Private Crossings (Signs and Barriers) Regulations 2023

Lord Davies of Gower Excerpts

Wednesday 17th January 2024 Lords Chamber

I look to the Minister to explain, within the ORR’s own rules at the moment, how this could be justified. I hope that he is able to produce an answer, either now or in a further document, on how the department came to these conclusions.

[The Parliamentary Under-Secretary of State, Department for Transport (Lord Davies of Gower) (Con)]

My Lords, I thank all noble Lords for their consideration of the Private Crossings (Signs and Barriers) Regulations 2023 and for the many informed points that were raised, which I will now try to answer. I do not have to declare anything, but I do have a passionate interest in heritage railways: there is nothing quite like a Santa special with the grandchildren.

These regulations are made under the powers conferred by the Transport and Works Act 1992. They address a long-standing concern by the Rail Accident Investigation Branch about the effectiveness of signs at these types of level crossings. The regulations will apply to England, Scotland and Wales. The regulations were subject to the negative procedure and came into force on 18 November 2023.

I will now provide some background information about the legislation. There are two categories of level crossing on Great Britain’s rail network, which are governed by separate legislation: crossings where the railway bisects a public right of way and crossings where the railway bisects a private right of way. These regulations cover the second category and replace the Private Crossings (Signs and Barriers) Regulations 1996. There are around 3,200 private crossings in Great Britain. Around 2,500 of these are on Network Rail’s tracks, around 700 are on heritage rail lines and one is on a tramway. Many of these crossings were created in the Victorian era to maintain access for local landowners, such as farmers. These crossings are the responsibility of the relevant railway operator.

In recent years, the number and diversity of private crossing users have increased. This has been due in part to the increase in the popularity of online shopping, which has led to a large increase in the number of couriers and home delivery drivers using private roads. Van travel has grown substantially over the last 25 years, increasing by 106% to 55.5 billion vehicle miles in 2019, according to the department’s own estimates. Some of these users may be unfamiliar with how to use or operate these crossings safely. In addition, rail traffic along some formerly quiet routes has increased since 1996, increasing the risks to users of private crossings.

The Rail Accident Investigation Branch undertook a comprehensive review of these crossings in 2009. It found that the signs used at these crossings are not always easy to understand and that their design does not always reflect the risk at individual crossings. The Rail Accident Investigation Branch made several recommendations, including one that the requirements for signs at private crossings should be reviewed. The report also found that the 1996 regulations contained a limited range of signs that did not reflect the full range of users of private crossings. For example, there are no symbols in the regulations for tractors, horse riders and farm trailers, all of which often use private crossings; the Rail Accident Investigation Branch reported that this can create confusion.

Since that report, there have been several serious accidents at private crossings, including at Frampton level crossing and Frognal Farm. These prompted the Rail Accident Investigation Branch to recommend that the signs themselves be redesigned; these new regulations do just that.

The department has spent several years working with sign experts to create a suite of signs that address the concerns raised by the Rail Accident Investigation Branch. This involved commissioning research, as well as consulting twice on the revised sign designs. The first consultation in 2022 ran for eight weeks and received 64 responses from rail operators, private residents and other interested parties. We worked with the Office of Rail and Road, Network Rail and the Rail Safety and Standards Board to revise the proposed signs in light of these responses. We then tested them with experts on level crossings, signage and human factors to ensure that they were clear and effective. These signs were then subject to a second consultation, which ran from 5 April to 10 May 2023. We received further responses, which we used to refine the new regulations.

I believe that that perhaps explains the background and need for these signs. I will now address the other areas raised. In answer to the points by the noble Lord, Lord Berkeley, about implementation, I will try to explain how we expect the new regulations to be implemented. I am aware that this has caused concern among some heritage rail operators. All existing signage that complies with the 1996 regulations remains lawfully placed until it needs to be replaced. However, once a sign needs to be replaced, only a new sign may be erected. This is an important point, as it means that there is no legal requirement for operators to replace existing signs. These will remain lawfully placed until the end of their serviceable life. In practice, this could be several decades. Perhaps this will help heritage railways to replace signs over a period of time, reducing the cost.

Nevertheless, we believe it is important that the new signs are introduced as soon as possible. This is particularly important for the mainline railway, where the risks to users are greatest. We have agreed with Network Rail that, on the mainline railway, the older signs will be replaced as soon as possible, and by the end of control period 7, in 2029, at the latest.

The risks are lower at private crossings on heritage railways due to the lower speed and frequency of the trains. The department has no intention of changing the Transport and Works Act to allow the Secretary of State to mandate the early phasing out of these existing signs. None the less, we hope that the heritage rail sector recognises the improvements that the new signs bring and will make all reasonable efforts to adopt the new signage as soon as possible. My officials have written to the Heritage Railway Association and other heritage railway operators to make this point clear.

