The Law Commission Consultation Paper No 194 and The Scottish Law Commission Discussion Paper No 143 LEVEL CROSSINGS A Joint Consultation Paper ii THE LAW COMMISSION AND THE SCOTTISH LAW COMMISSION – HOW WE CONSULT About the Law Commissions The Law Commission and the Scottish Law Commission were set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Right Honourable Lord Justice Munby (Chairman), Professor Elizabeth Cooke, Mr David Hertzell, Professor Jeremy Horder and Frances Patterson QC. The Chief Executive of the Law Commission is Mr Mark Ormerod CB and its offices are at Steel House, 11 Tothill Street, London SW1H 9LJ The Scottish Law Commissioners are: The Honourable Lord Drummond Young (Chairman), Laura J Dunlop QC, Professor George L Gretton, Patrick Layden QC TD and Professor Hector L MacQueen. The Chief Executive of the Scottish Law Commission is Malcolm McMillan and its offices are at 140 Causewayside, Edinburgh EH9 1PR. Topic of this consultation This consultation paper reviews the law relating to level crossings and makes proposals for its reform. Scope of this consultation The purpose of this consultation is to generate responses to our provisional proposals and consultation questions with a view to developing recommendations for reform of the law. Geographical scope The contents of this consultation paper refer to the law of England and Wales and the law of Scotland. Impact assessment An impact assessment is available to download from our websites: www.lawcom.gov.uk and www.scotlawcom.gov.uk Duration of the consultation We invite responses before 30 November 2010. How to respond Send your responses either – By email to: [email protected] Sarah Young, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ By post to: Tel: 020 3334 0279 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could send them to us electronically as well (for example, on CD or by email to the above address, in any commonly used format). After the consultation In the light of the responses we receive, we will decide our final recommendations and we will present them to Parliament. Code of Practice We are a signatory to the Government’s Code of Practice on Consultation and carry out our consultations in accordance with the Code criteria (set out on the next page). Freedom of information We will treat all responses as public documents in accordance with the Freedom of Information Act 2000 and we may attribute comments and include a list of all respondents' names in any final report we publish. If you wish to submit a confidential response, you should contact us before sending the response. PLEASE NOTE – We will disregard automatic confidentiality statements generated by an IT system. Responses will also be shared with the Department for Transport and the Office of Rail Regulation. Availability of this consultation paper You can view/download it free of charge on our website at: http://www.lawcom.gov.uk/docs/cp194.pdf. iii CODE OF PRACTICE ON CONSULTATION THE SEVEN CONSULTATION CRITERIA Criterion 1: When to consult Formal consultation should take place at a stage when there is scope to influence the policy outcome. Criterion 2: Duration of consultation exercise Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible Criterion 3: Clarity and scope of impact Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals. Criterion 4: Accessibility of consultation exercises Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach. Criterion 5: The burden of consultation Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained. Criterion 6: Responsiveness of consultation exercises Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Criterion 7: Capacity to consult Officials running consultations should seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. CONSULTATION CO-ORDINATOR The Law Commission’s Consultation Co-ordinator is Phil Hodgson. You are invited to send comments to the Consultation Co-ordinator about the extent to which the criteria have been observed and any ways of improving the consultation process. Contact: Phil Hodgson, Consultation Co-ordinator, Law Commission, Steel House, 11 Tothill Street, London SW1H 9LJ – Email: [email protected] Full details of the Gov ernment’s Code of Practice on Consultation are available on the BIS website at http://www.bis.gov.uk/policies/better-regulation/consultation-guidance. iv THE LAW COMMISSION LEVEL CROSSINGS: CONSULTATION PAPER CONTENTS Table of photographs viii PART 1: INTRODUCTION 1 Background to the project 2 Historical context 4 Scope of the project 12 Structure of the consultation paper 21 Legislative competence 21 PART 2: SCOTLAND AND WALES: DEVOLUTION AND OTHER ISSUES 22 Introduction 22 