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United Kingdom: Law Commissions publish consult on level crossing legislation

Level crossings present the largest single risk of catastrophic train accident in Great Britain.

In a consultation launched on July 22nd, 2010 the Law Commissions of England and Wales and of Scotland are seeking views on how the legislative framework governing the use, management and, where appropriate, closure of level crossings can be improved and safety risks reduced.

Regulators, owners and operators of Britain’s 8,000 level crossings who want to modernise crossings and enhance safety, struggle to do so within a framework of laws that are out-dated, complex and hard to understand.

The Commissions have examined the laws covering level crossings from the widest angle, reviewing the laws that govern health and safety, highways and roads, land, planning, crime and disability discrimination, as well as railway law. They are keen to hear comments on topics such as rights of way, access to land, signage and disability issues, as well as ideas on how to encourage greater collaboration among those with an interest in level crossings.
The aim is to recommend reforms that will create:

more efficient and cost-effective ways of operating, modernising and, where appropriate, closing crossings
a better, more coherent safety regime
greater balance between the interests of rail and road users
modern solutions for regulating risk.

The document proposes a new procedure for level crossing closure orders to allow for closure of both private and public level crossings.

The powers available would include: compulsory purchase and stopping up and diversion of highways/roads. The railway operator, highway/roads authority, planning authority, ORR, and others would be able to apply for an order, which would be made by the Secretary of State, the Scottish Ministers or the Welsh Ministers, as appropriate.

The procedure should include strict time limits to enhance predictability. Proposals for closure could be made with or without replacement. The Commissioners provisionally think that there should be a list of criteria for the decision-maker to take into account in determining an application for closure, but they ask consultees for views.

The report also suggests that the current regulatory regime should be reformed as it does not sufficiently recognise the potentially competing interests affecting level crossings and does not adequately cater for all level crossings.

And it proposes that the regulation of safety at level crossings should be governed entirely by the general scheme of the Health and Safety at Work Act, 1974.

The regulatory regime should include appropriate and proportionate procedures for the permanent closure of level crossings including extinguishing rights of way over crossings with or without diversion or replacement by a bridge or underpass. Such procedures should allow the economic costs and benefits in relation to each level crossing to be taken into account in reaching a decision about closure or replacement. Economic analysis should not, however, be the only criteria taken into consideration.

Should there be a list of factors to be taken into account in considering an application for a level crossing closure order? The Commissioners would welcome the views of consultees on the following list of factors:

Safety of users of the crossing (including information as to the incidence of accidents at the level crossing)
Costs involved in maintenance of the crossing compared with costs involved in closing or closing and replacing the crossing

The effect of closure as opposed to retention (in the case of public level crossings) on the efficiency of the rail and road networks
The effect (in the case of public level crossings) on the integrity of the network of non-vehicular public rights of way
The effect of closure compared to retention of the crossing on the local community
The effect on those holding private rights over the crossing
The usability of the level crossing or its potential alternatives for all level crossing users
The convenience of level crossing users; and the effect on the environment and local amenity.

Another area where the Law Commissions are seeking input is whether or not there should be a requirement for road and rail authorities to enter into safety interface agreements as are taking hold in Australia.

Sir James Munby, the Chairman of the Law Commission for England and Wales, said: “It is no longer appropriate that the legal framework for level crossings should be based on 19th century private legislation. We need to find ways of bringing level crossing law into line with modern legislation.”
Professor George Gretton of the Scottish Law Commission added: “The law of level crossings may be an obscure branch of the law, but level crossings cause very real problems both for the railways and for road users, vehicular and non-vehicular.
“Until now the law has never been subject to a general review. This gives us an opportunity to put the law into a satisfactory shape. We very much hope to hear the views of individuals and organisations about what the law should look like in the future.”

The Commissions seek responses by November 30th, 2010. The consultation paper, “Level Crossings”, can be found on the Law Commissions’ websites at: http://www.lawcom.gov.uk/level_crossings.htm and http://www.scotlawcom.gov.uk/html/discussion_papers.php

Australia: National Rail Safety Regulator from 2013
One of the most significant advances in the harmonisation of the Australian rail industry is the appointment of a National Rail Safety Regulator, which will replace the current regime of separate state and territory regulators from January 1, 2013. “The whole project is a very significant reform to the industry,” said Australasian Railway Association (ARA) Director of Government Relations Phil Sochon. “Historically, the National Rail Safety Regulator is something the ARA has championed since 2004 in response to the need to reduce the significant regulatory burden on rail caused by multiple regulators. “This represents progress along a road that started with federation and the establishment of safety legislation in every state and jurisdiction.”		The agreed national legislation is to be approved by April next year to enable all states and territories to enact the necessary legislation by January 1 2013. This will allow for the lengthy processes involved in each jurisdiction. The ARA is coordinating the rail industry input into the draft legislation via a Rail Safety Regulator Working Group comprising senior representatives from major interstate operators from around the country, with advice provided by the Australia Tourism and Heritage Rail Association (ATHRA) and, Laing O’Rourke for the wider construction and maintenance sector. Industry members are being engaged through the Rail Industry Safety and Standards Board (RISSB) Safety Managers Group. The National Rail Safety Regulator will go live on January 1st, 2013 with regional offices around the nation. (July 13th, 2010)