Law reform on track
The Law Commissions have published a joint report on the complex but little known area of law dealing with level crossings. The lead Scottish commissioner explains its aims
The recent joint Report of the Law Commission for England and Wales and the Scottish Law Commission on Level Crossings (Law Com no 339; Scot Law Com no 234, available at www.scotlawcom.gov.uk/) deals with a hitherto little known area of law. For whilst a book on contract, property or family law can easily be obtained from a law library, the eyebrows of the librarian are likely to be raised if a request is made for a book on level crossings law.
As well as being little known, the area is also incredibly complex. For while rail is largely reserved to Westminster, roads are largely devolved to Holyrood. Further, most level crossings in Scotland do not involve (public) roads. Rather they are “private level crossings”, typically to enable farmers to traverse the track in rural areas. Hence the reform project necessarily had to involve private law as well as public law. Relevant health and safety law had to be mastered. Compulsory purchase and planning law had to be engaged to deal with the situation where there is to be a plan to replace a level crossing with a bridge. And specifically in Scotland, a project impacting on access had to be considered in the context of the Land Reform (Scotland) Act 2003. Therefore the project was challenging. But it had a classic law reform aim: to modernise and simplify the law.
This article attempts to summarise the main recommendations made by the Commissions, and its structure follows that of the draft Level Crossings Bill appended to the report. Part 1 of the draft Bill deals with safety and convenience of users of level crossings. Part 2 deals with closure of level crossings. Part 3 deals with access rights etc in Scotland. Finally, Part 4 deals with rights of way.
Safety and convenience
Part 1 of the draft Bill seeks to bring the regulation of safety at level crossings entirely within the ambit of the Health and Safety at Work etc Act 1974, as opposed to the current law where safety requirements can be made in a specific order under the Level Crossings Act 1983 or in the special Act establishing the relevant railway. It also imposes general duties on railway operators, roads authorities and ministers to co-operate and consider the convenience of users of crossings when making decisions relating to crossings. Ministers are given the power to issue directions in relation to individual crossings, imposing requirements which they consider necessary or expedient for the safety and convenience of users of the crossing. The Office of Rail Regulation is enabled to issue codes of practice under the 1974 Act, in the same way as the Health & Safety Executive can issue these in other areas.
Part 2 introduces a bespoke compulsory closure procedure for level crossings. Under the current law, in the absence of consensus among the relevant parties, recourse has to be made to the Transport and Works (Scotland) Act 2007 procedure. It is aimed at larger transport projects than the closure of an individual level crossing.
In Scotland the decision-maker in relation to the new procedure will be the Scottish ministers. They may order closure where it is in the public interest to do so. Only railway operators and local roads authorities may make applications for a crossing to be closed. The effect of a closure order will be to extinguish all rights of way over a crossing. But it will be possible for the order to be conditional on an alternative route such as a bridge or an underpass being provided. Compulsory purchase powers may be conferred to enable the construction of such bridges or underpasses, in which case the draft bill engages general compulsory purchase law in relation to compensation and the like.
Mention should also be made of a Scotland-only provision tucked away in Part 4 of the draft Bill. Under the Title Conditions (Scotland) Act 2003, the Lands Tribunal for Scotland has jurisdiction to vary and discharge servitudes and other defined title conditions. Statutory private rights of way across railways constituted under the Railways Clauses Consolidation (Scotland) Act 1845, and similar special Acts establishing particular railways, are very like servitudes of way. These rights are typically held by farmers or other rural landowners whose land is bisected by the track. The draft Bill therefore amends the definition of “title conditions” to extend it to such statutory rights. This will provide a useful alternative procedure for closing private crossings where no replacement is required.
Currently the Land Reform (Scotland) Act 2003, Part 1 is not explicit on whether the access rights it confers apply to railways. The Scottish Outdoor Access Code, p 13 states that they do not. What s 6(1)(d) of the 2003 Act does do is exclude access rights where their exercise is prohibited by other legislation. Given the criminal trespass provisions which apply to railways, it appears that access rights are excluded. Part 3 of the draft Bill would amend the 2003 Act to make this certain, although this would not apply if the crossing is part of a core path route. Clearly the public could also continue to use a crossing involving a (public) road where necessarily there is a public right of way across the railway.
The Commissions were, however, mindful of the need to promote access to land in Scotland and therefore made two further recommendations. First, any interested party may apply to the Scottish ministers to designate an existing private level crossing as available for 2003 Act access rights. Secondly, application may also be made to ministers to order the creation of new (non-vehicular) level crossings to promote 2003 Act access rights. In both cases ministers must be satisfied that granting the application is necessary for the enjoyment of access rights generally in the local area. It would also be open to ministers to refuse a particular application for safety reasons.
Rights of way
Part 4 of the draft Bill generally excludes the creation of servitude rights of way and public rights of way across railway tracks by positive prescription. This is effected by amending the Prescription and Limitation (Scotland) Act 1973. The policy is to promote safety and to prevent rights to cross the railway being established at unauthorised places. The provision is prospective only.
Two provisions relating to statutory private rights of way under the 1845 Act, s 60 and similar provisions under special Acts (mentioned above) should be mentioned. First, the draft Bill provides that such rights can be extinguished permanently by agreement between the holder and the owner of the railway track, the latter typically being Network Rail. The existing law here is unclear. Secondly, the draft Bill resolves another current uncertainty by providing that such rights can be lost by the long 20-year negative prescription, like servitudes of way.
The report is currently being considered by ministers.
Dr Andrew Steven was the lead commissioner at the Scottish Law Commission on the level crossings project