Agenda item

HIGHWAYS ACT 1980 SECTION 119A - APPLICATION TO DIVERT UNRECORDED PUBLIC FOOTPATH AT BAYLEY/BAILEY LANE GRANGE OVER SANDS: DISTRICT OF SOUTH LAKELAND

[Electoral Division: Grange]

 

To consider a report from the Executive Director – Economy and Infrastructure

Minutes:

A report was considered from the Executive Director – Economy and Infrastructure regarding the Highways Act 1980 Section 119A – Application to divert unrecorded public footpath at Bayley/Bailey Lane, Grange Over Sands in the district of South Lakeland. The report advised that on the 13th August 2019 the Committee had approved the making of the order under Sections 119A of the Highways Act 1980 to divert the unrecorded public footpath that passes over the railway at Bayley/Bailey Lane, Grange Over Sands to an alternative route that incorporated the nearby railway underpass. Substantive objections had been received to the advertised order and the County Council needed to consider how to proceed with the matter. A copy of the order plan was shown at Appendix A of the report and photographs of the location were included at Appendix B of the report.

In presenting the background to the making of the Order and subsequent objections following its advertisement, the Countryside Access Officer drew members’ attention to the made order plan and photographs of the location.

The Countryside Access Officer explained that new evidence had been received (which was presented to the Committee) and the objections were arguable. He commented on the complexity of the case and the conflicting evidence which he had considered carefully. He added that as it was a finely balanced matter, it would be beneficial for all the evidence to be tested by way of a Public Inquiry. He advised on the cost implications of this and on the opportunity for the applicant to be heard by the Planning Inspectorate.

He presented a number of options for the Committee to consider on how to proceed in the case. He recommended that members approve submitting the Order to the Secretary of State for resolution and inform the Planning Inspectorate that from now on the County Council would be taking a neutral stance.

A member noted that if it was to be considered by the Secretary of State then the decision of the Committee may have little impact. He queried what would happen if the legal order was abandoned. The Countryside Access Officer advised that the crossing would have to be reopened and the legal diversion would not take place. The member then asked if this could be challenged and be referred to a Public Inquiryand could the landowner seek to make the order. The Countryside Access Officer was unsure of procedure at this point. He explained that this was a Section 119A order, specific to rail crossings and explained that there were significant differences in the legal tests and requirements between this and a Section 119 order that the Committee more frequently considered.

A member queried if the County Council took no further action and abandoned the legal order and the footpath was reopened, whether the County Council could insist that safety measures were imposed given the accidents that had taken place. The Countryside Access Officer advised that as the Highways Authority, the County Council could not do this, it was the landowner’s responsibility.

It was confirmed by the Countryside Access Officer that if the order was submitted to the Secretary of State, he/she would review all of the facts and decide whether the Bailey Lane railway crossing should be re-opened. The Solicitor advised that the railway crossing gates were currently locked/closed and legal access was restricted by a temporary Traffic Regulation Order on safety grounds and that the decision before members related to permanent closure of the route.

When commenting on the number of families using theroute to access the playground and promenade, a question was asked by a member about who had ultimate responsibility for health and safety at the crossing. The Countryside Access Officer confirmed that this was Network Rail.

A member referred to the site visit in July 2018when a number of issues, safety concerns and improvements had been raised by members. It was queried whether the applicant had undertaken work to address these issues. The Countryside Access Officer clarified that the applicant had to undertake a list of improvement work to the diversion route, including items highlighted at the site visit before the order could be confirmed and brought into operation.

The people indicated below had attended the meeting to speak, or asked a representative to speak on their behalf, under the Public Participation Scheme.

 

1          Councillor Bill Wearing – Local Member

 

I am here today to support the diversion order and the permanent closure of Bayley Lane Crossing.

 

Speaking as the Local Member and long standing resident of more than 50 years, I consider it my duty and position to point out to members the necessity to agree to this diversion and closure of the crossing on safety and general usage grounds.

 

The promenade is and will continue to be a major attraction for tourists to our Town and also a much loved area for residents to walk and enjoy the views in this part of our county.

