2014-12-15 (2014-12-12) HeidiCruickshankPlanningInspectorateToENance OrderConfirmation

8/21/2019 2014-12-15 (2014-12-12) HeidiCruickshankPlanningInspectorateToENance OrderConfirmation

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h e P lan n in g In sp ec to ra te

3/25 Hawk Wing

Temple Quay House

2 The Square

Bristol, BS1 6PN

Direct Line:

Customer Services:

Fax No:

e-mail:

0303 444 5646

0303 444 5000

0117 372 6153

[email protected]

~

28 Godolphin Road, Long Rock

Penzance

Cornwall

TR208JP

Your Ref:

Our Ref: FPSjD0840j3j3

Date: ,.,

E e

2 4

Dear Madam

HIGHWAYSACT 1980 SECTION 118A

Cornwall Council

The Cornwall Council (Mexico Inn Pedestrian Crossing) (Long Rock) Parish of Ludgvan Rail

Crossing Extinguishment Order 2013

I enclose for your information a copy of the Inspector's decision on this Order following the

Inquiry which opened on Tuesday 21 October 2014.

Also enclosed are two leaflets entitled

Our Complaints Procedure

and

Challenging the

Decision in the High Court.

If you have any queries about the enclosed declsion. please contact the Quality Assurance

Unit at the following address:

Quality Assurance Unit

The Planning Inspectorate

1/23 Hawk Wing

Temple Quay House

2 The Square

Temple Quay

Bristol

BS16PN

Tel: 0303 444 5884

http://www .plan ningporta I.gov. uk/planni ng/appeals/planni nginspectorate/feedbackl

An electronic version of the decision will shortly appear on the Inspectorate's website.

Yours faithfully

Helen

Spar kJ

(Rights of Way Section)

Despatch 1

www.planningportal.gov.uk/countryside

~vnSTOR rx PEOPLE


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, The P lanning Inspectorate

Order Decision

Inquiry opened on 21 October 2014

by Heidi Cruickshank BSc (Hons), MSc, MIPROW

an Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs

1 2 O E C 2 0 1 4 - - - - - - - - - - - _ . - - . - - - - - -

Dedsion date:

OrderRe~ FPS DO 40 3 3

This Order is made under Section 118A of the Highways Act 1980 and Is known as The

Cornwall Council (Mexico Inn Pedestrian Crossing) (Long Rock) Parish of Ludgvan, Rail

Crossing Extinguishment Order 2013.

It The Order is dated 14 August 2013 and proposes to extinguish part of a footpath

running from a cui-de-sac, Beach Terrace, in a generally southerly direction to the

junction with FPj103j48. The section to be extinguished crosses the London - Penzance

main railway line. Full details of the route are set out in the Order Plan and Schedule.

There were 154 objections and 5 representations in support outstanding at the

commencement of the Inquiry.

Summary of Decision: The Order is confirmed subject to

modifications set out in the Formal- Decision.

PRELIMINARY MATTERS

Status of the route

1. The Order route, Mexico

crossinq ,

is not recorded on the Definitive Map and

Statement, the legal record of public rights of way, held by Cornwall Council,

the order-making authority (lithe OMA ). It is also unrecorded on the record of

publicly maintainable highways, the list of streets, also held by the OMA.

However, I agree with the OMAthat the evidence shows that the landowners

and public have accepted the use of the route as a public right of way. Section

118A of the Highways Act 1980 ( the 1980 Act ) does not require the route to

be either recorded or publicly maintainable; it refers to a 'footpath', which

section 329 of the 1980 Act defines as a highway over which the public have a

right of way on foot only, not being a footway.

11

2. Although ev.idencerelating to the historic development of the Order route and

the railway is conflicting, I understand some' feel that the railway has been built

on an existing right of way and more should be done in relation to the public

rights. The Friends of Long Rock Mexico Crossing ( the FOLRMC )rightly say

that new level crossings would generally be avoided, with an expectation for a

grade separated crossinq/ from the outset.

I

consider that the introduction of

the relevant legislation, through the Countryside and Rights of Way Act 2000,

to-enable-the stoppinq up of riqhtsof way crossifi~~rrailways,was in recognition

of the potential conflict between these land uses.

Clartficatlon of Order

3. The Order as drafted does not specifically refer to the width of the route to be

extinguished, however, it is,abundantly clear that all parties understand that it

1

The Order refers to 'Mexico Inn Pedestrian Crossing', however, most part ies have referred to 'Mexico crossing'

and, for the sake of brevity, I shall refer to it as 'Mexico' in this decision.

2

For example a bridge over, or tunnel under, the railway line

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7.

ORDER DECISION FPSjD0840j3j3

is the full extent of the public rights which are affected. To avoid any' possible

doubt on the matter I intend to remove the term ...of the length ... set out in -

_he second paragraph of the Schedule. I am satisfied that this minor

modification causes no prejudice to any party and need not be advertised.

PROCEDURAL MATTERS

4. I held a pre-Inquiry meetinq on the 13 August 2014, having made an

unaccompanied site visit on 12 August. Followingthe pre-Inquiry meeting, at

the request of the parties, I walked Footpath 3 ( FP 3 ) on the afternoon of 13

August; made an access required site visit on 20 October, where the level

crossing at Mexico was reinstated for me to cross and I also viewed trains

passing from the trackside, as well as at Long Rock crossing C'LRC ); and on

, 23 October I made an evening visit to a footbridge and user worked crossing

( UWC ) at Ponsandane, west of LRC,as well as viewing the lighting

arrangements associated with the closed circuit television ( CCTV ) at LRC.

