Fresh HS2 Legal Challenge

Dave Bushell

I had hoped to leave HS2 alone for a while and catch up on other issues such as the world of franchising. However, further to my last entry on HS2 Mr Packham through his solicitors Leigh, Day & Co has launched the first stage of his judicial review of the decision of the Government to press ahead with the project in the light of the Oakervee Review. As a result I feel that I have little alternative other than to offer my initial observations.

The arguments

We now have a much clearer view of the arguments and it seems that the Oakervee Review is indeed at the heart of the challenge. It is contended that the Oakervee Review was flawed in that it failed to pay sufficient attention to the climate change implications of the project. For example, it is argued that issues such as emissions from construction machinery were largely overlooked as was the possibility of increased air travel arising from better regional airport connectivity (although, as regards the latter point one cannot help but point out that the Heathrow link was ditched!) Moreover, the challenge has been given added emphasis by the successful challenge in the Court of Appeal against the third runway at Heathrow again on climate change grounds.

It’s all about procedure

The main point to note is that this is all about the planning process and compliance with procedural requirements pertaining to the fulfilment of environmental requirements. As such it is slightly odd that the main focus appears to be on a policy document such as the Oakervee review. Leaving aside the argument set out in my previous post to the effect that it is doubtful whether such a document could be construed as resetting the entire decision making process, it is worth noting the Supreme Court decision in R (on the application of Buckinghamshire County Council and others) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324 (more on which later). Here it was held that a policy document which proclaimed the Government’s desire to build HS2 (Department for Transport, High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps Cm 8247 (2012)) was not the planning decision which triggered the need for compliance with procedures pertaining to environmental protection (the need for a strategic environmental assessment in this case). Under the hybrid Bill procedure Parliament is the decision maker and it is the preparation of the Bill which triggers environmental assessment: see, for example, Lord Carnwath at [38]. Policy documents, advisory opinions, review panels, statements of intent and so forth in no way bind the hands of the decision maker.  Thus, the main focus needs to be on the adequacy of those planning procedures which do in fact govern the decision making process.

Heathrow 3rd Runway Case

Before turning to the HS2 case itself it is necessary to say something about the Court of Appeal decision on the third runway at Heathrow which has been credited as giving added impetus to the HS2 challenge: R (on the application of Friends of the Earth) v Secretary of State for Transport and others [2020] EWCA Civ 213. The decision is not quite as ground-breaking as has been made out and focuses on narrow procedural requirements. Heathrow expansion is being dealt with under the Planning Act 2008 rather than hybrid Bill procedure. The Act relates to large scale infrastructure projects and a crucial stage is the designation of a ‘national policy statement’ (NPS) by the Secretary of State which sets government policy and provides a firm framework for the next stages of the process: see Airports National Policy StatementSection 5(8) of the Act specifically requires the NPS to ‘take account of’ government policy on climate change. The NPS appeared to have taken account of the Climate Change Act 2008 (CCA 08) but, at the material time, the CCA 08 had not been amended to reflect the commitment which the Government had agreed to under the Paris agreement to hold ‘the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.’ In fact, there had been an express decision not to incorporate the exigencies of the Paris agreement in the NPS because it had yet to be incorporated into domestic law. This is where NPS fell short in that the Court of Appeal held that the  expression ‘government policy’ clearly goes beyond legislative measures and includes other commitments and decisions. The Court (perhaps sensing that people were likely to get carried away by the significance of the decision) bent over backwards to emphasise the point that it was doing nothing novel in requiring the decision maker to adhere to clearly set out procedural requirements in the planning legislation. As the Court said at [230] “…requiring the Crown to comply with what has been enacted by Parliament (in this case the obligations in section 5(8) of the Planning Act) is an entirely conventional exercise in public law.” Moreover, the Court was at pains to point out that, if the decision maker had in fact taken the Paris Agreement into account, the scope for judicial scrutiny of the manner in which he had done so would have been limited: “We repeat that the duty in section 5(8) does not even require the executive to conform to its own policy commitments, simply to take them into account and explain how it has done so.” (at [231]). Overall, it seems that there was a very specific procedural defect which is unlikely to reoccur thanks to this judgment and the fact that the CCA 08 has now been amended in any case so as to reflect the Paris Agreement. To this end the Climate Change Act 2008 (2050 Target Amendment) Order 2019 SI 2019/1056 substituted the existing target (to reduce the carbon account to 80% below the 1990 baseline) with a commitment to achieve a 100% reduction: see Explanatory Memorandum.

