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Law Commission Lc339 Level Crossings

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Law Commission Lc339 Level Crossings The Law Commission and The Scottish Law Commission (LAW COM No 339) (SCOT LAW COM No 234) LEVEL CROSSINGS Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty Laid before the Scottish Parliament by the Scottish Ministers September 2013 Cm 8711 £xx.xx SG/2013/205 ii THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION The Law Commission and the Scottish Law Commission were set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Lloyd Jones, Chairman, Law Commission Professor Elizabeth Cooke Mr David Hertzell Professor David Ormerod QC Miss Frances Patterson QC The Chief Executive of the Law Commission is Elaine Lorimer. The Law Commission is located at Steel House, 11 Tothill Street, London SW1H 9LJ. The Scottish Law Commissioners are: The Honourable Lady Clark of Carlton, Chairman, Scottish Law Commission Laura J Dunlop QC Patrick Layden QC, TD Professor Hector L MacQueen Dr Andrew J M Steven The Chief Executive of the Scottish Law Commission is Malcolm McMillan. The Scottish Law Commission is located at 140 Causewayside, Edinburgh, EH9 1PR. The terms of this report were agreed on 19 September 2013. The text of this report is available on the Internet at: http://lawcommission.justice.gov.uk/areas/level-crossings.htm http://www.scotlawcom.gov.uk/publications/ iii THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION LEVEL CROSSINGS CONTENTS PART 1: INTRODUCTION 1 The problem 2 Background 3 Consultation process 3 Devolution issues 5 Definitions 6 Disability and accessibility 19 Summary of recommendations 19 PART 2: SAFETY AND CONVENIENCE 23 Introduction 23 Safety at level crossings under the Health and Safety at Work etc Act 1974 24 Two gaps in the HSWA 1974 regime 30 Duty to consider convenience 34 Level crossing orders 45 Level crossing plans 51 Approved codes of practice 64 Power to issue directions 66 The application of HSWA 1974 duties to highway and roads authorities 71 Duty to co-operate 73 Enforcement responsibilities 77 iv Disapplication of statutory provisions relating to level crossings 80 Power to make consequential amendments and repeals 82 PART 3: CLOSURE 84 Introduction 84 Do we need a new system for closing level crossings? 85 European Convention on Human Rights 89 Closure procedure 91 Compulsory purchase and compensation 117 Planning permission 132 Challenging decisions on closure 138 Flowchart of closure procedure 142 PART 4: RIGHTS OF WAY: ENGLAND AND WALES 143 Introduction 143 Private rights of way over the railway 143 Closure of private level crossings 147 Creation of public level crossings by implied dedication 151 PART 5: RIGHTS OF WAY AND ACCESS ISSUES: SCOTLAND 155 Introduction 155 Private rights of way 155 Public rights of way 164 Access rights under the Land Reform (Scotland Act) 2003 167 PART 6: OTHER ISSUES 175 Introduction 175 Criminal offences 175 Signs and the Highway Code 181 v Planning law 183 Barrow crossings and other crossings 185 Open crossings 188 Level crossing design 189 PART 7: RECOMMENDATIONS 191 Part 1: Introduction 191 Part 2: Safety and convenience 191 Part 3: Closure of level crossings 194 Part 4: Rights of way: England and Wales 200 Part 5: Rights of way and access issues: Scotland 201 Part 6: Other issues 203 APPENDIX A: DRAFT LEVEL CROSSINGS BILL 204 APPENDIX B: EXPLANATORY NOTES FOR LEVEL CROSSINGS BILL 254 APPENDIX C: DRAFT LEVEL CROSSING PLANS REGULATIONS 284 APPENDIX D: EXPLANATORY NOTES FOR LEVEL CROSSING PLANS REGULATIONS 292 APPENDIX E: ADVISORY GROUP MEMBERS 295 vi THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION LEVEL CROSSINGS To the Right Honourable Chris Grayling, MP, Lord Chancellor and Secretary of State for Justice, and the Scottish Ministers PART 1 INTRODUCTION 1.1 In this report we make recommendations for the reform of the law relating to level crossings in Great Britain. 1.2 A level crossing is a place where a railway is crossed by another type of way on the same level. There are about 7,500 to 8,000 level crossings in Great Britain.1 There is inevitably risk on every level crossing: trains are heavy pieces of machinery, often travelling at high speeds, and usually unable to stop within the distance that the driver can see ahead. Drivers, pedestrians, wheelchair users, cyclists and horse-riders all present risks when crossing the railway. That risk can be managed to reduce the danger to as low as reasonably practicable. However, an average of 12 people died in accidents on level crossings each year over the last ten years.2 Trends in level crossing safety (source RSSB) 25 Weighted injuries Fatalities 20 17.7 15 14.1 13.6 13.2 14.0 11.0 10.8 FWI 9.9 10 7.2 5.2 5 0 1 This includes some 1,800 public vehicular crossings and an estimated 1,000 to 1,500 level crossings on heritage railways. This figure was estimated by HM Railway Inspectors. 