5. I held a Public Inquiry into the Order on 21 - 29 October, excluding the

weekend. Unfortunately, due to venue availability, it was not possible to

organise an evening Inquiry session. No-one requested an accompanied site

visit following the close of the Inquiry.

MAIN ISSUES

6. The Order has been made as it appears to the OMAthat Mexico should be

extinguished in the interests of the safety of members of the public. Before

confirming the Order I need to be satisfied that it is expedient to do so having

regard to all the circumstances, and in particular to:

(a) whether it.ls reasonably practicable to make the crossing safe for use by

the public, and

(b) what arrangements have been made for ensuring that, if the order is

confirmed, any appropriate barriers and signs are erected and maintained.

The Raff-Erossing-ExtingtJishment-and-Blverslon-Brders-Regtrlations

1993

4

( th e

1993 regulations ) set out a 'Form of Request' for an extinguishment, to

including:

(i) the use made of the path, including numbers and types of users, and

whether there are significant seasonal variations, giving the source for

this information;-

(ii) , the risk to the public of continuing to use the crossing and the

circumstances that have given rise to the need to make the Order;

(iii) the effect of the loss of the crossing on users, in particular whether there

are alternative rights of way, the safety of these relative

.to

the existing

rail crossing, and the effect on any connecting rights of way and on the

network as a whole; ,

(iv) Theopportunltv for taking alternative action-to remedy the proolem-,-such-

as a diversion, bridge or tunnel, or the carrying out of safety

improvements to the existinqcrosslnq:

(v) the estimated cost of any practicable measures identified under (iv);

(vi) the barriers and/or signs that would need to be erected at the crossing,

assuming the Order is confirmed.

3

The village is shown as

l.oriqrock

on some maps but I shall use the preferred local spelling

4 Statutory Instrument 1993 No. 9

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8. The requirement is for the OMA to be satisfied as to. the expediency of making

the Order in the interests of safety of members of the public. The FOLRMC

argued that the crossing was safe in relation to a number of assessments

already made and should be opened immediately, although there may be some

minor safety improvements which could be made. Network Rail ( NR ) argued

that their assessment of the safety of the crossing should be relied upon.

9. As I need to consider whether it is reasonably practicable to make the crossing

.safe for public use, I must first be satisfied that such measures are required

and so I shall consider the arguments made in this respect. There were

disagreements between the parties as to whether there were, or were hot,

reasonably practicable measures to improve safety. It was suggested that the

1980 Act only referred to safety in relation to the physical features of a

crossing, and NR were dealing with a situation where they themselves

identified the risks to arise from the way in which users were using the

crossing. I agree with the ORRthat the reference in the 1980 Act to safety to

the public is not confined to physical features of the crossing.

10. The objections to the Order centred on the desirability of keeping the route

open, as it was used by local people and visitors to access the beach, the South

West Coast Path and the cycle path in this area. Whilst those supporting the

Order argued that alternatives were available for such access, which would be

improved as a result of the Order, objectors argued that the available

alternative routes were not as safe or convenient as the Order route itself.

11. I was asked 'to consider. the overall health of the population, if they chose not

. to access the beach anyrnore, as a result of the changes. NR argued that

'health' and 'safety' were two separate

concepts,

with which I agree, however,

my understanding of the argument of the FOLRMCwas not that the two should

be considered together but that 'health' weighed in the balance of my

consideration of 'all the circumstances'. Similarly, arguments were made as to

the effect upon local businesses as a result of the closure of the route.

12. I agree withNR that the matters to which the legislation requires me to have

particular regard are the practicability of making the crossing safe for use by

the public and the arrangements for barriers and signs. Other matters fall into

the wider expediency test but are not the primary focus.

RE SONS

Background

13. A report under Rule 43 of the Coroner's (Amendment) Rules 2008 related to an

Inquest concluded on 7 December 2012 into the death of Mrs Nicholls, who was

struck by a train whilst using Mexico pedestrian railway level crossing in the

Parish of Ludgvan on 3 October 2011. The Inquest was held by

a

jury and the

Asststant D =P Jtycoroner.Ctbe APC } took the view ...that t ]isJQQ.tJ;[o$sing 'is

dangerous, could lead to other fatalities and should be closed.

14.Following receipt of the Coroner's report the OMA temporarily closed Mexico on

21 December 2012, using powers under the Road Traffic Regulation Act 1984

5

On 15 March 2013 an application was made to the OMA, by NR, to permanently

extinguish Mexico.

5

I note concerns that the temporary closure has been extended and it was suggested that this was beyond the

powers of the OMA. This is not a matter for me to consider. .

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ORDER DECISION FP$/D0840/3/3

Descript ion of relevant locat ions and features

15.

The Order route is a short section, of

9

metres, running between points A and

. Bas shown on the Order map. Until December

2012

it was maintained as a

level crossing over the main railway line between London and Penzance. There

are pedestrian gates in the line of the fencing on either side of the track and.

signs to

Stop, Look, Listen. Beware of trains

( 5LL signs ). Mexico is a

'passive crossing', which arethose reliant on the user for their safe operation.