HS2 and Environmental Assessment

All in all the Heathrow case was a highly traditional judicial review decision with the Court seeing its role as one of ensuring that the decision maker adheres to the letter of the rules that have been set in terms of reaching the decision but largely steering clear of the substance of the decision. Thus, in turning to the HS2 project our focus must also be on compliance with the relevant procedures rather than the substance of the decision. As noted above, the HS2 project is subject to the hybrid Bill procedure. It is divided into 3 phases (notwithstanding the attempt to merge phase 1 with phase 2a) and the current state of legislation reflects these 3 phases. Thus, it is logical to look at each one in turn.

Phase 1

Legislation has already been enacted in respect of phase 1  of the scheme from London to  Birmingham and the West Midlands: the High Speed Rail (London – West Midlands) Act 2017. Standing orders for private and hybrid bills had to be adjusted to take account of the need for environmental assessment. At the material time the relevant legislation was set out in Directive 2011/92/EU on Environmental Impact Assessment and House of Commons Standing Order (SO) 27A.  An environmental statement was prepared in pursuance of these requirements and was submitted to Parliament with the Bill and its associated documents in November 2013. It must be conceded that climate change did not feature heavily in the 2011 Environmental Impact Assessment Regulations SI 2011/1824 which were applicable at the time. In fact, there was just one fleeting reference to ‘climatic factors’ in the list of factors which an environmental statement should cover. Furthermore, under environmental assessment the duty is to ‘consider’ environmental factors which is arguably even weaker than ‘take account of.’ Nevertheless, the environmental statement which was attached to the phase 1 Bill fully engaged with the issue and contained a detailed assessment of climate change factors: see HS2 Phase 1 environmental statement volume 5: climate change. Moreover, the documents show that the study was conducted in the light of the Climate Change Act 2008 and the pre-Paris commitment to reduce carbon emissions to at least 80% below the 1990 baseline. Finally, in the aforementioned judicial review proceedings of 2014, the Supreme Court held that the hybrid Bill procedure was fully compatible with the requirements of environmental assessment: R (on the application of Friends of the Earth) v Secretary of State for Transport and others [2020] EWCA Civ 213.

Mr Packham’s solicitors have pointed out that matters have moved on since this environmental statement was prepared in that the UK government signed up to the Paris agreement and has indeed now amended the CCA08 accordingly. However, this suggests that the CCA08 amendment has some form of retroactive effect which is capable of reopening planning decisions which have already been made in accordance with the law that applied at the time. In the absence of very clear and express words to that effect this is very doubtful to say the least. It is also interesting to note that in the Heathrow third runway case the Court of Appeal said at one point that there was no incompatibility between the pre and post Paris targets in that the 80% reduction target was expressed as a minimum (see [225]); in which case the targets might not be so different. In any event, under the UK constitution it is simply not possible for a court to strike down an Act of Parliament.

Phase 2a

That brings us to phase 2a of the scheme which extends the line beyond the West Midlands to Crewe. As noted in my previous post on the issue the relevant legislation was introduced in the House of Commons in July 2017: the High Speed Rail (West Midlands – Crewe) Bill 2017-19 to 2019-21. The Bill progressed as far as the appointment of s select committee in the House of Lords to hear petitions before the dissolution of Parliament ahead of the December 2019 General Election. Both House of Parliament have now passed revival motions which means that the Bill does not have to be re-introduced and can be taken forward from where matters were left off. The environmental statement associated with this Bill was prepared in accordance with the more recent Environmental Impact Assessment Regulations 2017 SI 2017/571 which makes far more extensive references to climate change than its predecessor. As one would expect, the phase 2a environmental statement contains a detailed analysis of climate change issues and, notwithstanding the fact that the statement was prepared ahead of the amendment of the CCA 08, the Paris Agreement and the Government’s commitments there-under are expressly referred to: see, for example High Speed Rail (West Midlands – Crewe) Environmental Statement: Volume 3: Route Wide Effects where it is referred to throughout section 4 on climate change.

Phase 2b

As regards phase 2b concerning the completion of the line to Manchester and the other arm of the ‘Y’ shape to Leeds the project is under review and has been bundled up with the Northern Power House Rail Project so as to integrate HS2 with improving connectivity between Northern Cities. Hence planning is at a much earlier stage and the original proposals may be subject to extensive change. However, this means that there can be no doubt whatsoever that environmental assessment, which is currently at a ‘working draft’ stage (and clearly subject to major revisions if there are changes to route and project specifications etc) will be conducted according to the latest climate change policies. Indeed, as one would expect, the current working draft is already replete with references to the Paris Agreement: See High Speed Rail (Crewe to Manchester and West Midlands to Leeds) Working Draft Environmental Statement – section 4 on climate change.