Scotland 22 Wales 28 PART 3: DISABILITY AND ACCESSIBILITY 33 Introduction 33 Accessibility and the assessment of safety/convenience of level crossings 33 Accessibility of level crossings: disabled users 33 Accessibility of level crossings: other users 43 Concluding remarks 43 PART 4: CREATION OF LEVEL CROSSINGS 44 Introduction 44 The old system: special Acts 44 The modern system: Transport and Works Act 1992 and Transport and Works (Scotland) Act 2007 46 The modern system: private and hybrid legislation 48 The modern system: powers under town and country planning legislation 49 New level crossings on existing railway lines 50 Conclusion 50 v PART 5: THE CURRENT REGULATION OF LEVEL CROSSINGS 52 Introduction 52 Railway-specific safety provisions 52 General safety regime 57 The relationship between level crossing-specific rules and HSWA 1974 64 PART 6: CLOSURE OF LEVEL CROSSINGS 66 Introduction 66 Transport and Works Act 1992 and the Transport and Works (Scotland) Act 2007 66 The Highways Act 1980 (England and Wales) 67 Closure of private level crossings 74 PART 7: THE CASE FOR REFORM 75 Introduction 75 Aims of level crossing regulation 75 Regulatory approaches 76 Analysis: the case for reform 77 Economic modelling of level crossings 79 PART 8: SAFETY REGULATION AND CLOSURE: REFORM PROPOSALS 83 Introduction 83 Safety regulation 83 Closure 93 Other mechanisms for managing change 103 Creation of new level crossings 105 Requirements in special Acts and level crossing orders 106 Heritage and private railways 107 PART 9: PLANNING: ENGLAND AND WALES 109 Introduction 109 Overview of the spatial planning system in England and Wales 109 Individual planning decisions and level crossings 111 Planning law and funding of infrastructure improvements 114 vi PART 10: PLANNING: SCOTLAND 117 Introduction 117 Individual planning decisions and level crossings 117 Planning decisions and closure of level crossings 120 Planning law and funding of infrastructure improvements 121 PART 11: RIGHTS OF WAY AND ACCESS ISSUES: ENGLAND AND WALES 123 Introduction 123 Private rights of way over the railway 123 Public rights of way 135 Possibility of a private right of way becoming a public right of way 139 PART 12: RIGHTS OF WAY AND ACCESS ISSUES: SCOTLAND 143 Introduction 143 Private rights of way 143 Public rights of way 153 Access rights under the Land Reform (Scotland) Act 2003 161 PART 13: CRIMINAL OFFENCES 167 Introduction 167 Conduct at level crossings 168 The existing criminal law 169 Reform 177 PART 14: SIGNS AND THE HIGHWAY CODE 184 Introduction 184 Signs, lights and markings on public roads at or near level crossings 184 Signs, lights and markings on private roads at or near level crossings 186 The Highway Code 186 Issues relating to signs and the Highway Code 187 PART 15: SUMMARY OF PROPOSALS AND QUESTIONS 188 APPENDIX A: MAIN LEGISLATIVE PROVISIONS 197 APPENDIX B: TABLE OF CRIMINAL OFFENCES 201 APPENDIX C: GLOSSARY 206 vii TABLE OF PHOTOGRAPHS A number of photographs are i ncluded in this consultation paper, as set out below. Page x Automatic half barrier crossing When properly used, a modern level crossing is very safe – The automatic half-barrier level crossing (AHB) at Dilston near Corbridge on the Newcastle to Carlisle line: note the flashing lights and the car correctly stopped at the white “stop” line. Photographer: Ian Britton. Page 8 Traditional level crossing on a heritage railway A traditional level crossing on a heritage railway: Blue Anchor station on the West Somerset Railway. Photographer: Adrian Copley. This work is licensed under a Creative Commons Licence: http://creativecommons.org/licenses/by-nc/3.0/ Page 11 Manually controlled full barrier crossing The manually controlled (full) barrier level crossing (MCB) operated by the signalman in the adjacent signal box at Foxton station on the Hitchin to Cambridge line: note the flashing lights. Credit: Rail Accident Investigation Branch. Page 15 Level crossing in an urban setting The level crossing in a busy urban setting: the manually controlled (full) barrier level crossing operated remotely by a signalman and monitored by CCTV (MCB-CCTV) at Lincoln High Street. Photographer: Chris McKenna. Page 17 The Hixon rail crash, 1968 “The largest single risk of catastrophic train accident on Britain’s railways” – the aftermath of the collision in 1968 between an express train and a heavy road vehicle on the automatic half-barrier level crossing (AHB) at Hixon in Staffordshire. Credit: Mirrorpix. Page 22 Automatic open locally monitored level crossing The automatic open (ungated) locally monitored level crossing (AOCL) at Garve station on the Inverness to Kyle of Lochalsh line seen from the hillside.