The issue of safety at level crossings continues to attract intense media scrutiny due to a number of high profile incidents and a constant stream of ‘near miss’ CCTV footage featured on news items and YouTube. In 2013 there were 10 fatal accidents at level crossings and 10 fatal collisions between trains and road vehicles (see Rail 741, below).
On 21 January 2014 the BBC reported that Network Rail had closed 10% of level crossings since 2010 alone:-
http://www.bbc.co.uk/news/uk-25820925
And in early February 2014 Rail magazine reported that Network Rail was set to mark the closure of the 750th crossing since the beginning of a closure programme began: see Rail 741 (5-18 February 2014) 12.
The dangers of level crossings are obvious and Network Rail has an ongoing programme of replacing crossings with bridges or underpasses wherever possible. However, it will not prove possible to eliminate all crossings and it may be many years before the crossing replacement programme is complete. In the light of the acute safety issues law has a vital part to play both in terms of managing existing crossings and governing the process for their replacement or closure. In 2008 the Law Commission was asked to investigate the issue by the Department for Transport following concerns raised by the Office of Rail Regulation. In particular, it was felt that the existing regime was fragmented and governed by too many different parties working to different standards and objectives.
The Law Commission published its report in September 2013, ‘Level Crossings’ (Cm 8711) where it proposed streamlining existing legislation pertaining to level crossings and bringing it under one roof. The report is accompanied by a draft Level Crossings Bill and a draft set of Level Crossing Plan Regulations:-
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/264098/8711.pdf
The main headline proposals are as follows:-
- Replacing the existing fragmented legislation with a single statutory regime;
- Bringing level crossing regulation firmly within the scope of the Health and Safety regime;
- The establishment of ‘Level Crossing Plans’ in place of Level Crossing Orders;
- Increasing the role of the Health and Safety Executive alongside the Office of Rail Regulation;
- Increased consultation rights in the management of crossings;
- Particular focus on the ‘convenience’ of particular user groups including disabled people;
- A single codified regime and procedure for the closure of crossings and their replacement with bridges or underpasses where appropriate;
- A tidying up of property rights and easements pertaining to level crossings.
BACKGROUND
Part 1 of the report sets out the background to the investigation and identifies the main issues. In particular, the Commission refers to the antiquated nature of much of the legislation. Powers and duties, which can be traced back to the original private Acts of Parliament authorizing the construction and use of particular railways, have been overlaid by subsequent attempts at codification such as the Level Crossings Act 1983; this has led to a great deal of complexity (see below). The Law Commission also elected to exclude tramways from the definition of railways for the purposes of its investigation and subsequent recommendations. This is because tram systems are designed to enable trams to negotiate other modes of traffic in a manner which main line trains clearly cannot.
SAFETY AND CONVENIENCE
Part 2 of the report focuses on safety and convenience and highlights the afore-mentioned fragmented nature of the existing system. Aside from the private Acts authorizing the construction and operation of the original lines (most of which date back to Victorian times) there are parallel, and potentially conflicting, mechanisms for governing level crossings. Ministers are empowered to make orders under the Health and Safety at Work Act 1974 (HSWA 74) and the entirely unrelated Level Crossings Act 1983. The Law Commission recommends moving the regulation of level crossings entirely under the Health and Safety umbrella and that regulations pertaining to the design and operation of level crossings should be made under section 15 HSWA 74. This sets out the general powers of the Secretary of State to make regulations in all health and safety matters:-
http://www.legislation.gov.uk/ukpga/1974/37/section/15
The applicability of the Health Safety at Work Act 1974 is set out in section 9 of the draft Bill.
Reasonable Practicability
The Health and Safety at Work regime is underpinned by the concept of reasonable practicability. In Edwards v National Coal Board [1949] 1 All ER 743, 747E-F, Asquith LJ offered the following definition of reasonable practicability:
‘ “Reasonably practicable” is a narrower term than “physically possible” and it seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.’ [emphasis added]
The Commission did not accept an argument, put forward by Professor Andrew Evans of Imperial College London that the ‘gross disproportion’ test goes beyond what is necessary to achieve an acceptable level of safety at level crossings and could lead to over investment in that area (at the expense of other road safety projects) and a proliferation of over engineered solutions. The Commission concluded that the rail industry was already well accustomed to working to this higher standard and tended to follow it even where the Health and Safety at Work regime did not apply. In the interests of clarity and consistency, the standard should be adopted as the norm in the regulation of level crossings. In fairness to Professor Evans, this was not in fact the point he was making. His argument was not that the industry was unaccustomed to the exigencies of the Health and Safety at Work Act or that it has not hitherto been used in level crossing matters, rather, that it is not necessarily the most effective standard to apply in all level crossing safety matters. However, the Commission was of the opinion that, in the interests of certainty and clarity, the high standard set by HSWA 74 should apply at all times; even if, it would seem, this could lead to a degree of gold plating:-
‘A single modern safety regime would be clearer and more accessible, would remove the potential for conflicting requirements and would sit more comfortably with the health and safety regulation across the railway, road and other industries.’ (para 2.22).
