Network Rail: Doubledykes Crossing

Peter Grant Excerpts

Wednesday 24th May 2023 Westminster Hall

[Peter Grant (Glenrothes) (SNP)]

I beg to move,

That this House has considered Doubledykes crossing and Network Rail.

Doubledykes Road is an ancient right of way in my constituency, linking the communities of Coaltown and Milton of Balgonie to the north, and Coaltown of Wemyss, East Wemyss and West Wemyss to the south. It crosses an area of farmland, other open land and some woodland that has been well used for centuries by walkers and cyclists. The road is known locally as Queen Mary’s Road, in reference to it having been used by Mary Queen of Scots. While that story might be difficult to verify, it indicates how ancient the route is and the fact that for centuries the people of central Fife have regarded it as their public right to travel along the road any time they want to.

Doubledykes Road is certainly centuries older than the original Leven to Thornton railway, which opened in 1854. It was closed to passengers in 1969 and has not carried a train of any kind since 2001. The date 2001 is important, and I will explain why later. Throughout the time the railway operated, walkers and cyclists used Doubledykes level crossing to cross the line in safety, and I can personally testify to how well used the right of way and the crossing were on a number of occasions when I was walking or cycling through the area.

All that changed last year when Network Rail stunned local communities by announcing that, as part of the welcome, and indeed overdue, reinstatement of the Levenmouth rail link, all public accesses across the line in the area would be closed. Between Windygates to the east of the railway and Thornton to the west is a stretch of several miles of well used footpaths, all of which now run the risk of being permanently severed.

It is illegal in Scotland to block a public right of way without first going through the legal process of having it extinguished. Network Rail has closed that right of way just now, arguably for good reason, because it is a building site. Network Rail is building a railway there, so it would not be safe to have unrestricted public access. As a temporary measure, closure is acceptable, but if Network Rail is seeking to have the right of way permanently blocked, it has not yet gone through the proper legal process of having the right of way officially extinguished.

As long as Network Rail insists on looking to the law and fighting about it, we are left in this position: unless we can make Network Rail see sense, the only way the public and I, as well as their other representatives, can remedy the situation is either individually or through Fife Council embarking on probably lengthy and costly legal action, which, among other things, would cause severe delay to the reopening of the railway and could jeopardise the railway project in its entirety. None of us wants to consider that.

Like others, I have been making representations directly to Network Rail, and to the Scottish Government, whose support and money have been vital in reinstating the Levenmouth rail link. We have made representations to Fife Council, which has a responsibility, among others, to maintain public access to the countryside.

I am raising the matter here because, while there is a memorandum of understanding between the UK Government and the Scottish Government that gives the Scottish Government and the Scottish Parliament some powers over Network Rail in Scotland, the company is still legally controlled by the UK Government.

Network Rail Ltd is a company limited by guarantee. It does not have shareholders, but Companies House records show that the Secretary of State for Transport is a person with significant control. He is the only person, or corporate body, registered in such a way for Network Rail. The Secretary of State for Transport owns at least 75% of voting rights and has the power to appoint and remove directors. I am hoping the Secretary of State will not have to use the power to remove directors in order to resolve the problems at Doubledykes, but owing to the way Network Rail has been treating my constituents, a lot of them would sack the board tomorrow if they got the chance.

When I have met representatives of Network Rail face to face, they have always been keen to co-operate and have always come across as wanting to find a solution to a problem that I think has been caused by an oversight at the planning stage—nothing more than that—but as soon as they put pen to paper, or as soon as they put fingertips to keyboard to send an email, they start to give a clear message that they will not do anything that cannot be legally forced on them. Their position is that the right of way does not exist and, therefore, nobody has any legal power to force any action on them. That is not a co-operative and constructive position for any public body to take.

The law of right of way in Scotland is different from that in England in a number of important regards. First, there is no such thing as a statutory register of rights of way. A right of way just is. It does not need to be declared, registered or recorded on a map. There is no doubt that Doubledykes Road meets the four tests to have been established as a right of way. It must join two public places—yes. It must follow a more or less defined route—yes. It must have been used openly and peaceably by the general public, as a matter of right—yes. It must have been used without substantial interruption for at least 20 years—yes.

The 2001 date is so important because in 2001, the Levenmouth rail branch line ceased to be a railway. It was then open for a public right of way to be re-established over that crossing. That is what I am convinced has happened since 2001 and up to 2021. Let us remember that in in Scots law, there is no need for the right of way to be recorded or declared in order for it to be brought into existence and to be enforceable. There is no doubt that Queen Mary’s Road meets all those tests.