 

I know there will be many people speaking about this application from both sides of the argument and I respect them both.

 

I am looking at this from the long view point and the fact that many more people will be using the promenade over the next few years. The public footpath diversion will meet all their needs especially relating to ease of access and managing the volume of people using the promenade in a safe and secure environment.

 

I hope members will be able to see my point of view and support the diversion and closure of the crossing.

 

2       Mr W Woods

 

Months ago you read the reports, heard from supporter and objectors and debated the application to close the railway crossing. You decided on balance, safety was paramount in protecting the public and the numerous unaccompanied children from the dangers of crossing the railway line and decided to support a closure order request.

 

The objectors to the proposed order are just repeating ‘the incident evidence statistics’. It’s not high enough to support closure and in their view the crossing could be made safer.

 

My property overlooks the crossing and the antics of pedestrians and children on the crossing amazes me. It is not the placement of the crossing which was the problem, it is the behaviour of people. No amount of additional signage etc can eliminate human behaviour. The introduction of the new quieter passenger trains greatly increases the danger.

 

I am no fan of Network Rail but I am sure if there was a solution to making the crossing 100% safe then they would not have constructed the million pounds plus underpass and agreed upgrading of the current footpath. Closure of the crossing, keeps not only the public including children safe from crossing the railway it also eliminates the incident effect on train passengers and train drivers.

 

The crossing has been closed for over a year now and there has been no public outcry as it was accepted the crossing would close once the underpass was completed, in fact the public appreciate the underpass from the car par, and to Network Rail’s credit have not indicated, the underpass could close if the diversion is not granted.

 

I used the crossing daily and if there was no underpass I would be objecting to the closure but the few additional metres is acceptable, there is no problem with the railway line, it is humans crossing it.

 

Please stick to your decision to support the diversion of the footpath. Please do not wait for the next victim’s family to address you.

 

Mr Woods made the following additional points:

 

·         He thought that nothing had changed materially since the site visit in 2018

·         He thought that a Public Inquiry was the best place to determine the outcome of the application and would be a once in a lifetime cost to the Council.

 

3          J Shapland

 

I know that many members of this Committee visited the site of Bailey Lane Crossing and the new underpass in 2018. Therefore, I am very grateful to you because you will know that five of the letters of objection to it remaining closed contain untrue facts.

 

Letter 1: the number of access points to the promenade are five at the present time not four as stated. Also it says that keeping Bailey Lane shut would reduce it to three.

 

Letter 2: States the underpass has been flooded, there are no dates and times to back up the statement

 

Letter 3: Bailey Lane has a gradient of 1:5 so was not suitable for wheelchairs and mobility scooters as the gates open outwards. Also it cites the incorrect number of access points.

 

Letter 4: The writer has currently a bad leg so I don’t this a 1:5 gradient plus a level crossing would be better than the underpass.

 

Letter 5: cites an over-reaction to the incidents. There have been two deaths – how can anyone over react to death and the repercussions to the families involved. The only way to keep the crossing 100% safe is to keep it closed.

 

Not one of the objections mentions the Sellafield train which uses the line twice a day which does not stop for anything, the times of which vary every day for obvious reasons.

 

4             R Shapland

 

In 2005 there was a proposal from Northern Rail that they would replace Bailey Lane crossing with a new underpass. This was thought to be a good thing as lots of things have changed. The pier at the bottom of Bailey Lane was demolished in 1906 and the use of the car park expanded and is now full of cars. Something therefore needed to be done to improve access.

 

The underpass opened in 2006 but Cross Hill remained open. Comments were made that the legislation dealing with the closure wasn’t precise and therefore open to interpretation this is why there are technical objections.

 

As an example, it is argued that the path from the bottom of Bailey Lane into the car park and onto the underpass is not of an acceptable condition to be used by the public. This is despite it being used for 40 years until the opening of the underpass.

 

In 4.3 of the report the District Council had registered with the Land Registry a small piece of land under the promenade which affects the legal designation at the promenade. It is under different regulations to other parts of the promenade.

