THE PROPOSED NETWORK RAIL (ESSEX AND OTHERS LEVEL CROSSING REDUCTION) ORDER _________________________________________ CLOSING SUBMISSIONS ON BEHALF OF NETWORK RAIL ________________________________________ 1. By this application, Network Rail seeks powers to close or downgrade rights over 561 level crossings within Essex, Hertfordshire, Thurrock, the London Borough of Havering, and Southend-on-Sea, together with associated powers, (including the acquisition of rights over land, and, to the extent necessary, deemed planning permission) to allow for the provision of diversionary routes for existing users of those crossings. 2. These closing submissions are structured as follows: a. Part 1: Overarching issues i. The case for the Order: Network Rail’s ‘strategic case’; ii. The development of the Order proposals, including alternatives; iii. The position of objectors on strategic issues, including the use of the TWAO procedure; iv. The general approach to public rights of way; v. Planning policy; vi. Road safety issues; vii. Environmental appraisal; viii. The general approach to matters relating to land acquisition ix. Funding b. Part 2: Considerations relating to individual crossings 1 Originally 60. E42 and E57 were removed from the draft Order before the inquiry opened. H03 (Slipe Lane) and E12 (Wallaces / Wallis’s) were withdrawn during the course of the inquiry. 1 c. Part 3: The Order, planning conditions, and other consequential matters; d. Part 4: Conclusion Part 1: Overarching issues (i) Network Rail’s ‘strategic case’ 3. As set out in Opening, the case for pursuing this Order is a strategic one. Through the Order, Network Rail is looking to reduce and rationalise level crossings across the Anglia route. 4. The strategic case for seeking this Order (and rationalising the at-grade crossing points on the railway) is, essentially, threefold: a. Operational efficiency of the network (including increasing resilience of the current railway, and removing constraints with a view to future enhancements); b. Safety of rail users and of those interacting with the railway by reason of the crossing points over the railway; and c. Efficient use of public funds in accordance with the obligations imposed on Network Rail, as arms-length Government Body, under “Managing Public Money”. 5. The benefits sought to be achieved, through the Order, are set out in more detail in the Statement of Aims (NR04), namely: a. Creating a more efficient and reliable railway; b. Facilitating capacity and line speed increases on the network in the future; c. Improving the safety of level crossing users, railway staff and passengers; d. Reducing delays to trains, pedestrians and other highway users; and e. Reducing the ongoing operating and maintenance costs of the railway; 2 6. The case for the Order – and for closure of crossings contained within it – is not based on any one of those objectives individually, but on a combination of those factors. It is critical to understand that level crossings are but one part of the wider railway system. The proposals contained within the Order must be considered in that context. In pursuing this Order, Network Rail was not looking at individual crossings in isolation (save in considering the proposed diversion routes) but rather taking a “systems” or “global view”.2 7. The crossings included within the Order have not been selected based on the specific risk associated with that crossing;3 a specific enhancement scheme being ‘held back’ by the presence of that crossing; or the costs associated with maintaining that crossing. The case for this Order turns on benefits to the railway which will result from reducing the number of at-grade level crossings across the Anglia route: a. enabling Network Rail to focus its resources on those at-grade crossings which cannot be closed by diversion;4 b. reducing constraints on future enhancement schemes which could impact negatively on the business case for that enhancement (and thus render it less likely to come forward);5 and c. improving the reliability, and resilience, of the network, 8. The removal of each and every level crossing will provide a safety benefit, remove a maintenance obligation, reduce costs, will make the route safer and more reliable, and make the network more suitable, or more open, to future enhancement – in turn, contributing to the fulfilment of Network Rail’s Licence obligations.6 2 Dr Algaard in XXC, in response to questions from NT, Day 4 3 As set out at para 8.24 of Mark Brunnen’s PoE, ALCRM was not used to select or prioritise crossings for inclusion in the Order. He reiterated this in XXC on Day 2 of the Inquiry. Similarly, Dr Algaard stressed in XIC on Day 2 that this project was not about ranking of risk at level crossings, it was about safety at a system level. 4 As MB explained during XXC on Day 4, by taking opportunities to eliminate risk by closing level crossings where those opportunities existed, that would mean resources could be focussed on improving level crossings where closure was not an option. Similarly, Dr Algaard stressed, on Day 4, the need for NR, as a publicly funded body, to optimise resources, and how by reducing operating costs at a systemic level by reducing level crossings, she would be able to redirect those costs. 5 As discussed by Dr Algaard in XIC on Day 2 and in XXC on Days 3 (in response to questions from MH) and 4 (in response to questions from NT) 6 On which, see Mr Brunnen’s PoE at paras 4.8 -4.11 3 9. As Dr Algaard explained in XXC,7 the strategic case for closure of these level crossings, is that it will “improve overall safety, reduce Anglia operational cost, means when future announcements are considered I have a better business case or rate of return”. As she stressed, Network Rail’s case in this regard is based on a “system view – it is not about a level crossing on its own”. 10. Network Rail acknowledges that that analysis applies to the removal of any level crossing on the network – not just those included within the Order. Network Rail further acknowledges that the consideration of whether the Order, as drafted, should be recommended for approval is not limited to those matters alone. It is acknowledged that there is a need for a ‘balancing act’.8 That is where consideration of whether the proposed alternative route is “suitable and convenient” comes into play (i.e. the requirement in s.5(6) TWA 1992). Network Rail maintains that it does not have to establish a ‘case’ for closure of an individual crossing: the case for closure of each crossing within the draft Order is inextricably part and parcel of the strategic case for the Order as a whole. The strategic case and the requirements of section 5(6) TWA 1992 11. Given the way in which NR’s case appears to have been characterised in the Ramblers’ Closing Submissions – and particularly the way in which it is said that the requirement for a “suitable and convenient” alternative route factors into its strategic case – it is sensible to set out, here, how NR says the requirement in s.5(6) sits alongside NR’s strategic case for the Order. More detailed submissions as to what is required under s.5(6) are set out below. 7 Day 2 in response to questions from MG 8 As Dr Algaard stated in XXC (Day 2 in response to questions from MG), whilst NR has not made any secret of the fact that, ideally, it would like to close all level crossings, what it has also been very clear about is that it is a balancing act in terms of working with the local community and councils in balancing all the different needs. 4 12. Network Rail’s position remains, as set out in its Opening Submissions that, if the Inspector (and, subsequently, the Secretary of State) is satisfied that Network Rail has made out its strategic case for the Order, then it follows that the only basis on which the Order could either not be confirmed, or confirmed with modifications (removing specific crossings from the Order) is if it is concluded either that an alternative route has not been provided but is required (s.5(6)(b)) or that the alternative route is not “suitable and convenient”. 13. That is not because the question of whether there is a “suitable and convenient” alternative factors into the question of whether Network Rail has made out its strategic case for the Order. It is because if the Secretary of State is satisfied that the strategic case is made out – and thus the case for the Order is made out under s.1 of the TWA 1992 - the question of whether or not a specific crossing can remain in the Order (i.e. whether Network Rail may legally extinguish the PROW passing over it) depends on whether the requirements in s.5(6) are met. 14. It is not that the Order is “justified” through the provision of a suitable and convenient alternative for an individual crossing (cf how the Ramblers – erroneously – characterise Network Rail’s case at §23 of their Closings). Rather, it is the recognition that, under the Act, even if Network Rail has made out its strategic case for the closure of the crossings in the Order as a whole, the Order may not provide for the legal closure of a level crossing, by extinguishing the PROW over it, if a suitable and convenient alternative right of way9 is required and has not been provided. That is because the prohibition in s.5(6) of the Act would be engaged. 15.