My constituents asked Network Rail what it was doing and how it could justify closing off a right of way without first applying to have it extinguished. The person who sent the initial reply said that the crossing could not legally constitute a right of way. They put “right of way” in inverted commas just to cover themselves. In their words:

“It is private in status with no authorised users.”

That is mince. The whole point of a public right of way is that it does cross private land, and that users are not authorised. They do not need authorisation or anybody’s permission. The public use a public right of way as a matter of right.

When I emailed Network Rail to explain that, and to say, “I think your position is completely wrong”, the same person who had definitively told my constituents that it could not possibly be a right of way replied to me and said that they could not

“personally offer an opinion on the legal status of the crossings”.

They then suggested that Network Rail’s position might not have been accurately represented to me. That was a strange idea, since the position had been represented to me by an email from the self-same person.

The person then discovered, or remembered, an old Act of this place: the British Railways Order Confirmation Act 1984, no less. Sure enough, when we look at the detail of that, we see that the Doubledykes level crossing was extinguished in 1984. I put on record, however, that some of my constituents have doubts about whether that Act was ever properly and legally brought into force. There may be a doubt as to whether the Act is enforceable even now.

Network Rail pointed out that a new right of way cannot be established over an existing railway, which is fair enough, but let us remember that it has not been a railway since 2001. Something cannot be defined as a railway if it does not have tracks or trains. There is a very strong argument that the right of way had become established by 2022.

Network Rail seemed to be hedging its bets and to have identified that possibility, because it then claimed that, even if the public had continued to use the crossing over the period of 21 years since the railway ceased to be a railway, the public were doing that

“at the invitation, even the tacit or implied invitation, of Network Rail.”

There have been disputes about how well used the crossing was until the point that Network Rail closed it. Network Rail thinks it was hardly ever used; everybody else says it has been very well used. For example, a lot of cyclists use apps that not only show where they are, but enable them to compare speeds round the route with other cyclists who sign up to the same app. Those apps show that there has been a lot of cycle traffic along Doubledykes Road and across the crossing since the apps were invented.

Network Rail was very cagey about what surveys, counts or other measures it has undertaken to establish how well used the crossing was. At one point, Network Rail even said that that had been done by a local organisation, which told us in no uncertain terms that it could not have done it, because, geographically, it did not have a remit in that area. It is worth noting that Network Rail’s suggestion that users were using the crossing at the invitation of Network Rail completely contradicts its claim that nobody, or hardly anybody, ever used it.

The towns of Levenmouth—Methil, Methilhill, Buckhaven, Leven, Kennoway and several nearby villages—represent about 40% of my constituency. Leven is partly in North East Fife. The area still has the unenviable distinction of being the largest centre of population anywhere in Scotland without a passenger rail service. I pay tribute to the Levenmouth Rail Campaign and other local activists, who have fought doggedly for years to get the rail line re-established. I will be forever proud that I was the leader of Fife Council who got agreement that opening the Levenmouth rail link was the single biggest public transport priority in Fife. We were the first administration to put its money where its mouth is and allow the first feasibility studies to be carried out.

I still think that took too long, and there were setbacks and annoyances along the way. In 2019, however, when the then Scottish Transport Minister announced that the Scottish Government would reopen and fund the Levenmouth rail link, there was absolute delight in Levenmouth and in many other parts of Fife. People still desperately want the railway to reopen. I can feel the excitement when I go to exhibitions to update the public about what is happening. They can see the new stations getting built and the rail tracks being re-laid. We hope that the first trains will run on the railway in 2024, just over a year from now.

It would be unacceptable for anything to be done at this stage to prevent that from happening. It is also unacceptable for any public body to hide behind its version of the law and fail to communicate and engage properly with the communities that are being affected by its decisions. Those communities want the rail link reopened, and they are delighted that that will happen. They are, however, becoming increasingly angry, not at the fact that a mistake was made in the early planning stages—mistakes happen—but at the attitude of Network Rail, one of the key players. Network Rail sometimes appears to be very co-operative, but as soon as it comes to sitting down and looking for a solution, it passes the whole thing over to somebody else.

For example, a couple of weeks ago, Network Rail emailed me and other local representatives suggesting that only a minority of locals are concerned about this issue. That is deeply offensive, and not to me—people can be offensive to me if they want; that is part of the job of being a Member of Parliament. Every single statutory community council with an area of operation that goes anywhere near Doubledykes has unanimously expressed the view that they want the crossing to be kept open. They have the legal responsibility to represent the views of their local communities. It is not acceptable for any public body to seek to dismiss their views as being only a minority. For the record, all constituency MPs, MSPs and councillors with a ward interest anywhere near Doubledykes Road, as well as Fife Council and the Fife Council Glenrothes area committee, have come out clearly as saying they want a solution to be found to this issue.