2 Rail Safety and Standards Board (RSSB), Annual Safety Performance Report 2012-2013, pp 179, 187. Great Britain’s railway safety record compares well with other countries in Europe and with other methods of transport. See, for example, Rail Safety and Standards Board, Annual Safety Performance Report 2012-13: Key Facts and Figures, p 8, showing lower risk for rail travel than any means of road transport; and p 9, showing that the UK has the lowest number of train fatalities of any of the ten countries with the largest railways: http://www.rssb.co.uk/SPR/REPORTS/Documents/ASPR_2012- 13_Keyfactsandfigures.pdf (last visited 1 September 2013). The meaning of weighted injuries is explained in Appendix 10 to that report at p 233. For fatality statistics over a longer period, see Andrew W Evans, “Fatal accidents at railway level crossings in Great Britain: 1946-2009” (2011) 43 Accident Analysis and Prevention 1837-1845. 1 1.3 Level crossings represent a significant source of risk on the railway to members of the public. Risk to members of the public by accident type (source RSSB)3 Trespass 44.3 Pedestrians struck by train at LX 5.9 Train collisions with RVs at LX 3.0 Other accidents at LX 0.6 Other public accidents 2.1 Fatalities Assault and abuse 0.9 Weighted major injuries Weighted minor injuries Train accidents: other types 0.9 Weighted shock/trauma 0 5 10 15 20 25 30 35 40 45 50 SRM modelled risk (FWI per year) 1.4 Physically, a level crossing might be no more than a gap in the fencing along the railway or a stile where people can climb the fence to cross the railway, or it might be a vehicular crossing with automatic barriers controlling traffic. Level crossings involve many areas of law, including railways, highways and roads, health and safety, property, planning and criminal law. 1.5 In this project we have examined the legal framework for the regulation of level crossings with a view to its modernisation and simplification. We make recommendations in this report to reform the framework so that it is more coherent, accessible and up-to-date, allowing for better regulation and the reduction of risk. Many of our recommendations are given effect in the draft Level Crossings Bill and draft Level Crossing Plans Regulations to be made under section 15 of the Health and Safety at Work etc Act 1974 (HSWA 1974).4 THE PROBLEM 1.6 The legislation governing level crossings is complex and antiquated, much of it dating back to the nineteenth century when the main railways were constructed under individual local Acts, called special Acts. Today, the relevant legislative provisions are contained in a combination of public general Acts, private Acts, bye-laws, and subordinate legislation in the form of Orders and Regulations, many of which have been amended heavily over the years. Some of the Acts have been partially repealed and some of their provisions have become spent or obsolete. It is not always clear which legislative provisions apply and which take 3 Rail Safety and Standards Board (RSSB), Annual Safety Performance Report 2012-2013, p 128. This table excludes fatalities resulting from suicide. 4 The draft Level Crossings Bill and draft Level Crossing Plans Regulations are contained in Appendices A and B to this report. 2 precedence. 1.7 The procedure for making changes to the protective measures at level crossings is cumbersome and expensive and the relationship between the various safety regulation systems lacks clarity. Poor co-operation between those responsible for level crossings can prevent improvements in efficiency and prevent crossings from being made convenient for all users. 1.8 It is difficult to close level crossings. Closure can be the best way to reduce risk and increase the efficiency of both road and rail networks. There is no single procedure designed for the closure of level crossings. The current procedures available for closure only apply in limited circumstances and they can be complicated and time-consuming. 1.9 The Department for Transport described the current legislative arrangements as: … too complex, making it difficult to identify which parts were still relevant and which were redundant. Even when identified as applicable, the actual legislation can be difficult to locate, as well as being outdated and unclear once found. This can make effective management of level crossings (including rights of way and highways) difficult and give rise to safety concerns.5 BACKGROUND 1.10 The project to review the law relating to level crossings was recommended by the Department for Transport as part of the consultation on the Law Commission’s Tenth Programme of Law Reform, following concerns expressed by the Office of Rail Regulation as the safety and economic regulator for the railways.
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