Conclusion

Phrases such as ‘take account of’ and ‘consider’ environmental effects such as climate change arguably set the bar relatively low in terms of what the decision maker must do although they certainly go beyond paying mere ‘lip service’ to them. Provided that there has been some form of proper assessment which has been filtered into the decision making process the Court of Appeal has made it clear in the Heathrow case that the Court will be extremely chary about intervening in the actual substance of the decision:

As we have said, we are required – and only required – to determine whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully. Our task therefore – and our decision – does not touch the substance of the policy embodied in the ANPS. In particular, it does not venture into the merits of expanding Heathrow by adding a third runway, or of any alternative project, or of doing nothing at all to increase the United Kingdom’s aviation capacity. Those matters are the Government’s responsibility and the Government’s alone. (at [282].

There can be no doubt that the environmental statements prepared in respect of HS2 go far beyond minimal requirements. With a subject as complex and controversial as climate change it will always be possible to find experts who may disagree with the technical data or conclusions drawn in an environmental study; but this is not sufficient to impugn the decision.

In conclusion, there is simply no mileage at all in the argument that the HS2 project has not taken sufficient account of climate change issues and has ignored the requirements of the Paris agreement. To take the Oakervee review document in isolation and ignore the extensive assessments which have been carried out (or are still underway) in respect of all three phases of the project is nonsensical in the extreme.

 

 

HS2 gets the green light – again!

When the High Speed Rail (London – West Midlands) Act received the Royal Assent in 2017 one might have been forgiven for thinking that the legal and political shenanigans were over and work would begin in earnest. However, arguments over ever increasing costs meant that the ‘notice to proceed’ (which authorises the contractors to move in with their earth movers and commence the major civil engineering phase) has been continually delayed. This has left contractors fiddling around trying to find every scrap of preparatory work they can do within their current authorisations such as site clearances, building compounds, construction of access roads and diversion of utilities. The change of Conservative Party leadership brought about by infighting over Brexit then cast doubt over whether there was still a political consensus in favour of delivering the project. Despite his well known enthusiasm for major infrastructure projects the Prime Minister, Boris Johnson, was not prepared to endorse the scheme the moment he took office. Instead, he announced that an  independent panel, under the chairmanship of Douglas Oakervee, would be appointed to advise on whether there was still a case for proceeding with the project. The report (which was leaked before the Government formally wished to release it) found in favour of proceeding with both phases of the scheme despite the escalating costs: see ‘Oakervee Review.’ This week , of course, there was a huge media splash when the Prime Minister enthusiastically endorsed the scheme in Parliament with a characteristic flourish: HC Deb 11 February 2020, vol 671, cols 712-714.

At present only phase 1 of the scheme from London to Birmingham has been authorised by Act of Parliament. Phase 2A from Birmingham to Crewe, the first leg of the extension to Manchester, is to be brought forward and effectively treated as part of the first phase. A Bill covering phase 2A was introduced to the House of Commons on 17 July 2017  (the High Speed Rail (West Midlands – Crewe Bill) 2017-19. It had got as far as the appointment of a Select Committee in the House of Lords to hear petitions before the dissolution of Parliament ahead of the December 2019 General Election. Given the Prime Minister’s desire to bring forward stage 2A and merge it with stage 1 there can be no doubt that a revival motion can be expected any day now in order to set the legislative wheels turning again.

The phase 1 Act from London to Birmingham withstood two major legal challenges, both of which were dealt with on these pages. In R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents) [2014] UKSC 3 the Supreme Court held, inter alia, that the hybrid Bill procedure was compatible with the requirements of environmental assessment: see my post entitled ‘HS2 win in Supreme Court‘. The exigencies of Environmental Assessment came to the fore again in R ( on the application of HS2 Action Alliance, London Borough of Hillingdon) v Secretary of State for Transport [2014] EWCA Civ 1578: see my post entitled ‘HS2, safeguarding directions and strategic environmental assessment.’ Here it was held that safeguarding directions, which restrict development along the line of the proposed route, do not trigger the need for an environmental assessment.

Despite the fact that phase 1 of the scheme has already been authorised by way of an Act of Parliament and that the procedures for complying with environmental assessment have been endorsed by the Supreme Court, the Daily Mail reported that the television presenter and naturalist, Chris Packham, had been in consultations with Leigh Day & Co regarding a possible legal challenge to the Government’s decision to continue with the project in the light of the Oakervee Review: and this is indeed borne out by an article on Leigh Day & Co’s website. The Oakervee review is criticised as not constituting a thorough analysis of the environmental arguments. We have to wait and see what precise arguments they come up with but it would certainly constitute a bold challenge.