There are questions about what kind of crossing to use. I am not convinced about this, but a lot of people locally think a pedestrian level crossing could be operated safely. Network Rail have had none of that. A footbridge or tunnel is possible, but is clearly more expensive. In the bigger scheme of things, however, when we can spend at least £2 billion on a single railway station in London, surely we can find £1 million to £1.5 million to maintain one of the most ancient rights of way in our land. There is a question of who pays, but it would cost £1 million, not a huge amount of money. I am not asking the UK Government to fund it, by the way; I hope we can find a way to fund it entirely in Scotland.

There are questions to be answered, but I am convinced that a solution is possible if all those involved simply sit down and agree that there is answer to be found and try to find it. Everyone needs to agree to share the responsibility —and not to palm it off on everybody else—to ensure that as soon as is feasible after the rail line is opened, the ancient public right to travel along Queen Mary’s way will be re-established.

I will finish by commending the efforts of the Levenmouth Rail Campaign. The reason why we were able to persuade Fife Council to be so supportive, as soon as we came into administration in 2007, was that it was very clear from day one that the degree of public support in Levenmouth was huge. Levenmouth Rail Campaign has co-ordinated and brought together that public support and made it into a very effective public campaign. That has been led not by politicians, but by the people, and the politicians have supported it along the way. Thanks to the Levenmouth Rail Campaign and the dogged determination by local MSPs—initially Tricia Marwick and later Jenny Gilruth, with David Torrance on the south side of the line—the Scottish Government agreed to go through what can be quite a difficult process in the Scottish Parliament of getting approval for a significant capital investment to get the rail link open.

Everybody living anywhere near this rail link wants to see it opened. I believe that practically everybody wants to see it opened, with a safe pedestrian access maintained across a route that might not have been used by Mary, Queen of Scots herself, but which has been used by generations, decades and centuries of people in Fife going about their ordinary, day-to-day business. I want to see it reopened. I know that this is not entirely a decision for this Transport Minister to undertake. I appreciate that most of the persuasion has to be done in Scotland, but right now, the people need all the support they can get. If the Minister is able to commit to joining communities and elected representatives in Fife to persuade Network Rail to see sense and behave like a body that is accountable to the public, that is all we ask.

[The Parliamentary Under-Secretary of State for Transport (Mr Richard Holden)]

It is a pleasure to serve under your chairmanship, Mr Davies. I thank the hon. Member for Glenrothes (Peter Grant) for securing this debate, which concerns the closure of the Doubledykes level crossing in his constituency. I want to acknowledge the strength of feeling on the issue and thank the local community for presenting the petition, which has received over 1,100 signatures. Before I go into the specifics, I will talk briefly about railways, the role of Network Rail and level crossing safety more generally.

Rail is an important engine of economic growth. It serves several functions: it offers commuters a safe and reliable route to work, it facilitates business and leisure travel, it connects communities with their public services, workplaces and other economic opportunities, and it transports millions of tonnes of freight around the country, relieving congestion on roads and bringing huge environmental benefits. We want to build on the success in UK rail since the mid-1990s by improving and extending services where viable.

We are well aware of the positive impacts that improved, more frequent and direct rail services can have on communities. That includes the reopening of the Levenmouth rail link, which was approved by the Scottish Government in August 2019 and which will result in passenger services between Leven and Thornton for the first time in over 50 years. That project is scheduled to be completed by spring 2024 and will bring considerable benefits to the area and the surrounding region, in the hon. Member’s constituency and beyond.

For all its benefits, the creation of a new service does create safety risks that have to be managed effectively, not least on sections of railway track that have not seen high levels of traffic for several decades. That creates difficult choices for rail operators and for Network Rail, the operator of the mainline rail network, as it seeks to deliver faster and more frequent services safely. There are no easy solutions, and I recognise the huge responsibility that organisations such as Network Rail bear. Operational decisions such as these are rightly a matter for Network Rail, the safety duty holder for Britain’s railway infrastructure, which has the expertise needed to look at decisions in depth.

Network Rail’s responsibilities include user safety at over 6,000 level crossings on the mainline rail network. Level crossings now represent the single greatest source of risk for fatal rail accidents; there were seven fatalities at level crossings in the last year alone. In most accidents or incidents at level crossings, actions by the user, intended or unintended, have been a contributory factor.

[Peter Grant]

Any serious injury or fatality is a tragedy, but can the Minister clarify how many of those incidents took place on mainline railways and how many took place on low-volume, low-usage branch lines, where trains have a much slower speed than on the main line?