 

This needs to be dealt with by transfer of the question to the Secretary of State. There has been a Public Inquiry in the past over two access points. I suggest a Public Inquiry is the way forward.

 

5          Dr Irwin (read by Councillor B Wearing)

 

Dr Irwin, a retired GP from Grange over Sands, had recently passed away and her daughter advised that her mother was very keen to make sure that the crossing remained closed.

 

Councillor Wearing read out the following statement:

 

My name is Dr Jane Irwin and I was a GP in Grange over Sands for 35 years until my recent retirement.  During that time I attended 2 fatalities at the Bailey Crossing. The first, an elderly lady, gained access to the line at the crossing and was killed about 200yds along the track.  It is to be noted that the crossing gives easy access to the track, especially for teenagers.  The second extremely distressing case was a young child who was crossing with her family on a sunny summer’s day after a visit to the playground.

 

The salient point about this crossing is that it is immediately adjacent to the main path to the playground, without even accessing the Prom.  On coming from the playground the crossing is straight ahead and looks the obvious route to town and the carpark.  People don’t realise that there is now a safer option, or just assume it is a short cut. It is a busy line with more than one train every hour.  Recently the footfall along the playground path has increased due to the opening of a new cafe on the same path.

 

Although this incident occurred many years ago, it was extremely distressing for all involved and left a blot on the reputation of our town.  The family could not believe the closeness of the crossing to the playground.  If the crossing reopens, nothing has substantially changed and this is an accident that could recur tomorrow, next week or next year.  I strongly feel that we cannot justify the risk of reopening the Bailey Crossing in such close proximity to our children’s facilities. It puts lives at risk.

 

6          M Robinson (read by J Shapland)

 

When the crossing was in use I witnessed the public, using and abusing it on a daily basis from my house which overlooks the crossing and promenade.

 

 Examples are:

 

    Groups of young people, usually girls, walking down the lane totally absorbed in their mobile phones and not stopping at the gates to make sure it is safe to cross.

 

    People crossing at the last minute in sight of an oncoming train.

 

    Someone picking blackberries inside the crossing boundaries.

 

    People stopping in the middle of the crossing to look at the view.

 

On two occasions I have witnessed a train stopping to avoid hitting pedestrians; one involved an elderly couple with a wheel chair which the man found difficult to push across the crossing. Trains are travelling around 50 miles per hour when they pass the crossing and the drivers have little or no time to react as they cannot stop several tons of train quickly to respond to something seen at the last minute.

 

One way in which the situation has changed from 18 months ago is that there are now new trains running on the line which are much quieter and therefore it is more difficult to hear them approaching.

 

What concerns me is that a percentage of the public feel that they have to cross at the last minute in front of an approaching train instead of waiting for it to pass and cross with safety.

 

Bailey Lane crossing is, therefore, no longer needed as an alternative, safer ways to access the promenade are available.  My concern is that an incident or worse still a fatal accident may happen as it did in May 1988. I strongly feel that to re-open the crossing at this stage would be a backward step.  I therefore fully support the permanent closure of Bailey Lane crossing.

 

7          G Wilson

 

I oppose the officer recommendation that the Order in question be submitted to the Secretary of State for resolution and that the Council should take a neutral stance.

 

If the committee today resolves to accept the officer’s recommendation you are letting yourselves and your community down. You are giving yourselves a let-out that’s unsupportable. The decision that the committee took to make the Order was on the grounds that Network Rail presented to you. But Network Rail is not an independent arbiter on rail safety. Network Rail is prejudiced; in some ways it’s their job to be. Network Rail has shown in a succession of locations throughout the country that they will seek the closure of such crossings almost at any cost …. because it’s their policy to do so. In pursuing that policy they seek closure of crossings in locations where even their own safety assessment doesn’t justify the closure. You should not be impressed by or afraid of that.