If (and I emphasise ‘if’) any challenge focused on the Oakervee Review it would attach huge weight to the report and regard it as hitting the reset button on the entire decision making process. The intention of the Government in commissioning the review appears to have been more about checking that it still wanted to adhere to its original decision rather than starting the entire process again from scratch as though it was operating in virgin territory; as the report notes at [2.3], ‘it is important to note that any examination of the project does not start from a blank sheet of paper.’ Is a decision as to (in the words of the report) ‘whether and how to proceed‘ (emphasis added) with an existing decision the same thing as making that decision in the first place? If I double check that I want to keep the jumper I have just bought before I lose the receipt (because I am concerned that I may have spent too much money on it!), am I required to take the jumper back to the shop in any event and start the entire jumper buying decision making process again including weighing up the pros and cons of different colours?  Indeed such an approach could set a precedent whereby it is effectively impossible to double check or review major decisions without going back to square 1 and starting all over again; this would lead to paralysis in the delivery of major projects and might actually dissuade decision makers from displaying any hesitation or conducting prudent last minute reviews and adjustments. Moreover, it is difficult to see how the existence of an Act of Parliament, enacted according to procedures which were endorsed by the Supreme Court, can be airbrushed out of the equation.

Crossrail and the Crichel Down Rules

Surface development at the new Woolwich Crossrail station. Photo Kleon3.

The Crichel Down Rules stem from a great political scandal of the 1950s when the Government of the day failed to honour an undertaking to allow the original owner of land, which it had acquired under compulsory purchase powers for military purposes, to purchase it back once it was surplus to requirements. The affair features heavily in textbooks on politics and public law in that it served to clarify the concept of ministerial responsibility and the type of decision which would require the minister to ‘fall on his sword’ following mistakes or misconduct by civil servants in his department; the case led to the resignation of Sir Thomas Dugdale, the minister of agriculture, who famously told Parliament that

I, as minister, must accept full responsibility for any mistakes and inefficiency of officials in my department, just as, when my officials bring off any successes on my behalf, I take full credit for them. See Hansard HC Deb 20 July 1954, vol 530, col 1186.

On the narrower issue of compulsory purchase powers it led to the ‘Crichel Down’ rules. These sought to establish a fair and transparent procedure for allowing the original owner of land, acquired by a public body under compulsory purchase powers, to buy it back if it becomes surplus to requirements. In short, such a person must be offered ‘first refusal’ on the property before it is offered for sale on the open market. The rules have been at the centre of two recent cases involving Crossrail and the acquisition of land needed to build what has now been officially named as the ‘Elizabeth Line.’ The case focused on the original Crichel Down Rules themselves and a version of them in a policy document produced by Crossrail itself on how such issues should be dealt with  – the C10 Land Disposal Policy.

In the most recent case, R (on the application of) Daniel Charlesworth v Crossrail Limited and another [2019] EWCA Civ 1118 the claimant challenged a decision not to offer him first refusal on a parcel of land which had been acquired by Crossrail in connection with the construction of an underground station at Woolwich and was no longer needed for the project. The property transactions were complicated and what follows is somewhat of an over-simplification. In short, the claimant had a long leasehold interest in a parcel of land which Crossrail needed for the construction of the station. It so happens that the land formed part of a larger parcel of land the freehold of which was owned by the London Development Agency (LDA). Crossrail (which enjoyed extensive compulsory purchase powers under the Crossrail Act 2008) used its powers to obtain the claimant’s leasehold interest of the property in 2010. On 11 February 2011 the LDA sold its freehold interest in the larger parcel of land to a property developer, Berkeley Fifty-Five Ltd (B55),  for £3 million. Just days later, on 15 February 2011, B55 Ltd sold a small part of that land to Transport for London (TfL) (of which Crossrail is a subsidiary) on a voluntary basis for a mere £1. The land in question (which included the claimant’s former premises) was of no value to B55 but was needed by TfL for the construction of the station.

By 2017 the station had been largely completed and, being a subterranean structure, the land on the surface was no longer needed and could be released for development. However, it was now very different to how it had appeared before in that it had been cleared of buildings and the only structure were now two large ventilation shafts.

