TRANSPORT AND WORKS ACT 1992

ORDERS U= NDER THE TRANSPORT AND WORKS ACT 1992

Notes fo= r existing and prospective operators of miniature railways in <= st1:country-region w:st=3D"on">England.

DRAFT

Michael Crofts

13 October 2004

Abbreviations:

HA – Highways Act 1980

H&SE – Health & Safety Executive

HMRI – Her Majesty’s Railway Inspectorate (a branch of H&SE)

LCA – Level Crossings Act 1983

LCO = 211; Level Crossing Order

TWA – Transport & Works Act 1992

TWAO – Transport and Works Act order

For the purposes of this paper a miniature railway is taken to be a railway of a gauge less than the 350mm (13.79 inches) which is the threshold for the definition of a railway in most current legislation.

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INTRODUC= TION

This topic arose because of a statement published by a commercial supplier of railway equipment that ‘311.15mm gauge [12 ¼ inches] is the largest gauge tha= t can be open to the public without a Lig= ht Railway Order (unless crossing a public roa= d)’. In a discussion group I drew attention to the abolition of Light Railway Or= ders and their replacement by orders made underthe Tran= sport and Works Act, and I then stated th= at one does not need an order of any kind to open a public 15" gauge rail= way on private land provided it does not cross a public highway as defined in the Highways Act 1980. This led to further queries and answering these has taken some time. This brief paper is the result.

I began by speaking to the government department which d= eals with implementing TWA orders. The department is part of the Department for Transport (www.dft.go= v.uk). They produce an excellent Guidance Note describing the operation of the Transport & Works Act 1992 (“The Act”) which can be found a= t the following address:

http://www.dft.gov.uk/stellent/groups/dft_transs= trat/documents/page/dft_transstrat_022540.hcsp

The Guidance is going to be amended shortly but in the meantime I have copies in Word or PDF format if anyone has trouble in getti= ng access.

THE GUID= ANCE

The key passages that affect the issue under discussion = are on page 6 under the heading ‘Part 1: General Principl= es - Why seek a TWA order?’ = Para. 1.2 says:

‘The main distinguishing features of projects which require authorisation by a TWA order are, first, that they may involve the construction and/or use of works which affect pub= lic rights, such as a public right of way over a highway or a right of navigati= on on a river or in the sea. An = order can provide the statutory means by which such public rights may be extingui= shed or changed temporarily or permanently to accommodate the scheme - for examp= le by diverting a public right of way or stopping up a street.’

The paragraph then describes other distinguishing features which proba= bly don’t concern us. Para. 1.3 goes o= n to say:

‘Where works are to take place entirely on land owned by the scheme's promoters, statutory authority= to undertake the works may not be necessary. However, even in these circumstan= ces it may still be desirable to obtain a TWA order. The granting of statutory authority means that the works will enjoy the status of a statutory undertaking, for example in planning law, along with the privileges accorde= d by such status. An order also pr= ovides …. the defence of statutory authority against any actions for nuisance arising from the construction or operation (without negligence) of the work= s.’

On page 7 the Guidance says at para. 1.7:

‘If a prospective applicant is unsure whether a TWA order is required in respect of specific proposals, or whether certain matters might appropriately be included in an order, guidance may be sought on an informal basis from the TWA Processing Unit. It is, however, ultimately the responsibility of promoters to satisfy themselves, having taken legal advice, that they have sought all the necess= ary statutory powers and approvals that are required in order to enable their proposals to be implemented lawfully. Whilst the TWA empowers the Secretary of State to make an order in respect of certain matters, it does not require a promoter to obtain an ord= er, either for any particular matter, or at all. In other words, = the process of seeking and obtaining a TWA order is permissive, rather than obligatory. Hence, the TWA does not include enforcement pro= visions in respect of failure to obtain a TWA order or to obtain certain powers und= er an order.’

In a nutshell, a TWA order can a= llow things such as railways to affect a public right (such as a right of way) in a way that would be unlawful without an order, but it is up to you to decide whet= her to ask for one or not and it won’t be the DfT that takes action again= st you if you don’t. Also, not every kind of railway can apply for a TWA order in every possible circumstance. To understand the limitations it is necessary to look at the definitions in the TWA.

DEFINITIONS<= /b>

We need to know what is meant by a railway for the purposes of TWA.   S.67 defines ‘railway&#= 8217; as follows:-

"= railway" means a system of transport employing parallel rails which—

= (a) provide support and guidance for vehicles carried on flanged wheels, and=

= (b) form a track which either is of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),

but do= es not include a tramway;

"= carriageway" has the same meaning as in the [1980 c. 66.] Highways Act 1980, or in = Scotland the [1984 c. 54.] Roads (Scotland) Act 1984;

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A carri= ageway is defined in the Highways Act 1980 at s. 329:-

"= carriageway" means a way constituting or comprised in a highway, being a way (other than= a cycle track) over which the public have a right of way for the passage of vehicles;

So for the purposes of TWA a carriageway is a type of highway over w= hich the public has a right of way for the passage of vehicles other than cycles alone. There is no statutory definition of ‘highway’ [1]= and the established definition therefore comes from the common law. A leading author [2]= states as follows:

A highway is ‘a defined way over which = the public have a right to pass and repass’. See for example DPP v Jones [1999] 2 AC 240 at 270E, per Lord Hope…..   At common law highways are classifi= ed into three types, according to the class of traffic (which includes pedestr= ians and animals, HA 1980, s 329(1)) which may pass over them. The three types a= re footpaths, bridleways and carriageways. These broad classifications are maintained in the statutory provisions relating to highways, which also inc= lude a number of other types of highway.