The noble Lord, Lord Tunnicliffe, and other noble Lords raised the cost of installing new signs. We estimate that this will range from £2,000 for a simple installation to £4,000 for a more complex one. These costs include the costs of the signs themselves, staff or contractor costs, and materials. Our estimates are based on Network Rail’s own experience and have been validated by the heritage sector.

Most of the costs will be borne by public sector bodies, particularly Network Rail, which is responsible for around three-quarters of private level crossings on the rail network. We estimate that the cost to Network Rail will be between £800,000 and £1.7 million per year between now and 2029. These costs have been reflected in Network Rail’s funding settlement for 2024 to 2029.

The cost to heritage operators is estimated at between £253,000 and £506,000 per year. However, this assumes that heritage operators adopt a similar rollout of the signs to 2029. In most cases, these costs will not be additional, as the signs would have had to be replaced at the end of their serviceable life.

The share of the costs will vary between operators, depending on the number of private crossings on their estate. Some will carry a larger share, others minimal. As I mentioned previously, we hope that the heritage sector recognises the benefits that these new signs bring and looks to implement them by the end of 2029.

Heritage railways are important stakeholders for the department, and we are keen to ensure that no burdens are placed unduly on them, especially as many have been impacted financially by the pandemic. However, we are keen to see the safety benefits of the new signs across the whole of Great Britain’s rail estate. Ensuring that the messaging on the signs is consistent is essential for safety. We therefore urge the sector to look to erect the new signs as soon as it can, using a risk-based approach. Officials in the department recently wrote to the Heritage Rail Association setting this out.

The noble Lord, Lord Berkeley, raised the question of Explanatory Memoranda. The department continues to work hard to improve the quality of these, and I recognise that they are a vital part of the legislative process. Regular training on secondary legislation is available to all officials, with additional content targeted at those who are developing or drafting SIs and their products.

On other points raised by noble Lords, I understand the point made by the noble Baroness, Lady Browning, about the whistle. I am sure that is something that heritage railways can take up. On the point raised by the noble Baroness, Lady Randerson, on ford signs, I will have to have a look at that and write back to her.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Berkeley, raised the issue of the Welsh language. We heard from some respondents that they would like the ability to place signs in the Welsh language in Wales. Although the policy area is not devolved, we believe that this is the right thing to do and are currently working with experts to translate the signs into Welsh. These will be used where risk assessments say they would be of benefit. We expect this work to conclude later this year, but due process must apply.

--- Later in debate ---

[Lord Tunnicliffe (Lab)]

The essence of my point is that, superficially, this burden offends the rule that the railways claim to take through the ORR that safety improvements are not necessary if their cost is grossly disproportionate to the benefit. If it is above £5 million you would have to set that down on a piece of paper. Would the Minister mind setting out on a piece of paper, and sharing it with all who have spoken, how the department came to the conclusion that the benefits are greater than the cost and that the cost is not grossly disproportionate to the benefit? It is a simple idea that saves the railways spending lots and lots of unnecessary money. It is a very sensible idea and it is recorded; eventually you find it in their rules. The sum should have been done.

[Lord Davies of Gower (Con)]

My Lords, we could discuss this for ever and a day: the cost of a life. To me, one life saved, at whatever cost, is a life saved. That is particularly important.

[Lord Tunnicliffe (Lab)]

I am sorry, but safety legislation, in virtually every area, does not take that view. We do not talk about it very much, but the ability to spend money on safety is almost infinite. There has to be a point where you say “Enough is enough”—otherwise, transport and virtually all activity involving risk would grind to a halt. You have to take a sensible, proportionate view, which British safety legislation does. The very sound Health and Safety at Work Act 1974 does not require risk to be eliminated; it requires it to be reduced to as low as reasonably practicable, and a court has ruled that that test includes cost.

[Lord Davies of Gower (Con)]

I am afraid we will have to agree to disagree on that point at this stage. I now have to conclude—

[Baroness Randerson (LD)]

I apologise. It seems to me that the basis of this discussion is a significant difference between the statistics used in the Explanatory Memorandum and those used by the noble Lord, Lord Tunnicliffe. The Minister referred to the number of near misses. The EM says there are on average 137 per annum. It also says that there are on average two fatalities a year. That is very different from the figures the noble Lord, Lord Tunnicliffe, produced. I hope the Minister will agree to write to us to set out the statistics and clarify that the Explanatory Memorandum is based on accurate information, because it is clearly having an impact on some people’s approach to this debate.

[Lord Davies of Gower (Con)]

I thank the noble Baroness for that point. I will go back to the department, we will look at those figures, and I will write to those noble Lords concerned about this point.

To conclude, these regulations address recommendations made by the Rail Accident Investigation Branch to improve the quality of the signs to be used at private level crossings. They have been tested in a real-world environment and have been subjected to two consultations, which allowed interested parties to make their views known. As a result, we have now placed into legislation a set of signs that are fit for purpose and a vast improvement on those they replace. They will instruct users on the safe use of the crossings and improve safety outcomes for the many people who rely on them. I am sure noble Lords agree that this is the right thing to do.