Now, the Crichel Down Rules stipulate that no one can be offered first refusal if there is more than one competing claim on the land (see rule 15(6)). Here there were two people with a ‘Qualifying Interest’; namely the claimant by dint of his former leasehold interest in the property and B55 by dint of the short time it had enjoyed the freehold of the property. Thus, where more than one person qualifies no-one qualifies! The claimant sought to establish that B55 did not have a qualifying interest because the transaction executed on 15 February 2015 was entirely voluntary and was in no way prompted by the imminent use of compulsory purchase powers. If the claimant succeeded in this argument he would be regarded as the only party with a qualifying interest and would thereby have to be offered first refusal. These arguments focused attention on rule 7 of the Crichel Down rules and section 5 of the C10 Land Disposal Document by which Crossrail sought to give effect to those rules in a slightly modified form. Rule 7 of the Crichel Down Rules provides as follows:-

The Rules apply to all land if it was acquired by or under threat of compulsion. A threat of compulsion will be assumed in the case of a voluntary sale if power to acquire the land compulsorily existed at the time unless the land was publicly or privately offered for sale immediately before the negotiations for acquisition.

Sections 5.2 and 5.3 of the C10 Land Diposal Document (reflecting rule 15(6) of the CDR) provide as follows:-

[5.2] Where only one expression of interest from a former owner or long leaseholder with a Qualifying Interest is made to acquire a site, that person will be given the opportunity to acquire the site at market value within the timescales set. [5.3] If there are competing bids for a site from former owners, it will be disposed of on the open market.

Thus, if the land disposed of by B55 could be construed of has having been ‘acquired by or under threat of compulsion, ‘ B55 would have a competing claim and TfL/Crossrail would be at liberty to sell it on the open market without offering Mr Charlesworth first refusal.

The issue of what constitutes a ‘competing bid’ had been considered in the earlier very similar case of Pritchett v Crossrail Ltd [2017] EWCA Civ 317. The claimant argued in this case that an ‘expression of interest’ did not amount to a competing bid. The Court of Appeal rejected this argument on the grounds that the rules were drafted in such a way that they covered a broad spectrum ranging from serious bids to more tentative approaches.

As regards the case at hand, in an approved judgment delivered by Lewison LJ, the Court of Appeal was at pains to point out that the Crichel Down Rules are a policy and do not have the force of law behind them (at para [2]). Nevertheless, the Court then appeared to proceed on the basis that they were a form of legislation and interpreted them using an approach which is highly redolent of statutory interpretation.

The claimant  struggled to get round the ‘assumption’ that land is acquired by or under of threat of compulsion even where the sale is ostensibly voluntary. Counsel for the claimant argued that TfL and B55 had been in league all along in that B55 was the preferred developer for the site. The transaction had been designed to create two competing interests thereby defeating the claimant’s entitlement to first refusal under the Crichel Down rules. This militated against the notion that the transaction was anything to do with the impending use of compulsory purchase powers in that there was an ulterior motive. As counsel put it,

an assumption of this kind [that the sale was made under threat of compulsion] can be displaced by contrary evidence … The judge was wrong to equate a backcloth of compulsion and a sale made under threat of compulsion. The true reason for B55’s aquisition and (almost) immediate sale to TfL was to protect B55 and to enhance the prospects of its successful redevelopment of Woolwich. (see para [11])

The Court of Appeal was not receptive to these arguments and emphasised the fact that the assumption contained in the Crichel Down Rules was there for pragmatic reasons and the rules would become unwieldy and difficult to apply if one had to enquire too closely into the motives of the parties:-

The reason for the assumption in rule 7 is, to my mind, clear. It avoids the necessity of investigating the internal state of mind of an individual landowner. The investigation of the subjective state of mind of an individual landowner is likely to be partly speculative, since it postulates a hypothetical state of affairs in which the threat of compulsory acquisition is airbrushed out of history. It is also speculative in the sense that it is likely to be based in inferences. Such an investigation is also likely to be burdensome for an acquiring authority to undertake; particularly if the scheme in question affects a large number of landowners … (Lewison LJ at [17]).

The Court of Appeal (at para [12] also commented on an argument that was raised in the claimant’s skeleton argument but not pursued in counsel’s submissions, namely, that there is a difference between an assumption and a ‘deeming provision.’ A deeming provision provides that a certain set of circumstances exists whether or not this reflects the reality of the situation; an assumption, it was argued, does not automatically bring about a certain state of affairs and can be displaced by other factors. The Court felt that the distinction between the two terms was too fine to draw and they had been used interchangeably in the case law.