16. Penzarice railway station is situated to the west of the Order route, on the

'down' line, with the first station to the east, on the 'up' line, being St Erth.

This section of the railway line. is single track with a double track to the east,

just out of view of Mexico. As noted in the Rail Accident Investigation

Branch

Rail Accident Report ( th~ RAIB Report ) of June 2012

7

there is a low bank on

the southern side Ofthe railway line, which restricts views to the east, around a

curve in the track. Whistle boards are sited both east and west of Mexico,

indicating the points at which train drivers need to sound their horn to provide

a warning to pedestrians.

17. Approximately.

200 metres

along the railway line to the west is LRC,a shared

pedestrian and vehicular level crossing which has 'wig-wag' warning lights and

barriers to' prevent access when trains 'are.on the track. LRCprovides access'

to a public car park, and to the beach, to the south. Adjacent to LRC,to the

west, isthe Long Rock Maintenance Depot. ..

18. The village of Long Rock lies to the north of the railway line and residential

street, known as Beach Terrace, joins Mexico to the road which runs through

Long Rock, from Penzance in the west to Marazion and St Michael's Mount in

. the east. The Mexico Inn public house lies to the west of Beach Terrace, with

the Long Rock Stores ( the Stores ) to the east. On the opposite side of the

road is the Mount View public house and a little further to the north-east, off

the. main road, is the. post

office.

The main residential area of the village lies to

the north-east of Mexico.

19. Following Long Rock Road to the east, outside the limits of Long Rock in the

direction of Marazion, is the Station House Bridge ( the SHB ) which provides

access over the railway line. South of SHB is a public car park providing access

to the beach and with facilities of a shop and public house.

. 20. To the south of Mexico is a public footpath, which is also used as a multi-use

trail, part of a promoted cycle route and the South West Coast Path. Directly

south of Mexico access is provided down to Long Rock beach from the raised

level of the multi-use path and sea defences. .

6

The RAIB was set uR in 2005 and investigates accidents in order to make recommendations about safety to the

Secretary of State. RAIB's reports may be used by a coroner to establish cause of death and to make Prevention

of future death reports.

7

Report 10/2012

8 I shall deal with the issues arising from references to the distance between the two crossings as appropriate

4



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ORDER DECISION FPS/D0840/3/3

afety of the

crosslnq

Legislation

21. This area of NR's work is governed by the Health and Safety at Work Act 1974,

which places a statutory duty on them in relation to:

(a) securing the health, safety and welfare

of

persons at work;

.(b) protecting persons other than persons at work against risks to health or

.safety arising out

of

or in connection with the activities

of

persons at

work. .

22. A level crossing provides a point of interaction between the main activities of

NR, in providing a railway network and so creating a risk, and the general

public, who are not persons at work for NR but who may require protection

from the consequences of that risk.

23. The Office of Rail Regulation ( theORR ) say that the

Management

of

Health

and Safety at Work Regulations, 1999 places specific duties on employers to

undertake risk assessments, to identify risks that can be completely eliminated

(the preferred solution in health and safety law) and otherwise identify

measures which can be taken to reduce the risks: Their strategy for health and

safety regulation of level crossings sets out that they support the closure and

removal of crossings, with all risk assessments considering closure first.

24. I need to be satisfied as to the safety, or otherwise, of the relevant crossing .

. .As noted, the 1993 regulations set out that in making their application, NR

should provide information on a number of matters, including ...the effect of

the loss of the crossing on users, in particular whether there are alternative

rights

of

way, the safety

of

these relative to the existing rail crossing... .

25. NR do not appear to have made such an assessment,except in relation to the

railway itself, relying instead upon the OMA. Section 118A(1) of the 1980 Act

sets out that it must appear to the council that it is expedient to make the

Order ...in the interests of the safety of members of the public using it, or

likely to use it... . Despite arguments that the OMA decision-making process

was flawed, and that there were internal disagreements as to the safety of

Mexico, the matter was taken before the Cabinet and their recorded, and

legally unchallenged, decision was that the Order should be submitted to the

Secretary of State for confirmation. The OMA took an active role in the

Inquiry, supporting the confirmation of the Order. .

Policy

26. In March 2014 the House of Commons Transport Committee ( the HOCTC )

published a report on Safety at level crossings. The report sets out that level

crossings in the UK are generally safe, with improvements seen in the five

years from 2009, NR having committed itself to reducing risk at level crossinqs

by 25% over that period. Like the FOLRMC,the HOCTCidentified that NR has

been able to improve safety by closing level crossings, but further

improvements may be progressively more difficult to achieve.

27. The HOCTCindicates that there are significant safety risks, with level crossings

representing half of the non-suicide, non-trespass fatality risk on the railway.

It sets out that the aim should be to aim to eliminate accidental deaths at level

5

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crossings with a recommendatipn that the ORRadopt an explicit target of zero '

fatalities at level crossings from 2020. The ORRexplains that this is not

binding, but they find it significant and highly influential.

28. The HOCTCreferred to the Law Commission having recognised that decisions

about level crossings involve striking a balance between the convenience to

communities in being able to cross a railway and public safety. It is clearly the

view of a number of objectors that this has led to an aggressive attitude

towards closing level crossings, without proper reference to the wider impacts.