Convenience of Users
Moreover the Commission proposed that there should be a legal duty to consider the ‘convenience of users’ when deciding how a particular crossing should be managed. The report gave examples of specific crossings where ‘down time’ (the time during which the crossing stops traffic and pedestrians etc to allow train movements) is 45 minutes in the hour much to the inconvenience of those trying to cross the line. There must also be a duty to consider the needs of users with special requirements such as those with mobility issues or horse riders. This duty is reflected in section 2 of the draft Bill which also contains a provision enabling users to apply to the High Court for a review of decisions which do not sufficiently, in their view, take their needs into account. This is an unusual provision in that it establishes a statutory right to judicial review within the context of the legislation (section 3 draft Bill). There is a limitation period of one year from the date of the decision which is much longer than the normal judicial review limitation period of 3 months (now reduced to 6 weeks in planning matters). Presumably it was felt that this method of review would be cheaper than setting up a specialist tribunal from which there would probably have to be a right of appeal to the High Court in any case.
However, as might be expected, although the draft Bill establishes a duty to consider the convenience of all users, it does not mean that their needs would have to be catered for in all instances. The duty does not apply if it would be impracticable or unreasonable to make special provision for a particular group of users in a particular case. The use of this qualification is commensurate with the Health and Safety tenor of the proposals.
Level Crossing Plans
In terms of the actual regulation of particular crossings and decisions relating to which type of crossing to install and what equipment and technology to use the Secretary of State has hitherto issued Railway Crossing Orders under the Level Crossings Act 1983. For the most part these are tailored to specific crossings and the Commission counted around 2000 railway crossing orders in total. The main problem with these orders is that it is very difficult to effect generic changes applying to all crossings when, for example, a new technology becomes available such as cameras designed to catch motorists who fail to obey the warning lights. Although the 1983 Act contains the machinery to make generic orders, the effect of doing so would be to nullify the existing order. The solution proposed by the Law Commission is to replace level crossing orders with ‘level crossing plans’. The HSWA would be used to set out generic standards and impose the overarching requirement of ‘reasonable practicability.’ However, interested stakeholders (such as Network Rail and Highways Authorities) would incorporate these standards in voluntary crossing plans designed to address local issues such as ‘down time’ problems etc. There are two interesting features of this proposal:-
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The use of the term ‘voluntary’.
- The fact that existing level crossing orders will not automatically convert into crossing plans and will all be repealed three years after the legislation comes into force.
The plans are voluntary only in the sense that they afford flexibility in terms of how a crossing is managed. However, the party responsible for a crossing (whether it is Network Rail, a heritage railway operator or a company owning its own factory sidings) will have to ensure that the crossing meets the overarching requirements of HSWA. Although existing orders would not automatically convert into crossing plans, in practice it is likely that the existing order would provide the starting point; even though it would have to be formally submitted as a crossing plan. The hope is that this approach will make it far easier to adopt modifications than the old procedure which necessitated a new crossing order. Effective level crossing plans would demand close cooperation between rail and highways authorities and the Commission recommends that this should be a legally enforceable obligation. This could be achieved through modification of the Railways and Other Guided Transport Systems (Safety) Regulations 2006. Moreover, the drawing up of level crossing plans should include a consultation process enabling all users and interested parties to express their opinions. For example, modifications to farm crossings should obviously require consultation with farmers and their representative bodies.
The Commission appended to its report an entire draft set of Level Crossing Plan Regulations which are expressed as being based upon, inter alia, section 9 of the draft Level Crossings Bill (which gives effect to the generic power under section 15 HSWA to make regulations and other arrangements). These contain detailed procedures for the drafting and approval of plans in addition to consultation rights for interested parties.
It should also be borne in mind that sections 4 to 8 of the draft Bill are devoted to level crossing directions which sound very similar to level crossing orders. They enable the regulator to impose requirements in respect of a particular crossing. The relationship between directions and level crossing plans is not entirely clear, although one can assume that ultimately a centrally imposed direction would ‘trump’ a crossing plan. In paragraph 2.29 the report states that a direction could not be used in place of a plan. However, in paragraph 2.30 it is suggested that the threat of a centrally imposed direction could operate as an inducement for the relevant parties to agree a plan. This indicates that as a matter of last resort a direction could operate in place of a plan. The Law Commission clearly struggled with crafting regulatory instruments which could blend bespoke local requirements with centrally imposed standards. It is not clear whether this combination of directions and plans is the solution. Could a rail company simply drag its feet, by relying on an old crossing order as a template for its crossing plan, until told to do something more radical by way of a direction? The efficacy of crossing plans could very well depend upon the vociferousness of local users and the extent to which they would be prepared to use the judicial review mechanism to achieve a more effective plan.