[Mr Holden]

I will happily write to the hon. Member about all the incidents in the past few years. It is probably quite helpful for him to have that specific knowledge about, let us say, the past 10 years, so I will get my officials to write to him on that. Incidents have taken place on branch lines and on the main line; I will provide a breakdown and write to him in detail about those fatalities.

Network Rail is putting significant effort into improving safety at level crossings. It is focusing on several things: first, improving the operation and maintenance of level crossings; secondly, a programme of risk assessment to identify priorities for further action; thirdly, measures to promote the safe use of crossings by pedestrians and drivers; and fourthly, where necessary, closing crossings altogether where they continue to present an unacceptable safety risk. No decision to close a level crossing is taken lightly, because level crossings often provide a really important means of access to local communities. None the less, although the safety record of level crossings in this country is among the best in the world, we cannot afford to be complacent, and we want to seek to reduce the risk of incidents wherever we can.

I turn to the Doubledykes level crossing, which is obviously of particular interest to the hon. Member and is the subject of this debate. It is one of several level crossings on the Levenmouth rail link, which on reopening will connect Leven with Thornton and join the Fife circle line at Thornton North junction.

As the hon. Member will doubtless know, Doubledykes level crossing was established in 1863 during a period of huge expansion of the rail network, both locally in Fife and right across the country. The level crossing has been used by the local community to access both sides of the railway and the surrounding area.

Since the end of passenger services on the Levenmouth rail link in 1969, services have ceased on this part of the network and people have become accustomed to using the level crossing without any risk. The reopening of the link will see, for the first time in a generation, services returning to this part of the rail network. Trains are expected to pass through Doubledykes level crossing about twice an hour. This will bring much-needed benefits to the wider community by connecting the towns of Leven and Thornton. It will also create additional risks, including at Doubledykes level crossing. Although the level crossing currently remains open, Network Rail has confirmed that it plans to close it when the new link is in operation, to protect the safety of the local community and rail users.

My Department has not been involved in the project to reopen the rail link or in the decision to close the level crossing. That decision quite properly rests with Network Rail in exercising its duty as infrastructure manager to ensure the safety of the travelling public. I understand that the decision was made in consultation with Transport Scotland, the South East of Scotland Transport Partnership and Fife Council, which are the joint project sponsors of the rail line. For that reason, it would not be appropriate for me to comment in detail on the decisions taken in this case, which are more properly a matter for the Scottish Government and the project sponsors.

I appreciate, however, that the closing of any level crossing can be inconvenient and very upsetting for local communities. That will be particularly true in the case of Doubledykes, which has not had rail traffic stopping people crossing since the late 1960s; it is evident from the large number of people who signed the petition. I cannot speak on behalf of the sponsors of the Levenmouth rail link, but I am sure that that will have been an important part of their considerations during the planning stages.

[Peter Grant]

I am grateful to the Minister for giving way again; he is being very generous with his time. May I remind the House that I am not particularly pushing for a level crossing? It is not the only possible answer.

The Minister mentioned risk assessments of level crossings. Does he understand the local puzzlement as to how Network Rail could possibly have done a risk assessment of this crossing if it has no idea how many people are using it just now?

[Mr Holden]

As I have said to the hon. Gentleman, it is obviously for Network Rail, alongside the other sponsors of the project in Scotland, to justify the assessments that it has made. They will have made the assessments as part of their planning processes; it might well be best if the hon. Gentleman directed his specific questions about how decisions are arrived at to the relevant sponsoring authorities.

Ultimately, any decision on whether to close a level crossing must ensure the safety of level crossing users and rail users. In a case such as Doubledykes, I am confident that Network Rail will have looked at the risk profile, the frequency of services and the number of people using the crossing and will have worked with others in the region to look at this. However, I understand the concerns of the hon. Gentleman and his constituents about this matter.

I have spoken to my hon. Friend the Member for Bexhill and Battle (Huw Merriman), who is the Minister with responsibility for rail. He would be happy to have further meetings with the hon. Gentleman in person, to look further at the issues and see what can be done, if the hon. Gentleman would like to do so and if that would be useful to him. I will also happily write to Transport Scotland in response to the concerns that the hon. Gentleman has raised today, to push this issue further.

It was particularly good to hear that the hon. Gentleman is considering multiple different solutions in this space. I hope that his call has been heard by the decision makers and the local sponsors of this project so that they can also think about the other potential options to maintain connectivity, but, as I have said, the funding and the options are really a matter for those sponsors.

Once again, I thank the hon. Member and his local residents for bringing this matter to the attention of the House. I am sure that the Rail Minister will look forward to meeting him at the earliest opportunity to see what more we can do to work with him on the issue. I also look forward to writing to Transport Scotland to express the concerns of the hon. Member and his constituents about this important local issue.

Question put and agreed to.