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Lxinfo magazine - Safety spotlight
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The “Safety spotlight” section of LXinfo takes stories with parallels in other parts of the world. This month we look at a story which should be of world-wide interest.

Bringing legislation originating in the 19th century up-to-date is a challenging brief and one that the Law Commission for England and Wales and the Scottish Law Commission have been jointly working on for several years.

Now, they have published a comprehensive consultation document that should be essential reading for all those working on level crossing issue in Great Britain. Indeed, it is worthy of reading in other jurisdictions as there are many where level crossing legislation has not been reviewed for many years; but, clearly needs to be.

It is commendable that the law commissions have not just looked at the issue within the narrow confines of current arrangements in Great Britain. For example, the consideration of safety interface agreements draws heavily on current Australian thinking.

Law Commission for England & Wales logo
Scottish Law Commission logo

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
 
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