Enforcement
As regards enforcement the Commission noted that this was currently split between the Health and Safety Executive (HSE) and the Office of Rail Regulation (ORR). The Commission recommended that the ORR should retain responsibility for taking enforcement action in respect of risks arising from the railway, whereas, the Health and Safety Executive should investigate all other risks (see para 2.287). It would be left to the Secretary of State to clarify the demarcation lines between the two bodies in regulations. This distinction is not particularly clear; level crossings are potentially dangerous because they bring rail and non-rail users into possible conflict and any enforcement body needs to consider all risks from whatever source.
The draft Bill contains little guidance on the relationship between the HSE and ORR in terms of enforcement. The Secretary of State must consult with the ORR before issuing a level crossing direction (section 5 draft Bill). However, there is little by way of clarification regarding the enforcement of directions. It could be the case that the status quo, entailing overlapping jurisdiction between the HSE and ORR, is maintained until such time that the Secretary of State elects to clarify the relationship by way of regulation. Whether there is a need to set in stone the relationship between the two bodies in this way is open to debate. The Commission refers to the fact that the HSE and ORR have already agreed a memorandum of understanding regarding their respective responsibilities (see para 2.288). Another option (which is not in the report) could entail the two bodies pooling their resources to establish a specialist Level Crossings Inspectorate along the lines of the Rail Accident Investigation branch.
CLOSURE
Part 3 of the Report deals with the closure of level crossings. The Commission notes that there are a range of disparate powers currently in force relating to the closure of level crossings stemming from a number of statutes including the Transport and Works Act 1992 and the Highways Act 1980. The Commission proposes replacing these with a single statutory procedure to be set out in new legislation. The Commission emphasised the need for consultation of all interested parties and the imperative of complying with human rights legislation on the right to property and the right to family life. These rights could be engaged in some cases because bridges and underpasses require more land than level crossings and may necessitate the use of compulsory purchase powers. The railway operating company and the highways authority would be in a position to apply for a closure order and the Secretary of State would be the competent authority. This would trigger a detailed consultation procedure and necessitate a public hearing, presumably to be conducted by a Department for Transport inspector, in contentious cases. The closure procedure is dealt with in Part 2 of the draft Bill.
RIGHTS OF WAY
Part 4 of the Report focuses on anomalies and tangles which have arisen in respect of rights of way issues relating to level crossings. Rather alarmingly the report refers to the acquisition of an easement across a railway by prescription. This could further hinder the closure or moving of crossings and may not be conducive to safety. The Commission recommends a statutory prohibition on all such prescriptive easements amongst a range of other measures which are set out in Part 4 of the draft Bill.
LEGISLATION
As will be apparent from the forgoing, a draft Level Crossings Bill and a set of Level Crossing Plans were appended to the report. The Law Commission’s Paper has been laid before Parliament but as yet no new legislation has been presented. This is probably due to the fact that the Commons Transport Select Committee is currently conducting an inquiry into level crossing safety. The first hearings were conducted on the 21 October 2013:-
And the second session was held on 4 November 2013:-
It is likely that the Law Commission’s findings will feed into this process.
COMMENT
The Law Commission Report and draft legislation is a welcome development in the field of level crossing safety. However, the Commission clearly found this to be a much more difficult exercise than it may originally have envisaged. A five year investigation has produced a lengthy and detailed report accompanied by complex draft legislation.
A coherent and unified closure procedure would be an essential aspect of any new regime. The closure of every level crossing requires the use of ministerial powers and the drafting of a closure order under, for example, the Transport and Works Act 1992. For an example see the closure order pertaining to the Seaham level crossing:-
http://www.legislation.gov.uk/uksi/2013/533/contents/made
However, notwithstanding the difficulties of the current closure procedures. Network Rail has been continuing apace with its closure programme. It is not clear whether any new legislation will be on the statute books in time to assist with this programme.
As regards the regulation of existing crossings, the report makes a concerted effort to make the regulatory process more flexible and receptive to innovations in technology. In a striking example the Commission quoted a case in which, in order to take the very simple step of replacing conventional bulbs in warning lights with brighter LED bulbs, Network Rail had to secure an undertaking from the ORR that it would not take enforcement action for breaching the relevant level crossing orders (see para 2.122). Assuming that the proposals reach fruition in legislation, only practice will tell if the new regime succeeds in delivering this greater flexibility.
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