental impact assessment. There was also a fascinating debate about how it is difficult for community rail projects to get off the ground due to competing interests in the industry.

We hope to run future events on various aspects of law and the railways as part of a long term project to establish a research hub in this field.

 

 

 

Judicial Review Challenge Against Radlett Railfreight Interchange Rejected

A decision by the Secretary of State for Communities and Local Government  to authorise the construction of a new rail freight interchange at Radlett near St Albans has survived a challenge by way of judicial review: St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655. In short, the case centred on whether the planning inspector and Secretary of State had fettered their discretion by treating criteria established by an earlier unsuccessful application in respect of the same development as a legal test. St. Albans City and District Council, which has resisted the development throughout, applied to have the decision quashed.

The saga of the St Albans freight interchange dates back to 2006 when the developer, Helioslough, submitted its first planning application. The development entailed building on green belt land and encountered much local opposition. Moreover, it engaged the National Planning Policy Framework, paragraph 89 of which provides that inappropriate development which could harm the green belt must be avoided unless there are very special circumstances. The planning authority rejected the application and the developer appealed triggering a planning inquiry by a planning inspector. In his report the inspector stated that the need for such strategic rail infrastructure could constitute a very special circumstance provided that there were no suitable alternative sites. However, in this case the inspector concluded that there had not been a sufficiently thorough inspect of over sites less harmful to the green belt and recommended that the application should be rejected. The Secretary of State accepted this recommendation.

The developer submitted a second application which was again rejected by the local authority. Once again the developer appealed against the decision.This time the Secretary of State accepted the inspector’s recommendation to the effect that planning permission should be granted because this time there had been a thorough investigation of other sites and that there were no suitable alternatives.

The local authority sought judicial review of this decision on the grounds that the criteria set out in the inspector’s report relating to the first application, to the effect that the strategic need for such infrastructure could justify green belt development if no suitable alternative sites could be found, was treated as a legal test in the second appeal. Thus, those determining the appeal had fettered their discretion in the sense that a finding that no suitable alternative sites existed would lead to the inevitable conclusion that the development should be allowed.

There was a second ground of review which focused on the fact that the Secretary of State had earlier refused to grant consent for the construction of a waste management facility on a greenfield site four miles away. It was argued that the decision to authorise the rail freight interchange was inconsistent with this earlier decision against allowing industrial development on a nearby greenfield site.

The High Court rejected the application to quash the decision in favour of authorising the development on the grounds that the planning inspector and Secretary of State had not regarded the criteria as a legal test. Where there has already been a thorough consideration of the issues the decision maker is entitled, as a matter of judgement, to regard the findings as persuasive. It does not follow that such findings are being applied as legal tests. The case of Kings Cross Railway Lands Group v Camden LBC [2007] EWHC 1515 was applied in this respect.

The second argument, pertaining to the inconsistency with the earlier decision not to allow the building of a waste incinerator, was rejected on the grounds that they were very different projects which raised very different considerations.

Reversing Beeching? Law and the new railway revolution

In order to launch my centre for Railways and Law at the University of Reading I shall be hosting a round-table discussion entitled ‘Reversing Beeching? Law and the New Railway Revolution’ on 13 May 2015. The event shall focus on the legal challenges associated with building railways in the 21st century and the extent to which planning mechanisms are fit for purpose. Please click on the following link to download a flyer for the event.

Reversing Beeching? Law and the New Railway Revolution

 

Places are limited but if you would be interested in attending please contact me by leaving a message or using the contact details on the flyer.

 

 

 

HS2, safeguarding directions and strategic environmental assessment

The Court of a Appeal has upheld a decision of the High Court to the effect that safeguarding directions, relating to the HS2 project, do not constitute a plan or programme triggering the need for a strategic environmental assessment: The Queen on the application of HS2 Action Alliance, London Borough of Hillingdon v The Secretary of State for Transport v High Speed two HS2 Ltd [2014] EWCA Civ 1578.

The High Court decision is dealt with in my blog HS2 and Strategic Environmental Assessment – Again! To recap, safeguarding directions, issued pursuant to powers under section 74(2) of the Town and Country Planning Act 1990 and section 25 of the Town and Country Planning (Development Management Procedure) (England) Order SI 2010/2184, enable the Secretary of State to restrict the granting of development consents which may conflict with a major infrastructure project such as HS2.

In R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, the Supreme Court held that the initial government policy commitment to build HS2, contained in a document entitled High Speed Rail: Investing in Britain’s Future: Decisions and Next Steps (Cm 8247, 10 January 2012), did not constitute a ‘plan or programme’ which ‘set the framework for future development consent of projects’. This would have necessitated a strategic environmental assessment to be conducted pursuant to Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. Parliament would decide whether to grant consent, by way of the hybrid bill procedure, and the document could bind it in any way.

In the present case the claimants argued that the safeguarding directions constituted a ‘plan or programme setting the framework for development consent’ because they tied the hands of the individual planning authorities along the route. Thus, they would effectively control the nature of development within a corridor running the entirety of the route and ensure that it was commensurate with the building of a high speed line.

The appeal was rejected on the following grounds. The main reason was that the effect of the directions would be to channel problematic cases to the Secretary of State for Communities and Local Government by way of the appeals procedure under section 78 Town and Country Planning Act 1990. The Secretary of State would not be bound by the directions to the same extent as local authorities. Having said that, the strategic objectives set out as the justification for the directions would constitute powerful material considerations and the Secretary of State would have to adduce powerful reasons for departing from them. However, the directions are merely procedural requirements which facilitate the execution of the policy. They do not create the policy and have no effect on whether the scheme reaches fruition; this remains within the gift of Parliament:

“While the Directions constrain the manner in which the local planning authority may determine an application, they do not place any constraint upon the Secretary of State for Communities and Local Government when he determines an appeal under section 78 . While it is highly likely that on appeal the Secretary of State for Communities and Local Government would place considerable weight on the three objectives that are set out in the Guidance Notes and the Directions themselves (see paragraphs 6 and 7 above), he would not be doing so because they are the stated aims of the Directions. The three objectives would be weighty planning considerations because of the national importance which the Government attaches to the implementation of the HS2 project, as evidenced by the fact that it is promoting the hybrid Bill.” (Sullivan LJ at para [18]).

This leads to the other major reason for rejecting the appeal, namely, that the directions have no independent force and cannot be viewed as distinct entities from the policy commitment to build HS2. They are shaped by the project which is currently being authorised under the hybrid bill procedure. The directions are inextricably linked with that project and have had to be adapted on a number of occasions as the project evolves. Thus, given that the Supreme Court has already ruled that the project itself is not a plan or programme, it would be illogical to regard the directions as constituting plans or programmes in themselves. Rather, they are mere manifestations of that project and are shaped by it. Otherwise, One could say that it would be a case of the tail wagging the dog!

“The Government’s proposal for HS2 is being pursued by specific legislation, and not pursuant to any “plan or programme” for the purposes of the SEA Directive . That being the case, it is not realistic to describe the Directions which take their shape from a project which is being pursued (in the absence of any plan or programme) in a hybrid Bill, and whose sole purpose is to ensure that the implementation of that project is not prejudiced by other developments, as some form of “plan or programme” in their own right.” (Sullivan LJ at para [20]).”