There does therefore appear to be consistency in the statutes which treat carriageways= as a distinct type of highway, and set them apart from footpaths, bridleways a= nd cycle tracks.

EFFECT O= F THE DEFINITIONS

The effect of these definitions is that a TWA order can = be made for a railway which is eit= her 350mm gauge or greater, or<= /b> which crosses a carriageway - which is a defined way over which the public = have a right to pass and repass and that right extends to the passage of vehicle= s (but not including a cycle track).

If the railway is 350mm gauge or greater the Guidance cl= early contemplates the use of a TWA order to permit interference with footpaths as well as carriageways because = on page 36 it says at para. 3.8 ‘Where the draft order provides for the extinguishment or diversion of rights of way over a footpath, bridleway, cy= cle track or byway, the applicant must submit a map of a scale not smaller than 1:2500 on which the path, way or track concerned is clearly delineated. In = the case of a diversion of a right of way the map must show clearly the new pat= h, way or track.’

However= , if the railway is less than 350mm gauge and needs to interfere with a footpath (or= a cycle track) a TWA order is not the correct procedure to use because a foot= path (or cycle track) is not a carriageway.

This does not mean that a railway of less than 350mm gau= ge can cross a public footpath with impunity. It simply means that it cannot be made the subject of a TWA order. There are presumably other procedures that could grant the railway the right to cross a public footpath but the TWA is= not applicable. Further work would be needed to establish what other procedures would apply.

LEVEL CROSSINGS

According to the HMRI website [3] ‘Any level crossing on a road to which the public have access requires a Level Crossing Order’. = No definition of ‘road’ is given on this website.   On page 14 the Guidance state= s at para. 1.42: ‘….In relation to an existing railway level crossing (whether or not it is in use) protection arrangements may be authorised, and existing ones disapplied, by means of an Order under the Level Crossings Act 1983 as amended by the Level Crossings Regulations 1997 (SI 1997 No. 487).<= span style=3D'mso-spacerun:yes'> If that is the only authority requ= ired, it would not be necessary to apply for a TWA order’. This implies that for a new level crossing it is necessary to have both an LCO and a TWAO. As explained above, a TWAO is effectively voluntary, but it does appear that an LCO is not.

I mentioned that my source for this information does not define the meaning of ‘road’. This is an important omission in = this paper and further work will be needed to establish exactly what constitutes= a road for the purposes of LCOs. One is unlikely to find a definition in high= ways law where the word ‘road’ appears to lack definition and is not= a “term of art”. Of course, for a TWAO there is no need to define ‘road’ because the legislation depends on the term ‘carriageway’.

PUBLIC v PRIVATE RAILWAYS=

I have found nothing in any of the material which I have studied which suggests that any distinction is drawn for the purposes of TW= A or LCA between railways which are open to the public and those which are purely private, either passenger-carrying or freight only.

CONCLUSION

I think that the following table sets out the rules that prospective operator= s of new minor railways in England need to follow :-

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Gauge less than 350mm

Gauge 350mm or greater

Wholly on private land – no public acce= ss to any way which crosses the railway

TWAO – not possible
LCO – not required

TWAO – optional

LCO – not required

Cross= es a carriageway - a defined way over which the public have a right to pass and repass and that right extends to the passage of vehicles (but not including a cycle track= ).

TWAO – advisable to obtain this

LCO – definitely required

TWAO – advisable to obtain this

LCO – definitely required

Crosses a public right of way which is not a carriageway (eg: a footpath [4]<= ![endif]>)

TWAO – not possible
LCO – depends on the definition of ‘road’

TWAO – advisable to obtain this

LCO – depends on the definition of ‘road’

Crosses any kind of way over which the public= do not have a right of way of an= y kind – eg: a private road or private footpath but to which the public do have access by permission

TWAO– not possible

LCO – depends on the definition of ‘road’

TWAO – optional

LCO – depends on the definition of ‘road’

EXAMPLES

I am aware of several examples of railways which have been constructed since = 1983 which serve to illustrate the application (or rather non-application) of LC= Os and TWAOs to miniature railways.

The first example is a 381mm gauge railway which crosses a public footpath. Obviously a TWAO could have been applied for because the railway was over 3= 50mm gauge but the operator offered to operate trains on the basis that there wo= uld be no timetable and the trains would give way to pedestrians and as a resul= t was advised that he probably need not do so. He decided not to, but did obtain planning permission. I do not think that anyone has suggested that he is interfering with the public footpath by crossing it with his railway and therefore all seems to be well in this case.

The second example I know is a 184mm gauge railway which crosses a private road which is used by members of the public to gain access to the leisure attrac= tion on which the railway is situated. Here the local H&SE inspector initial= ly advised that a LCO would be needed but then retracted and permitted operati= ons to continue after the installation of automatic barriers. I do not know whe= ther or not the retraction was because a LCO was not actually the correct proced= ure to deal with this situation – and if so whether or not this was becau= se of the gauge of the railway or the legal status of the road.

My own railway is 381mm gauge and built entirely on private land. I chose the = site partly because it is not crossed by any public right of way. There are only three crossing places on the railway. Two of these are agricultural accommodation crossings and the third is for pedestrian access over the tra= cks to a picnic area at one end of the railway. Given these circumstances I saw= no need to apply for a TWO

DEVELOPMENT OF THIS PAPER

I would welcome assistance with the development of this paper, especially corrections of any mistakes. I would particularly like to know what is the definition of ‘road’ for the purposes of the Level Crossings Act 1983 (as amended).

All comments and advice will be gratefully received at 1@perrygrove.co.uk