An argument that the Crichel Down Rules were motivated by fairness and thus should not be applied in a manner which was unfair to the claimant was also rebuffed on the grounds that, “for TfL to disapply the assumption in vague and unspecified circumstances would not be conducive to good administration.” (Lewison LJ at [15]). Moreover, it was wrong to say that the rules had been interpreted in a way which frustrated their underlying purpose. The rules had been designed to allow displaced persons an opportunity to reoccupy their old homes or resume their former businesses or way of life. The nature of the land here had been irrevocably changed and, as noted above, all the old buildings had gone. The claimant was effectively seeking an opportunity to participate in a new commercial venture rather than resuming his former activities. This point had also been made in the Pritchett case in which the claimant’s flat had been demolished to make way for the Crossrail development. As McCombe stated (at para [35]):-

The CD Rules apply to cases where the land in question has not materially changed in character. This policy [the C10 land disposal policy] is designed to include sites which have so changed. It is not necessarily apparent that the policy considerations in the two cases will be identical. The interested parties here were the appellant, who had owned an individual flat, and other parties who had interests in other individual parts of the site. None would be stepping back into a property of the character that he or it had previously owned. They would be getting the opportunity of commercial benefit from a potential new development of the whole site of an entirely different character. This is hardly the situation faced by the former owners of Crichel Down, whole erstwhile property gave rise to the principles now expressed in the CD Rules.

In point of fact the Crichel Down rules do actually specifically refer to a material change in the character of the land as constituting a ground for not offering first refusal to the original owner (see rule 10).

The interpretation of the Crichel Down rules (as applied in the Crossrail land disposal policy) has almost entirely removed any scope for questioning the motives of the parties. The fact that a transaction was conducted against the ‘backdrop’ of compulsory purchase raises and irrefutable assumption that a sale was not voluntary. On the face of it this appears to be a harsh and narrow approach which militates against the notion of fairness which underpin the Crichel Down rules (although, as pointed out above, the rules do in fact contemplate that eventuality). However, as the Court of Appeal pointed out, the rules are a policy which means that there is some scope for adapting them according to the circumstances on the ground. The fact that the land has changed to the extent that it would be impossible for the claimant to resume his former way of life or commercial activities, arguably lessens any unfairness arising from denying him first refusal on the property. Of course, some might argue that the use or threat of use of compulsory powers in the first place may have been unfair. For example, HS2 has been criticised for taking more land than it needs – see, for example, this NFU article. However, that issue is beyond the scope of this particular blog entry.

 

 

 

 

 

 

Railway Sparks and Line-side Fires

© Copyright Gareth James and licensed for reuse under this Creative Commons Licence

Every summer the operators of steam locomotives on heritage railways or mainline excursion trains confront the railway sparks problem. Steam locomotives, by their very nature, tend to emit sparks and lighted coals through the funnel or drop them through the grate underneath the firebox. In dry conditions this can set fire to line-side vegetation, crops and other property with the result that the operator may incur significant financial liabilities. In the heatwave of 2018 many steam operated services were cancelled. Diesel locomotives were sometimes used to assist steam locomotives so they would not have to work so hard (which reduces their propensity to emit sparks) or fire-beaters even followed steam locomotives in four by fours so as to be in a position to jump on a line-side fire the moment it erupted. Channel 5 even devoted an entire episode of a documentary series to how the North Yorkshire Moors Railway battled with the problem.

So, imagine how extensive this problem was during the heyday of steam when the national rail network was operated by thousands of locomotives. Clearly, it would have been entirely impractical for them to be followed by fire-beaters and cancelling scheduled services was not an option! In fact, it was a huge problem which was never resolved throughout the entire history of steam traction on the British rail system. Yet it appears to have been largely written out of most historical accounts of the development of the railways.

Nevertheless, the problem attracted the attention of economists and academic lawyers with an interest in the intersection between law and economics. It provided a convenient case study on how, if at all, the law should intervene so as to resolve land use disputes. Ones intuitive view tends to be that the perpetrator of the harm should, of course, be made to pay for it. An economist, on the other hand, may take a wider view and consider what outcome would be best for society as a whole. If strict liability was imposed would it encourage farmers to carry on growing crops near the line-side because they know they will be paid for the corps whether or not they get destroyed by fire – surely this would be wasteful and inefficient? Or would strict liability provide an incentive for rail operators to develop technology capable of reducing sparks?

Much of the debate has lacked an appreciation of how the courts actually tackled these disputes and, in order to put this right, yours truly has just published the most comprehensive and in depth legal historical account of the railway sparks problem: Mark L Wilde, ‘Railway Sparks: Technological Development and the Common Law’ (2019) American Journal of Legal History https://doi.org/10.1093/ajlh/njz024. Published: 31 October 2019 (advance online version).