The Law Commission recommendedthat consideration of the closure of level,

crossings should be based on a public interest test, considering a number of

factors, including the safety of the public; convenience of the public; efficiency

of-the transport network (including the network of public paths); cost of

maintaining the crossing; the need for the crossing and its significanc;efor the

local community (including the protection of heritage); and, the costs and

environmental impact of any works needed to replace the 'crossing or upgrade

other crossings. The HOCTCalso called for the addition of a public safety test

with respect to any alternative or diversionary route. .

29. Although I was made aware that the Department for Transport had commented

onthe Law Commission proposals, I am determining an Order made under

specific legislation. I take the view that the 'all other circumstances' that I

need to consider under the 1980 Act relates to points raised by objectors,

which reflect many of those referred to by the Law Commission. I shall

consider them in relation to expediency, as set out by the 1980 Act.

30. I consider 'that the legislative and policy background demonstrates the pressure

upon both NRand the ORR, in order to reduce risk. However, ultimately, their

focus ison the railway line interaction and both NR and ORRstated that the

other issues that may need to be considered were outside their areas of

expertise. I agree with the FOLRMC,and other objectors, that in relation to my

decision, the safety issues relating to Mexico cannot be considered in isolation

to the widerrssues Identifled.:

Safety

of

Mexico

The circumstances that have given rise to the need to make the Order

31 . Inspections were carried out in the two days immediately following the 2011

fatality by the ORRand NR. The ORRproduced a report, dated 14 October

2011, which found that Mexic;oreaches the ORRpublished safety standards,

and was broadly compliant. The Approval Officer's Considerations, which post-

date the RAIBreport referred to below, indicated that there were wider'

national issues emerging from the accident, relating to the issue of low-tone

horns; the location and marking of decision points; and, the development of

cheaper-warning methods for-footpath crossings;-- --- - - - ---

32. note that the ORRstated that ''An approach was made to the local ~uthority

to discuss the possibility

of

closing the crossing prior to the fatality but

feedback suggested local opposition which, given that [LRC] is only 200 metres

further west and would provide a logical and suitable alternative crossing, is

disappointing. However, NRshould continue to liaise with local authorities to

push the case for closure.

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33. The RAIB report made five recommendations, which related to improvements

to sighting and warning arrangements for pedestrians using Mexico; developing

a' national approach for the location and marking of decision points at level

crossings; optimising warning arrangements for pedestrians at level crossings

provided with whistle boards; a recommendation to the Rail Safety and

Standards Board Ltd ( RSSB ) regarding improving intelligence on near miss

incidents at level crossings, enhancing the review of the effect of changes

made in 2007 for sounding train horns at whistle boards; and, one to First

.Great Western, the relevant train operator, regarding the testing of horns after .

a train has been involved in an incident or accident. Supporters to the Order

have pointed to many comments within the MIB report which they feel

demonstrate that Mexico is unsafe, and so should be extinguished.

34. The closure followed the report of the ADC, who ...took the view, after hearing

the evidence or...the Rail Safety Inspector, that this foot crossing is dangerous,

could lead to other fatalities and should be closed. J understand that in fact

there is a gated barrier operated level crossing only 200 yards further down the

line, so that any inconvenience will be minimel.

The Rail Safety Inspector

referred to by the ADC was the RAIB Inspector. In reply to questions raised by .

. the FOLRMC,the RAIBstated that

The RAIB has not recommended closure of

. the crossing. You will note that recommendation

1

from the RAIB's...report is

concerned with safety improvements that can be made at the crossing rather.

than closure...[X] represented the RAIB at

[the]

inquest ...the presentation ...was

based wholly on the findings of the RAJB'sinvestigation, and thus did not

recommend closure of the crossing... .

35. I do not have the evidence put before the inquest, leading to the

recommendation for closure and the application to the OMA. Whilst I do, of

course, place reliance on the finding of accidental death, in relation to the

closure of Mexico there is a wider quantity of evidence now before me, which I

must take into account. '

36. The HOCTCrecord that NR states there are 680 level crossings within 200

metres of an alternative crossing. These are therefore prime candidates for

closure... .

Although I am sure there has been no deliberate intent to mislead,

LRChas been referred to as c l crossing 200 metres, or yards, from Mexico by

NR, the HOCTC,the ORRand the ADC. I consider thatthis has had the effect

of conflating two matters: one the safety of Mexico and the other the

availability of an alternative, which may. not, in reality, beof such minimal

inconvenience as '200.metres' might suggest. I will consider the issue of the

alternative routes in relation to the actual distances relevant to users.

The risk to the public of continuing to use the crossing.

Quantitative modelling

&

Health and Safety Executive Tolerability of Risk

Framework--- ~ - ----- - -

37. NR uses a model known as the All Level Crossing Risk Model ( ALCRM~')to

assess risk at level crossings. This generates two risk scores: the risk of a

fatality per year for an individual user, based on 500 traverses/year, with A the

highest risk score and M the lowest; and, a collective risk of fatalities and

weighted injuries ( FWI ) per year, scored 1 highest value and 13 the lowest.

7



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ORDER DECISION FPSjD0840j3j3 ,

38. TheRAIB report referred to risk scores for Mexico of CS, C2 and C6 in 2007,

2009 and '2010 respectively; with the current ALCRMrisk score being C2.