 

And …. You, the committee members, are not experts in rail safety; but you have not required that the Council commissions an independent assessment of the dangers asserted by Network Rail at Bailey Lane to cover that lack of expertise. The officer report that’s before you today tells you that at para. 7.3. Your duty to your communities, even to those members of the community who are passionately in favour of the closure of the crossing, is to be sure that you are not acquiescing to Network Rail without very good reason to do so. You should have reached your own informed decision … which you’ve not done; not in any way that can be identified anyway.

 

Your officer’s report lists a number of other key requirements of confirmation of this type of Order which objectors have highlighted as not having been met.

At section 6 of the officer’s report members are given the three options available to the committee. All of those options remain open to you.

 

At section 7 of the report your officer says unequivocally that ‘new evidence objecting the making of the order … leads me to advise that County Council should not continue to support the confirmation of the legal order’. But, in the light of your previous decision to have the Order made (contrary to his earlier advice), your officer feels some obligation to recommend that you send the Order to the Secretary of State … to make a decision that you are not sure on. But that’s not how it works. The Secretary of State should not be placed in the position of having to make a decision because a Council wishes to avoid doing so. The Secretary of State’s job is to deal with objections to a clear council decision, not to deal with Councillor prevarication.

 

If, as a result of the further objections to the making of the Order in question, you are no longer sure that you wish the Order to be confirmed, then you must abandon this Order. That’s option 6.1.

 

If you are as convinced as you ever were that the crossing should be closed then you should be prepared to put your money where your decision is, and support the order. That’s option 6.2. That it may cost the Council some money to do should not be a factor in your conviction.

 

To resolve to accept your officer’s recommendation to submit the order to the Secretary of State and take a neutral stance; option 6.4 … would be a giant and disgraceful cop-out.

 

Please have the courage of your convictions. Don’t avoid your responsibility. Don’t leave to the Secretary of State a decision that should be yours to take; and whose inspector will hear the apparent authority of Northern Rail and their highly paid barristers being contested by members of the community (such as me) funding themselves when they should also have the support of the Council that landed them in this position.

 

8          N Thorne (read by the Manager Development Control and Countryside Management)

 

The key points in the officer’s report are:

 

2.2 “Members have discretion [in this matter]… such discretion must be exercised reasonably”

7.2 “County Council should not continue to support confirmation of the Order”

7.6 “Network Rail do not appear to have carried out improvements as required by the legislation”

 

Officers explain that the objections have ‘substantial content and difficult to refute’.

 

A ‘neutral’ stance is not reasonably open to you in discretionary matters such as this.

 

It is now incumbent upon councillors to revisit your earlier decision by examining the objections alongside the original documents and arguments, to consider them in detail and how they impact on your original decision. Basically you should reassess the safety case with the objections, and the choice here is binary:

 

A.     You decide, like Officers, that the safety case has not been met. The Order should then be abandoned. Option 6.1.

B.    You decide, against Officer advice, that the safety case has been met and submit the Order to the Planning Inspectorate for confirmation. In this instance, you should support your own decision. Option 6.2

 

If the Council has ‘doubt’ over justifying the safety case, which it seems to have, then you should not pursue the Order any further (6.1).

 

It’s important to note that the only safety assessment carried out by CCC was prior to the July 2018 committee meeting. Officers concluded that the safety case had not been met. Councillors rejected this – but at that meeting, and in the minutes, there was no detail of the assessment you made, how it was reached, what evidence convinced you. Nothing that can now be used to support your decision.

 

Submitting the case and taking a neutral stance is not a “reasonable exercise of your discretion” (paragraph 2.2).

 

It is effectively saying ‘this crossing is so dangerous, more dangerous than any other crossing in Cumbria, that it is imperative that it is closed. However, we don’t really know why it is dangerous, so aren’t going to tell you why we think it is more dangerous than any other crossing, and haven’t actually assessed this crossing properly ourselves, or indeed any other crossing – but, despite our Officer’s opposite assessment we think it is unsafe, so here you go Planning Inspector, go and make a decision without us’. This is not a reasonable stance.

