Railway fencing

[Bomag]

Does anybody know what the current legal requiremt is for fencing the railway?

 

When I worked for BR in the 80's there was a fixed design for RCE Anglia. There now seems to be a whole range of fening on the network. Has there been a change in requirement in some of the legislation since 1990? Given the variations it may be that there may be a 'general' requirement e.g HSWA 74 rather than a fixed design. In highways this leads to many variations, depending on how risk averse designers are.

[Guest Max Stafford]

Historically, three or four wires strung along posts were the legal requirement. This was purely to prevent the straying of livestock onto the railway.Human beings were generally considered to possess sufficient intelligence to know they shouldn't cross this boundary.

 

This remained the case until the 1990s when toxic lawyers managed to twist the situation so much in test cases (whilst building their own legends) that the railways had to spend tens of millions on pallisade fencing which could have otherwise have been invested in better infrastructure.

 

Dave.

[Guest stuartp]

Dave has summed up recent practice neatly.

 

Legally, the various Regulation of Railways Acts required railways to be fenced, but - the original statutory requirement was for them to be fenced against trespass from the railway onto the surrounding land, and to keep animals off. It just wasn't the done thing to have lots of scruffy railway oiks wandering about on one's land or having one's livestock run over you see.

 

Over the years the existence of fences conferred a common law obligation on the railway to maintain them against trespass by people who really ought to know better, but the requirement was only that the fence was intact and was clearly a physical boundary. There was no requirement for it to be impregnable and there was no Duty of Care owed to trespassers.

 

This all changed in 1972 with the (in)famous case of Herrington -v- BRB. The BR Board argued that they were not responsible for injury to a six year old who strayed onto the live rail because the child was trespassing. However, they were held negligent as the fence had been dilapidated for at least two years, trespass was foreseeable as the line bordered a field where children played, and the case was upheld by the Court of Appeal and the House of Lords.

 

The current position is laid down in the 1997 Railway Safety (Miscellaneous Provisions) Regulations which state:

 

Regulation 3:

 

So far as is reasonably practicable, a person in control of any infrastructure of a transport system ... shall ensure, where and to the extent necessary for safety, that unauthorised access to the infrastructure is prevented.

 

There is some small print stating that it applies to access by persons not at work on the railways and by animals, and doesn't apply in harbours, factories, mines and quarries.

 

So in a nutshell, until 1971 there was no common law requirement at all for trespasser-proof fencing, and the statutory requirement that the fence should be physically cabable of keeping to keep people out only dates from 1997. This is, of course, a very potted version of a subject which takes up 20 pages of my railway law textbook.

[Lady_Ava_Hay]

Peculiarly enough, railways were originally only fenced because the landowners insisted to prevent livestock straying. It was worth the railway company erecting such fences to maintain there rights to the land and they effectively got it for nothing anyway.

 

All this 'gentleman's agreement' style eventually became law mainly by precedent. Remember that every railway at that time was built under an Act of Parliament and you would need to research these to find any that actually dictated what size and type of fence should be erected. I am not sure that any of them do but I do know that a railway has to be fenced whereas a tramway doesn't and that there appears to be a difference between a light railway and other railways. The Bluebell is a light railway as is the KESR.

 

There is nothing to prevent any High Court judge from making a precedent of any case brought before him. This is where the lawyers come in.

 

The argument has shifted in weight away from common sense and towards the more invasive 'protect from folly' policy.

 

At the same time though, if a railway fence becomes damaged or defective and is reported to the railway, then they have a duty to come and fix it. If they do not fix it within a reasonable time frame and a member of the public is hurt or killed then the railway is liable to be sued by H&S and the person who has been hurt or killed.

 

The law allows for contributory negligence so if a member of the public gains unauthorised access to private land adjacent to the railway, clambers across an old decrepit fence and onto the railway and then breaks his big toe on a sleeper, he will get short shrift from the law but possibly some compensation from an insurance claim. The railway would then have to fix the fence so it couldn't reasonably be expected to happen again

 

If another member of the public uses a hole in an old fence alongside a public footpath to gain easy access to his home station and was clipped by a passing train running very late and killed, then all hell would break loose as to why such a vulnerable fence had not been strengthened/maintained/replaced. Obviously, in both cases, if it was found that the railway knew about the condition of the fence but had done nothing about it, this would weigh very heavily with any authority.