FOLRMCsuggested that only the individual risk should be taken into account

and argued that the 'C' category, not being on a linear scale, did not mean that

Mexico was unsafe. Whilst there was criticism that most footpaths were

included in category C, I consider this a fair reflection of the risks on such

crossings; identified particularly by the RSSB. .

39. The HOCTChave raised concerns regarding ALCRM, in particular the fact that

, . the crossing usaqe inputs are mostly based on a 3D-minute census during a

,weekday, off-peak period, and sodo not take account of crossings with high

seasonalvariations, such as those near beaches. It seems from the

information provided by fOLRMC that the number of users has generally been

underestimated, with NR not having taken advantage of suggestions within the

ORRguidance on census methodology. NR failed to provide information in:

their application to the OMA on ...

the use made

of

the path, inclUding numbers

and types of users, and whether there are significant seasonal variations,

giving the source for this information ...

~s set out in the 1993 regulations.

40.

I,

agree with the ORRthat both individual and collective risks are relevant; a

high collective risk means that more individuals are being exposed to the risk.

and, in my view, this cannot be ignored. A document .presented to the Inquiry

WaS the RSSB report of'Research into the causes of pedestrian accidents at ,

level crossings and potential solutions'; published in July 2014 ( T984 ). The

: Executive Summary of T984 sets out that the objectives were to:

Establish the causes of pedestrian accidents_at level crossings

Improve or promote any existing, and identify any new,' mitigations that

offer cost-effective solutions to reduce pedestrian risk.

41. As polnted out in T984 there is, unsurprisingly, a strong link between the

occurrence of pedestrian accid_e, ~and the pedestrian moment

9

It was noted

that the greatest number of pedestrian train strikes, and FWI arising from

those incidents, arise at footpath crossings, accounting for 41% of the total.

The RSSBAnnual Safety Performance Report 2013/14 ( the ASPR ) indicates

that 12% of-fatality risk is to pedestrian level-crossing users. The pedestrian

moment, in combination with the crossing type, is the single most dominant

influence on level of risk.

42. NR state that an individual risk of A ,- C, combined with a collective risk of 1 ~

3, identifies a high risk crossing within their criteria. Information was provided

to show that Mexico ranked 7 in total FWI score when compared to all footpath

level crossings on the Western route and 17 when compared to all level

crossings on the Western route. On the national rail network Mexico ranked 59

in -cornparlson to all footpath level crossings and~59 in comparison to all level --,' --,

crossings. Using the figures from the HOCTC,which could be slightly out

o f

date as closures may have subsequently occurred, Mexico appears to be in the

top 5 % of the FWI score nationally for both level crossings generally and -

footpath crossings in particular. .

9 Pedestrians per day x trains per day

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43. I agree with the West ,Cornwall Footpaths Preservation SOciety ( the WCFPS )

that there is a risk in relying on the ranking of crossings; as crossings are

closed,' previously 'safe' crossings become closer to being the most dangerous.

However, I am satisfied that, from NR's viewpoint, Mexico is a high risk

crossing. ,The question posed by the FOLRMCis whether that risk is high in

comparison to risks which may be acceptable to the general public and for this

they rely upon the Health and Safety Executive ( HSE ) Tolerability of Risk

, framework ( TORF ) which is helpfully explained in the document

'Reducing

Risks, Protecting People', submitted to the Inquiry by the ORR.

44. HSEset out that their general thrust in application of the TORF is inherently

precautionary, to lead to control regimes that improve or at least maintain '

standards, while retaining principles of proportionality. The three zones within

the TORFare 'Intolerable', 'Tolerable' and 'Broadly Acceptable'. Risks within

the intolerable region would be unacceptable,' whatever the level of benefits

associated with it. HSE states that risks falling into the broadly acceptable

region are generally regarded as insignificant and adequately controlled,

although duty holders must still reduce risks wherever it is reasonably

'practicable to do so or the law requires.

45. Risks within the tolerable region are typical of those from activities that people

are prepared to tolerate in order to secure benefits. The risk is sufficient to

justify further steps be made to reduce and keep risk as low as reasonably

practicable ( ALARPII). The risks should be periodically reviewed to ensure that

they still meet the ALARPcriteria, taking account of new knowledge about the

risk or new techniques for reducing or eliminating it. '

46. The FOLRMCdrew my attention to the response of NR to the HOCTCwhere a

suggestion was made that the 1 in 10,000 risk defined the risk of death to an

individual where the risk was imposed on them; NRfelt that a user could

.decide

whether or not to cross or use other routes and, therefore, this limit

should not apply to level crossings. The ORR, who are the regulator in this

case rather than HSE, shows the boundary between intolerable and tolerable to

be at 1 in 10,000 and that between tolerable and broadly acceptable to be 1 in

1,000,000 and I rely on these as the, appropriate limits, reflecting the indicative

criteria for risks, such as this, entailing the risk of individual or multiple deaths.

, 47. NR initially made a mistake in presenting data on the individual fatality risk,

which caused some initial confusion. There was a good deal of argument as to

the 'danger' of the agreed risk of 1 in 23,500. Despite further mathematical

errors arising from the ORRuse of logarithmic scales, I am satisfied that the

FOLRMCare correct in stating that the risk lies closer to the broadly acceptable

zone than to the unacceptable, or intolerable, zone In the TORF.

