In early 2017 Network Rail applied for a Transport and Works Act Order (TWAO) which would close or modify public rights of way at over 20 locations in Suffolk. The locations chosen were mainly places where the public uses the public rights of way network to cross the railway line at level – literally stepping over the track.
The application was part of a strategy to make the rail network safer, help improve efficiency and reliability and to reduce maintenance liability. Where public routes cross the railway, trains have to slow down for safety reasons. If there is no crossing point, trains can continue without restriction, logically contributing to a faster and therefore more efficient service. The locations contained in the 2017 application had been selected following a period of public consultation during 2016, which looked at the potential for changes to the network at a greater number of locations than those selected for the final application.
The application for closures in Suffolk using a TWAO was reflected in similar applications for closures in Cambridgeshire and Essex, and was thought to be a new initiative. The Highways Act 1980 includes specific provisions for the closure or diversion of a route over a railway in the interests of the safety of the public, but not only does this legislation require the risk the public face when using the route to be established, for example with accident data, it also requires assessment of whether it is reasonably practical to make the crossing safe instead of altering the public right of way. This is burdensome: any route with a proven accident rate could be made safe by the installation of an underpass or a bridge could it not? Network Rail opted to use the TWAO procedure to address the matter on a more strategic level, proposing multiple changes for the operational efficiency of the railway infrastructure. One TWAO could give the power to close crossings, carry out works, divert or extinguish public routes, acquire land for the creation of new routes and/or give rights to carry out works on private land to create new routes to the required standard. Any alternative route to one being closed by the proposed TWAO needed to be ‘suitable and convenient’.
Well over 100 objections were made to the application, many from landowners seeking to defeat the changes proposed at the specific location affecting their land. The Ramblers objected to the principle of using a TWAO for the changes to the network, arguing that the Highways Act provisions were the appropriate vehicle. Suffolk County Council supported the principle of the order, wanting better rail services for Suffolk, but objected to some proposals on the grounds that suitable and convenient alternative routes were not offered, sought modification of other proposals and asked for a commuted sum to offset future maintenance costs.
The public inquiry into the application lasted seven weeks, between 13 February and 25 May 2018, and saw the inquiry move between venues in Bury St Edmunds, Ipswich and Newmarket. Evidence was given by nearly 40 witnesses.
The decision has taken some time to arrive, being issued by the Secretary of State for Transport at the end of November 2020. The Inspector’s report to the Secretary of State runs to some 343 pages. The Secretary of State’s decision on the matter is to accept the principle of the use of the legislation and make the order applied for, but with modifications. The modifications include the removal of changes at 13 of the 22 locations in the order application, leaving 9 to proceed either as proposed or with modification.
We acted for two landowners affected by the proposals and represented them at the public inquiry. We are pleased to say both of these changes were removed from the TWAO by the Secretary of State, and the public rights of way network remains unaffected at these locations. No new alternative routes have been imposed on our clients’ land in consequence.
The Secretary of State’s decision can be appealed to the High Court. Whether Network Rail or any other party will do so remains to be seen. It has been a long trek – or track – to reach this point and, given that less than half the closures remain in the order, no doubt Network Rail will be considering the decision carefully.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.