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.

 

Rural crossings and rights of way

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

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

Background

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

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

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

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

The chronology of events

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

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

The legal arguments

Incompatibility 

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

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

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

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

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

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

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

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

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

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

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

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

Point in time at which material factors should be considered

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

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

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

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

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

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

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

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

Illegality

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

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

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

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

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

The ‘cul-de-sac’ issue

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

Comments

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

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

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

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

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