48. HSEstress that the TORF provides guidelines to be interpreted with common

-,sense,-which may need-to be adapted to take account of societalconcerns or-

preferences. It suggests that although experts may regard the control

measures as adequate, the view may not be shared by society as awhole, as

established through existinq democratic processes and regulatory mechanisms.

49. With Mexico ranked at 259 in comparison to all level crossings, but still falling

well within the tolerable' zone, it is difficult to see how the HQCTCreached the

conclusion ...that there may be many hundreds of crossings which exceed

Health and Safety

Executive

guidance on the acceptable level of fatality risk to

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11/45

ORDER DECISION FPSjD0840j3/3

the public. It seems to me that the HOCTCreflects a societal concern, with

the introduction stating that Although the safety record of Great Britain's level

crossings has improved in recent times, .concerns have 'been expressed about

.whether Ne.twork Rail is sufficiently focused on protecting the safety of road

users and pedestrians who traverse them; There have been a number of high

profile accidents for' which Network Rail has been criticised for ignoring prior

warnings that level crossings were unsafe and for shabby treatment of the

-relatives

of

those killed. - .

50. I am well aware that the vast majority of the objectors are part of the society

of Long Rock and feel that their concerns, expressed by some by reference to

the Localism Act 2011, have not beentaken into account. There were

comments that decisions have been taken by those not living in the area, with

mention made of the objection to closure by locally elected bodies: Ludgvan

Parish Council, the local County Councillor and the local Member of Parliament .

. I understand that people feel that matters have not been properly understood

or considered. In reaching my decision on this case I have tried to balance the

wide range of competing concerns that have been put before me.

Narrative Risk Assessment

51. Whilst the FOLRMCnoted that the ALCRMinputs should average across the

country, taking account of the various conditions at all the different level

crossings, the failure to incorporate local factors into the ALCRMmodel has

been raised by both the HOCTCand the RAIB. I note that the HSE refer to

providing a

'full

picture' of risks generated by a ,hazard, which may be

supplemented by assessments of particular groups of people interacting with

the hazard in a certain way, or who are particularly vulnerable to it, a slice of

time and/or particular locations.

52. This has led to NR moving to the situation where ALCRMis used to identify the

'at risk' crossings with .local features taken into account by local Level Crossing

---Man ag@r:-C'CM )/w-I:1Q-w-il-I~l:1a-v@-g-Fea-ter--farn-il-i-aFi-t-y-W-i,t;A-a-paFtietllaF~1veI

crossing, carrying outa 'narrative assessment'; There was no LCMin place in

relation to Mexico prior to the temporary closure and soan historic 'familiarity'

is not available.' NRreferredto issues which they felt reflected greater risk at .

Mexico than was being shown by the ALCRMcalculation alone. I shall deal with

the issues referred to which I consider assist in the recognition of factors which

may be relevant specifically to Mexico.

53. I agree with NRthat it is not appropriate to simply rely on numbers and

statistics to make this decision; they are just one piece of the information.

Near miss data

,54.J JR,_tbe_ORRand supporters said that near misses were a key precursorto

accidents, as said in the RAIB report. _The RAIB noted that it was important for

L the railway industry to have the data necessary to understand the riSing trend

_n near misses at level crossings so that appropriate action could be taken,

55. There was disagreement as to whether the near miss data was predictive. I

agree with the objectors that there is no obvious ratio in the 'data, with near

miss reports almost doubled over a decade but no upward trend in fatalities. I

agree with the Ramblers that there it is likely that there will be more near



12/45


misses on crossings which are frequently used; this may point to NR needing to

undertake further work to identify use but does not, of itself, point to a risky

crossing. The ASPRmakes the point that only one in three reported near

.rnisses with pedestrians/cyclists' occur on footpath crossings, however, more

than half the fatalities of these users occur on these types of crossings.

56. Whilst suggested in objection that the near misses provided a convenient and

emotive argument, without scientific substance or predictive value, I consider

'that the point of near miss data is not that it is quantitative but rather that it is

qualitative. I consider the best use of the data is to see whether there is a

trend in incidents, pointing to a particular issue at a crosslnq, which should

then be ameliorated.

.

57. I agree with objectors that near miss reporting is subjective; incidents reported

separately to the Inquiry, or to NR, by users or those who had observed

incidents at Mexico, did not correspond to records within the' British Rail

Information Management System ( BRIMS ) or the Safety Management

Information System ( SMIS ). On the other hand, a number of objectors made

the point that they had used Mexico, often with family members, and had not

had a near miss in all their years of use-. One objector was a former engine

driver, who worked on this section of track and indicated that he had had no

problems at all in relation to Mexico.

58. Recording of near misses is dependent on the train driver's view of the incident

and NRsay they tend to use the criteria such as whether they have engaged

the emergency brake. The ASPRindicates that reportinq.is likely to be

influenced by factors such as ease of reporting andperceived effect, whilst,

objectors suggested proximity to the 'end of the line' might be a factor. I ,

,agree with the objectors that it would be'helpful to .have criteria for drivers, to

identify common factors, such as age/ gender/ local people, visitors, time of

year and weather conditions, although there will be limitations on identifying

and recording such data.

59. NR initially referred to 10 years of near miss history/ which was the period

referred to in the RAIB report. Following a request from a supporter to the

Order/ NR carried out a further search to identify any other references to'

Mexico in older records/ including those from BRIMS/ used until the

introduction of SMIS in 1998.