The main things to emerge from the research are that the railway companies were largely shielded from the full costs of fire damage by statutory authority. The defence was largely shaped by the case of R v Pease (1832) 4 B & Ad 30, 110 ER 366  concerning spooked horses on a turnpike running alongside the newly opened Stockton and Darlington Railway. As noted in an earlier post on these pages (see ‘All the Queen’s Horses: HS2 and Statutory Authority‘) the solicitor advising the company had had the foresight to include a specific provision on the right to use steam locomotion in the private Bill and this was adopted as a standard clause in all such Acts by virtue of section 86 of the Railway Clauses Consolidation Act 1845. This meant that they would not be liable in respect of harms which were the unavoidable consequence of exercising the powers to operate trains, which were bestowed upon them by the private Acts of Parliament under which the lines were built. However, they would still be liable if negligence could be shown in that harm which is caused by a lack of care is a fortiori avoidable. Attention very quickly focused on the necessity of fitting spark arrestors.

The famous ‘cut away’ exhibit at the National Railway Museum, York (the Merchant Navy Class Locomotive 35029 ‘Ellerman Lines’ cut in half to show how a loco works) . The device resembling a mesh basket at the base of the funnel is a spark arrestor. (photo by the author)

These mostly consisted of metal grids or meshes, situated in various locations and various configurations in the smoke-box at the base of the funnel, which simply caught the sparks in the same manner as  a fireguard placed in front of a domestic fire. However, the railway companies disliked these devices because they tended to impair the draft of the locomotive thereby impeding its performance and increasing fuel costs. Instead, they advocated the use alternative devices, such as the brick arch and deflector plate and the vortex blast-pipe, as better solutions, despite the fact that these were designed to increase efficiency and reduce fuel costs rather than to reduce sparks. It was indeed the case that more efficient combustion could reduce sparks as a collateral benefit but they failed to reduce fire damage to any great extent. Nevertheless, in Port Glasgow & Newark Sailcloth v Caledonian Rly Co (1892) 29 SLR 577 the House of Lords declared that the vortex blast-pipe was the best practicable means (BPM) of reducing sparks and was thus sufficient to discharge the duty of care.

At the very beginning of the twentieth century Parliament introduced a very limited strict liability regime under the Railway Fires Act 1905 (as amended by the Railway Fires Act 1923) which imposed very limited capped damages for damage to crops and plantations. The research shows that the limited nature of the regime was due in no small measure to a concerted attempt by railway interests in Parliament to resist the imposition of more onerous liabilities. Where damage fell outwith the very narrow scope of the regime it was still necessary to have recourse to the common law and to surmount the evidential difficulties of proving fault on the part of the railway companies. As a result claimants struggled to gain compensation until the demise of steam in the 1960s.

Turning back to the present, it is still the case that the operators of heritage railways and steam locomotives enjoy a degree of statutory protection. In some cases the original Act under which the line was authorised may be still extant or, more usually, the re-opening of the line and the restoration of services may be governed by a ‘light railway order’ (conferred by the Secretary of State under powers first established by the Light Railways Act 1896 (as amended on several occasions). These typically contain a provision expressly authorising the use of steam traction: see, for example, reg 7 of the Swanage Light Railway Order 1987 SI 1987/1443. Thus, such a provision would give rise to a statutory authority defence provided that the harm was deemed to be the unavoidable consequence of exercising the power. However, it is fair to say that, where a comparatively small number of services are operated on a heritage line, where issues of speed etc are unlikely to be a major consideration, it may be more difficult for a modern operator to show that the harm was unavoidable; thus, the duty of care may be a more onerous burden to discharge. Hence the use of fire-beaters and diesel traction in the afore-mentioned examples together with the fitting of spark arrestors.

Spark arrestors on a workbench at the Didcot railway heritage centre. The railways sparks problem is still an issue for modern operators of preserved locomotives. (photo by the author).

It is also noteworthy that the Railways Fires Act 1905 (as amended) is still in force and is little changed. The last major modifications were made by the Transport Act 1981 which increased the cap on liability to £3000 and empowered the Secretary of State to raise the cap by way of statutory instrument – although this power has still not been exercised. Thus there may still be many cases in which the costs recoverable under the Act do not reflect the full damage costs.

In short, it may be a largely historical problem but the issue of railway sparks still has contemporary relevance. On a narrow level the use of preserved locomotives means that on occasion there may be live demonstrations of this once commonplace occurrence; thereby necessitating the preservation of legislation and common law principles in alongside the locomotives which create the problem! On a wider level the example is still returned to time and time again by those with an interest in the intersections between tort and economics. Moreover, it tells us something about how the common law reacts to technological change and how industry tends to dictate its own technological standards.