 

Yes – supporting the Order at a public inquiry is likely to be expensive for Cumbria County Council. However, this is what you have let yourselves in for. It is you, the councillors alone, who are exercising your discretion. And your conundrum now is the entirely foreseeable consequence of your previous decisions.

 

You have to deal with those decisions - you cannot just wash your hands of them. You yourselves, as councillors, must explain your decision in detail.

 

Public inquiries are expensive for all parties, including the public purse. They are not a fall back for a lack of courage of conviction to properly determine something. If supporting the case at Inquiry costs CCC money, so be it. You shouldn’t pass these costs onto others (such as myself) who will incur costs to debate your decision.

 

If Cumbria County Council cannot financially afford to support your discretionary decision – then you should instruct your officers to abandon the Order.

 

I am sure that you will appreciate that not supporting a discretionary decision is a wholly unreasonable action.

 

Officers have stated that the safety case has not been met, that a safety audit of the alternatives has not been carried out, and that Network Rail has not carried out the improvements as required by legislation. Consequently, it’s difficult to see how you can still justify your earlier decision. You cannot conclude that Network Rail have not fulfilled their legal requirements, yet still tacitly support them in their actions. If you cannot support the Order (as your Officer says), then it is appropriate to abandon it now.

 

I personally consider that you should abandon the Order, but failing that, you should support your decision properly.

 

9          G Parr

 

Grange Town Council has adopted a neutral position on this because the majority public opinion in Grange is not obvious. Everyone will be moved by any fatal accident at the crossing and will support anything that will reduce the risk. Thankfully these events have been very few, with Network Rail’s prediction of a return period probability of one death in 119 years; this means for example, that within any time span of 50 years the probability of a fatal accident is about 35%.

 

The only reason for closing the railway crossing is public safety. Within a few days of Network Rail’s illegal use of locks and chains to stop up Bailey Lane crossing, Cumbria County Council; being the agency with statutory responsibility for rights of was applied a closure order. By applying the closure order, Cumbria County Council’s implicitly declared the crossing unsafe for public use. This was confirmed by the Committee on 13 August 2019 when the diversion order was made.

 

Today, there are four options for the Committee to consider. The Committee’s stance is not neutral because its decisions have been predicated upon the crossing being unsafe; this makes option 4 tenuous as you aren’t neutral. Before option 6.2 could be adopted, decision would be needed on matters arising out of the objections to this order. Supporting option 6.3 would require unsupportable logical conditions. Because the important new information in the objections casts doubt upon the diversion order, Option 1 is the way forward. Adopting option 1 would allow full consideration of previously unknown highly relevant matters.

 

Opposition to keeping the crossing open is because it is reckoned to be unsafe. The hazard only exists when a train is passing, it’s quiet like a lane when there are no trains. There are no hazards until a train appears. Trains are timetabled. Thus, the danger can be predicted, anticipated, catered for and reduced significantly. Clearly, anything that would reduce this one hazard, and this the transient unusual danger should have been done already.

 

Without giving any reasons, Network Rail has dismissed as impossible all obvious measures that would warn of the approach. Usual methods such as warning lights, barriers, warning sounds, display screens, realignment to reduce the crossing length, have all been rejected out of hand. With reference to section 4.10 of the report to the Committee, obviously Cumbria County Council and the Secretary of State should not be satisfied that it is not reasonably practical to make the crossing safer for use by the public.

 

The prom is the major attraction to visitors to Grange and South Lakeland District Council is preparing plans to spend multi-million pounds to rejuvenate the prom and the redundant open-air swimming pool site. This will be a high boost to the town’s prosperity. Without the crossing and when the underpass is flooded, there would be two routes from the underpass car park to, say, the redesigned children’s play area on the prom. Northwards, over the bridge and back, the distance is about 2km, southwards over the bridge and back it is about 1.1km via the crossing which would always be open it is about 250m.

 

The obvious route to access the prom from the town centre is down Bayley Lane and over the crossing. Now, much about the proposed diversion is unknown or unresolved. Closure of the crossing should be considered only if an alternative is secure and the alternative is not secure. Otherwise we could fall between two stools.