60. This identified four reports in the period 1991 - 1993 and NRindicated that

they had been aware of two reports of vandalism in 2004/ but had not

mentioned them previously as they had not thought them relevant. No

incidents were recorded in the years 1988/ when BRIMS was introduced/ to

1990/ or in 1994 - 2006/ with the exception of the vandalism. It is possible

that there are further records which have not been identified. It is also

- possible that drivers were not reporting incidents; the ASPRindicates that

under-reporting is difficult to identify and can have a significant impact; with

potential underestimate of risk.

61. Having noted a significant change in the incident history from May 2007/ the

RAIB queried whether the move to a single-tone train horn was a factor.

Although the RSSBfelt it unlikely that there was a significant alteration

nationally since the change/ there appears to be further work be done.

However/ I consider. it significant that this coincided with the introduction of

www.planningportal.goY.uk/planninginspectorate

11


13/45

ORDER DECISION FPS D0840/3/3

Mexico as a separate asset for reporting. It seems to me that the availability

of it in the asset list allowed for ease of recording. Whatever the reason, I am

not satisfied that the small number of recorded incidents in the period prior to

2007 means that Mexico is safer than thought, as sugge~ted by FOLRMC.

62. Looking at what the data may indicate, there are limitations as to what is

known from each of the incidents. The RAIe indicatedthat six of seven

instances involved diesel multiple units, the same as, or similar to, the class

150 unit involved in the 2011 fatality. A supporter to the Order said she found

these trains to be virtually silent. Seven incidents related to down trains and

four to up trains. Again this reflects the fatality, which occurred on the down

line, although two of these appeared to be 'misuse', with children playing

'chicken' and someone jumping up and down on the line. Eight cases involved

,females compared to three identified' as males and whilst there is no reason

that women should be at greater risk, T984 found more men to be involved in

fatalities than women; I consider that the apparently hiqherJevel of use by

women indicates a high level of general use, which does not seem to have been

taken into account by NR initially. Four instances involved dogs and two

referred to bicycles and pushchairs. .

63. Despite the misgivings of the objectors, I agree with the ORRthat the near

miss data is indicative of an issue at Mexico. In particular there appears to be

a tendency for issues to arise in relation to the down line, which, when crossing

from the south, is the worst direction for sighting time, although the data

before me is insufficient to show in which direction the pedestrians where

travelling. There also appears to be an issue regarding the quieter trains on

this line, which are the local trains. The near miss incidents do,raise concerns

for me with regard to public safety.

Previous' requests (or closure

64. I note the point that neither the RAIB nor.the ORRsought closure of Mexico

-im mediat@l-y-fo-I-lo-w-i-r:l9-tl:ie--20-1-1-fata,lit-y.-I-t---S@@n:ls-to-De-aGGeted. that NR had

discussed, or requested, closure of Mexico in 1991, 2007, 2009 and 2010. .I

note that the OMA only refer to issues being raised in 1972, 1991 and 2007.

No copies of requests or applications were provided .

. RAIB Recommendation la - Improvements to sighting towards the east for

pedestrians on the south side of Mexico '

65. The RAIB noted that the view to the east is partially obscured by an equipment

case and

siqnalpost,

although an approaching train could still be seen, dueto

its height and width. Having observed a train approaching down line, from the

southern side, I agree that the equipment in this area,causes an unnecessary

obstruction to views and I bear in mind the apparent higher propensity for

+near-rnisses on the-down-line.

RAIB Recommendation lb - Determine the optimum position

of

the whistle boards

at Mexico and make any required adiustments

66. The RAIB noted on their inspection that the horn was only audible 50% of the

time. It was also noted that there was an influence on the audibility arising

from the location, of the user at the time the horn sounded the bank to the

east, prevailing westerly winds, the impact of noise from the sea and possible

2

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14/45


confusion with ship horns. These are site specific factors which raise a concern

to me with regard to Mexico.

RAIB Recommendation 2 - Identify data to be captured in SMIS to inform future

decision-making and enhance the review of the impact of sounding only the low

tone of the warning horn

67. Whilst there was no discernible national trend to show fatal accidents, or near

misses, increased after 2007, following the change in policy, the

recommendation was concerned with identifying additional data to capture

through SMIS to allow a better review of the impact of the change. This could

also lead to improved data capture for general risk analysis.

RAIB Recommendation

3 -

Identify the optimum decision point at each footpath

.and UWC crossing used by pedestrians: mark and sign the optimum decision point

at each crossing: .use the decision point in estimate of sighting distance: and, brief

staff with regard to this approach

68. The ORRLevel crossings: a quide for managers, designers and operators

indicates that a sign explaining how to cross safely should be displayed at the

decision point, not less than 2 metres from the nearest running rails. In

practice this is taken to be the SLL sign and it was noted bythe RAIB that the

southern SLL sign was placed further from the running rail at the time of the

fatality, being moved from 3.4 metres to the 2 metre distance in January 2012.

There appears to be general agreement that 2 metres provides a safe point

from which to make a crossing decision, however, the RAIB recommendation

also relates to the wider crossing network. .

Vulnerable users - visitors

69. In their application to the OMA, NR identified increased use during the summer

. months by visitors/holiday makers accessing the coast. They stated that,

although compliant to all safety recommendations, it is most likely being used

by pedestrians who may have no experience of crossing railways, which was an

unacceptably high risk factor.