 

Breaks for Signallers and the Working Time Regulations

There can be few more safety critical roles on the railway than that of signaller (the new inclusive term for signalman). The role demands a considerable degree of concentration and responsibility and it goes without saying that sufficient breaks are necessary to maintain alertness.  The issue came to the attention of the media when a signalman was dismissed after 44 years service when he (according to the newspaper reports) took a 20 minute break after working non-stop for six hours.  Managers are reported as not having agreed to the break for reasons which are not entirely clear from the press coverage. Network Rail said that he started the lengthy process of shutting down the signalbox at a peak time on a week day; although the signalman is reported as having given managers 4 days notice and had found someone to cover for him.

This example called into question the application of the Working Time Regulations (1998) to the rail sector. On the face of it they appear to afford everyone an entitlement to a 20 minute break after working for 6 hours – although there are exceptions. The law in this area has now been tested by a claim brought by another signaller in the employment courts which ultimately fell to be determined by the Court of Appeal – Crawford v Network Rail Infrastructure Ltd [2019] EWCA Civ 269, [2019] ICR 1206 . As ever with the law the issue turns out to be more complicated than it first appears!

The signalman (a term which we can in fact use here because the claimant is a man and this is used in the case report) in this case worked in boxes which were designed for single person operation on eight hour shifts. There were no scheduled breaks but he was expected to take breaks as and when he could when there were naturally occurring breaks in proceedings. However, it was never possible to take an uninterrupted break of 20 minutes on this basis which is the usual statutory minimum under reg 12 of the Working Time Regulations. The Employment Appeal Tribunal (EAT) noted that the nature of his work brought into play an exemption under reg 21(f) which dis-applies the reg 12 statutory minimum break in respect of rail and transport workers who play crucial roles in ensuring the unimpeded flow of traffic. Nevertheless, reg 24(a) stipulates that alternative arrangements must be made in respect of such workers – known as ‘compensatory rest’. The Tribunal found that the alternative arrangements made by Network Rail were fully compliant with reg 24(a) but then ran into a quandary because of a decision of the Employment Appeal Tribunal – Hughes v Corps of Commissioners Management Ltd [2011] IRLR 100 which it interpreted as meaning that the compensatory rest provided under reg 24(a) must still amount to a 20 minute uninterrupted break insofar as this is possible (the case concerned a similar exemption relating to those engaged in security work). Thus, it went on to consider how such a 20 minute break could be accommodated and suggested that the employer could arrange someone to cover such breaks.

On appeal to the Court of Appeal it was held that such an interpretation of the law would make a nonsense of the concept of ‘compensatory rest’- perhaps a classic example of the mischief rule of statutory interpretation! If this had to amount to 20 minutes uninterrupted rest the provision would be redundant in that it would be no different to the reg 12 requirement which it purports to dis-apply. On this point Underhill LJ held as follows at [44]:-

Whether the rest afforded in any given case is “equivalent”, in the sense explained by Lady Smith, must be a matter for the informed judgment of the (specialist) employment tribunal. There is no basis in principle for the proposition that only an uninterrupted break of 20 minutes can afford an equivalent benefit in that sense; and the provision for a collective or workforce agreement to make some different arrangement would be meaningless if that were so. I can see no reason why a single uninterrupted break of 20 minutes will always be better than, say, two uninterrupted breaks of 15 minutes one-third and two-thirds through the shift. The evidence referred to at para 28 above provides other illustrations of how different kinds of rest may be thought appropriate in particular cases.

Moreover, the Court did not construe Hughes as ruling out alternatives to a 20 minute uninterrupted break and considered that the cumulative effect of shorter breaks amounted to an equivalent rest period:-

But in any event the court does not say in terms that the 20-minute minimum period to which it refers should be uninterrupted: it simply says that the work-free period should be at least 20 minutes. I accept that in some contexts it might be natural to read that as referring to a continuous period, but there is no context here to require such a reading: there was no issue on the facts of Hughes about whether the 20 minutes which he was allowed needed to be uninterrupted, since if the period was in fact interrupted he was allowed another. (Underhill LJ) [45].

Whether the Court of Appeal decision will put the issue to rest remains to be seen. As can be seen from some of the press coverage much strong feeling was aroused and plenty of sympathy was shown for the signalman who appeared to take matters into his own hands in the earlier case. The RMT union, which supported the action, has not commented publicly on the outcome of the Court of Appeal proceedings (although it covered the EAT decision) and there appears to have been no suggestion of taking the matter all the way to the Supreme Court. However, one can surmise that negotiations may be afoot behind the scenes given that the Working Time Directive expressly authorises employers and unions to reach their own agreements within the framework of the Directive: see reg 23.