 

10        A Buckley

 

 My name is Ann Buckley, I am the Liability Negotiations Adviser who submitted the s119A application and I will speak on behalf of the applicant, Network Rail.

 

Although Network Rail would prefer the Council to support the confirmation of the Order, we welcome the Officer’s recommendation to submit the Order to the Secretary of State for resolution and from then on to take a neutral stance.

The legal test for making an Order is one of Public Safety and in July 2018 and August 2019 this Committee agreed with Network Rail that it is expedient in the interest of the public using or likely to use the crossing to make the Order and voted accordingly.

 

Several of the objectors refer to the need for a Road Safety Audit as prescribed in a Memorandum of Understanding between Network Rail and ADEPT, LGA & IPROW.

 

Although your Council Officer has confirmed no audit is required at this time, Network Rail is prepared to fund such an audit if it is required in the future.

Network Rail has considered various ways to improve the safety at the crossing as demonstrated within the application, but the only way to eliminate the risk is to close the crossing. This diversion will permanently eliminate allrisk to crossing and railway users alike, withoutunduly inconveniencing members of the public. This is a requirement of Network Rail and Local Authorities and is consistent with their responsibilities under the Health & Safety at Work Act.

 

There exists nearby a safe and convenient alternative to cross beneath the railway, which was originally provided to replace the level crossing. The construction and requirement for the underpass was supported by South Lakeland District Council and Grange Town Council. If the underpass had not been constructed at that time, thiswould be the solution proposed today. In addition, the alternative route also provides a more accessible path for all members of the public, which cannot be said of the level crossing. We have agreed to work with all parties to ensure the alternative route is fit for public use.

 

I agree with the Officers comment that this is a complex case and it would be beneficial for all the evidence to be tested by way of a public inquiry and agree with your Officer’s comment that Network Rail should not be denied the opportunity to submit our evidential case before the Planning Inspectorate.

 

I therefore ask the committee to accept the officer’s recommendation.

 

 

The Chair invited members to speak about the application.

 

A member considered that evidence had been provided which highlighted the danger in the area, commenting that 2 deaths in 30 years was too many. He referred to the Sellafield train which he had not considered on previous occasions and felt that there was a strong argument to proceed to a Public Inquiry.

 

Another member commented that people dealt with danger in everyday life and that all risk could not be eliminated from life. He expressed that people would use their common sense using a special crossing or convenient place to cross. He queried how often the diversion would be used as a lot of money had been spent on a potential diversion route which may not be used. He asked whether sufficient consideration had been given to alternative crossings.

 

In stating that he had listened carefully to the statements made at the meeting and had visited the site, Mr Markley advised that he did not think that a level crossing was warranted at the location and acknowledged the money that had been spent on the diversion under the underpass. He proposed that the Committee stood by its original decision. This was seconded by Mr Turner who was convinced that the risk to safety was too great and he could not live with the potential for further deaths on the line. In reminding members of the debate at previous meetings and how he had voted in favour of the diversion order, another member reaffirmed the original decision of the Committee.

 

In highlighting that the decision was finely balanced, Mr McGuckin reiterated his concerns raised in a previous meeting, that closing railway crossings was a mechanism for extinguishing rights of way, however, a judgement should be made in the interests of public safety and it be ensured that a safe alternative be provided. He expressed that there should be a reticence to extinguish rights of way and highlighted the legal implications ahead dependent on the decision of the Committee. He moved that the Committee approve submitting the Order to the Secretary of State for resolution and inform the Planning Inspectorate that from now on the County Council will be taking a neutral stance. This was seconded by Mr Morgan.

 

The Chair stated that the first motion (that the County Council cannot confirm an opposed 1980 Highways Act 119A legal order but may submit the legal order to the Secretary of State and support its confirmation) would be put to the vote.

 

Following a vote cast as follows: 9 members in favour, 7 against and 1 abstention, it was

 

RESOLVED that, the County Council approve the submission of the legal order to the Secretary of State and support its confirmation.

Supporting documents: