Rail time blues: the £9.4 billion railway headacheBy: Malcolm Dowden, Consultant, Charles Russell LLP

The government plans a new investment of £9.4 billion to upgrade the nation’s railway infrastructure. However, upgrading the railway to 21st century standards involves getting to grips with complicated Victorian laws. As one judge put it, the railway ‘drove steel barriers over many hundreds of miles of the English countryside’.

The law’s concern was to ensure crossing rights, fencing obligations and drainage to minimise the interruption caused to existing land use.
Few modern lawyers, other than those acting for rail promoters, have experience of the relevant law.

Consequently, there is a real need for specialist advice if property owners are to be adequately protected and compensated without imposing undue cost or delay on these economically vital improvements. The stakes are particularly high for property owners concerned to protect development potential, or where the value of business or residential property depends on the continued availability of crossings that have been used for different purposes since the crossing was originally created.

Upgrading existing lines
New investment projects include electrification of key lines, aiming to improve environmental performance and shorten journey times. Level crossings, where public highways or private easements cross the railway, are the points of greatest vulnerability. Faster trains mean greater risk. Consequently, major projects such as the East Coast mainline upgrade require widespread closure of level crossings and their replacement with modern bridges and underpasses.  Property owners’ existing easements will be closely scrutinised by expert railway lawyers, seeking to identify cases where use has gone beyond the original agreement or authorisation so that the obligation to provide a replacement is limited.

Unlike other easements, the right to cross railway lines cannot easily be extended by long use or ‘prescription’. British Transport Commission Act 1949 specifically prevents the acquisition of rights over the access or approach to stations or depots. Earlier legislation, dating back to the 1830s, creates trespass offences in terms that make it unlikely that anyone claiming a right could rely on the presumed ‘lawful authority’ found by the House of Lords in Bakewell Management v Brandwood [2004]. For railway land, the statutory language and the railway’s duty to ensure safety means that no such ‘lawful authority’ could ever have been given.

The result is that a past change from agricultural to commercial use, such as haulage depots, may be challenged as an actionable trespass on the line. Alternative provision, such as an underpass or bridge, may require negotiation of wholly new rights requiring property owners to make at least a contribution to costs to preserve the modern use.

New lines
Where schemes involve construction of new lines, the ‘accommodation’ rights created under the statutory provisions or Development Consent Order applicable to the scheme are limited. They are based on Victorian statutes which required the new railway, as far as practicable, to preserve the existing use of land divided by the new line. The right to cross the line, the railway’s obligation to fence and the adequacy of drainage provision all relate to that pre-existing use.

If there is any prospect of developing land for housing or commercial use after construction of the railway, it is essential to negotiate and secure extended rights while the new line is going through its statutory approval process. A property owner who waits, or only realises that additional rights may be required after the approval process has closed will have lost their opportunity and leverage.

HS2 – why petition?
That is as true for the schemes covered by the government’s latest announcement as it is for the London to Birmingham HS2 project, should it survive this October’s judicial review process.

Parliamentary authority for HS2 will follow the ‘hybrid Bill’ procedure. Anyone affected by the project will be entitled to petition. Crucially, the petition need not object to the scheme itself, but may seek assurances or undertakings that create or protect specific rights. A property owner seeking to protect development potential or to secure additional rights can be sure of a place at the negotiating table only by using the petitioning procedure. The risk, as many property owners have found with Crossrail, is that missing the opportunity to petition leaves them in a weak position once a scheme is approved and construction begins.
 

About the author

Malcolm Dowden is an environmental and regulatory lawyer, specialising in the clean technology and telecommunications sectors. He has experience of both contractual and legislative drafting relating to renewable energy and energy performance. Malcolm is a drummer, bodhran player and Welsh rugby fan.
www.charlesrussell.co.uk