 

The vast majority of railway fences are now donkeys years old, matted with vegetation and way out in the countryside well away from human folly. I have no doubt that most landowners these days would probably fix their own fences if any weakness resulted in stock getting on the line.

 

It would be interesting to learn of any statistics as to livestock and modern trains.

[flyingsignalman]

Nowadays, as I understand it, non-operational railway land (eg areas of lifted sidings etc) has to be fenced off from operational land.

[Bomag]

The current position is laid down in the 1997 Railway Safety (Miscellaneous Provisions) Regulations which state:

 

Thanks, I found the SI. Its not the most of enlightening of requirements but means that almost any type of modem fence can be used on a layout.

 

Matthew

[Caledonian]

Peculiarly enough, railways were originally only fenced because the landowners insisted to prevent livestock straying. It was worth the railway company erecting such fences to maintain there rights to the land and they effectively got it for nothing anyway.

 

All this 'gentleman's agreement' style eventually became law mainly by precedent. Remember that every railway at that time was built under an Act of Parliament and you would need to research these to find any that actually dictated what size and type of fence should be erected. I am not sure that any of them do but I do know that a railway has to be fenced whereas a tramway doesn't and that there appears to be a difference between a light railway and other railways. The Bluebell is a light railway as is the KESR.

 

 

Unless you're dealing with ancient history its actually covered by Section 64 of the Railway Clauses (Consolidation) Act 1845. As its title suggests this Act basically brought together best practice from previous ones and thereafter any new railway works had to be carried out in accordance with its provisions rather than re-inventing everything each time.

So far as lineside fencing goes, (which was indeed primarily to prevent railwaymen straying on to adjacent land), the standard applied at least until the 1970s was 1.4 metre high post and rail (two rails) or five strands of wire.

[caradoc]

I have always wondered the point of fencing off every single mile of Britain's railway network, only to provide a gently sloping ramp at the end of 99.9% of station platforms allowing anyone easy access to the track. Here a sign is deemed sufficient to prevent trespass.

Matt

[Kris]

However unsightly the modern palisade fencing is, it does in some locations have extra benefits. I used to regularly go kayaking on a river next to a freight only line. Before the palisade fencing went up it was far from uncommon to find lumps of ballast being used as weapons, either against those of us on the water or against the clubs buildings.

 

] [/color]the standard applied at least until the 1970s was 1.4 metre high post and rail (two rails) or five strands of wire.

Down in the South West much of the fencing was 7 strand.

[The Stationmaster]

I have always wondered the point of fencing off every single mile of Britain's railway network, only to provide a gently sloping ramp at the end of 99.9% of station platforms allowing anyone easy access to the track. Here a sign is deemed sufficient to prevent trespass.

Matt

 

Many of which are now being fenced off (and they are not now required on new build platforms).

 

 

 

[Guest stuartp]

I have always wondered the point of fencing off every single mile of Britain's railway network, only to provide a gently sloping ramp at the end of 99.9% of station platforms allowing anyone easy access to the track. Here a sign is deemed sufficient to prevent trespass.

Matt

 

That's another throwback that's recently been addressed. The current standard for new construction is a fenced off drop with gated access for the P.Way, unless there is a good reason for retaining a ramp (such as the platform abuts a level crossing and the ramp provides the public access). Even that has changed, new build ramped access has to comply with the Disability Discrimination Act's 1 in 20 maximum gradient rather than the 1 in 12 permissable for platform ramps.

 

Of course, there's still nothing to stop you just climbing off the platform edge, it's only 3 feet, but it requires a bit more intent than the casual trespass that the gently sloping ramp invites.

[Captain Kernow]

One other thing to bear in mind, particularly with regards to the railways 'duty of care' to trespassers, is that any oiks that do get onto the railway usually require trains to be cautioned, so as to reduce the chances of an injury or fatality to the trespasser. These delays cost NR money, so there is often a business case to be made to improve the strength of fencing in certain areas and reduce or stop these incidents, hence the rise in popularity of palisade fencing in urban areas.