70. The FOLRMCrelied on T984 to show that there was no additional risk to

.

unfamiliar users over those familiar with crossings.T984 said that regular

users were more likely to perceive crossing risk as low and, therefore,' fail to

follow safe crossing procedure. Whilst there was no overall evidence for either

group being more at risk, neither does it mean that either are less at risk.

71. T984 notes that user encumbrance is a risk factor, whether in relation to dogs,

bicycles, or carrying objects, such as lnflatables to the beach. There is

evidence of use of Mexico by people with bicycles, fishing tackle, kayaks and

pushchairs, which similarly may cause difficulty ill use of the gates and a larger

'footprint'for the user-.--Beingaware the 1-9l-2--fatalitywas of a person with a ---

dog, and bearing in mind that tourists, and locals, ac:cessingthe beach are

more likely to be 'encumbered', I consider that the use of Mexico has features

which are of concern in this respect. .

72. I also take account of the fact that a large number of people have indicated

that they do not feel Mexico is unsafe, which will of itself potentially give rise

to, entirely unintentional, risk taking .. As set out in T984, the majority of

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accidents occur where users believe their behaviours are 'safe' but where

ultimately they are struck by a train.

Vulnerable users - children

73.

There was some argument as to whether children were vulnerable users, with

the FOLRMCnoting that the 0 - 9 years of age category has the lowest number'

of fatalities per million. I agree with them that this is likely to be related to the

accompaniment of users of this age by others, for example parents looking

after them. The ASPRnotes that fatalities to children, under the age of16, are

relatively rare, although due to their distressing nature they receive a greater

degree of media focus, reflecting societal concern.

74. There was disagreement as to whether the spike in the 10 - 19'age group

indicated a risk to 'children' or was indicative of risk taking behaviour, such as

'playlnq chicken', by older teenagers. The data before me is insufficient to

reach a conclusion, however, I note that one recorded incident at Mexico was

of this type of behaviour. T984 suggests that youths would be more able to

jump outof the way, although that there remains a risk of a slip or trip.

Vulnerable users - the elderlv

75. Also of concern were users over 65 years, who are involved in a

disproportionately higher number of train strikes than other users. Both sides

raised the importance of this point in relation to Mexico, with the FOLRMC

arguing that Mexico allowed this group to benefit from the use.

76. I agree with those who point out that NR has not carried out the surveys it

could reasonably have been expected to, to identify numbers and types of

users here, The Level Crossing Risk Management Toolkit ( the LXRMTK ), run

by RSSBto provide options for mitigation, and the ORRrefer to a range of

, methods to collect census information, none of which appear to have been

acttvely.ernploved here. I consider that the best available information for the

age profile-cumes-frum-th-e-RAtB-rep-o-rt;-wh-o-se-own-ohservati'ons-dentlf ed a

high proportion of elderly users. , In addition; I noted that a number of

objectors referred to themselves as older or disabled and so having difficulty in

using the alternative routes in comparison to Mexico. J

77. I note that the ORRALCRMreview, 2008, indicated that the overall estimated

risk was not adequately dealt with using the slower walking speed; it was'

noted not to be sensitive to local factors that may influence pedestrian risk.

The issues around this, age group relate to the llkehhcod of having time to cross

after becoming aware of a train approaching. There was concern that the sight

time, particularly in relation to down trains from the southern side of the line, '

,was short and may not provide sufficient time for users to cross, particularly

vL lner.aQI~users,.QDc~iLtrain was seen, The_QRR,report fOJdndJJH~,~lg~ting , __

distance, which affects the available time for crossing, to be adequate. The

RAIB found that, from 2 metres from the nearest rail, there was sufficient

sighting time to allow all users to cross, although at the slower 0.8 mjs there

was only 1.5 seconds to spare. I note the comment made in support that an

allowance of 1.5 seconds is given for drivers to respond to an unexpected

hazard. However, I also note that T984 found a lack of strong evidence that

accidents were more common at passive crossings with short sight times,

suggested to be because people would be more cautious.

14



16/45


I

78. Whilst the sighting times are just enough for these 'vulnerable' users, in my

view the margin of error is very small; with the issue of quieter trains

approaching on the down line, which are less likely to be heard by those with

hearing impairment, often the older generation, and shorter sighting times

crossing from the south, I consider this to be a particular factor. I consider

that there is evidence to suqqesta high proportion of elderly users here and

they are likely to find the crossing time limits their ability to cross safely.

Vulnerable users - dog walkers

79. The fatality in 1972 seems to have been related to the person trying to catch a

dog. Whilst I heard evidence that the incident occurred a little to the east, I

am satisfied that the lady was, most probably, using Mexico; it seems her dog

escaped and,she was trying to recover it. FOLRMCpointed out that dogs were

identified in T984 as a recurring theme, with dog walkers accounting for 17%

of train strikes and the ASPRnoting 13%' of near misses mentioning dogs,

although I am unclear whether these are significant figures in relation to the

overall dog-owning and/or dog-walking population.

80. In relation to Mexico, there is no breakdown of the users with or without dogs,

although a number of objectors referred to dog walks as one of the reasons for

using Mexico on a regular basis. Dog-walkers do tend to be more regular

walkers than the general population and I agree with the FOLRMCthat NR have

failed to identify a factor which seems likely to give rise to a higher risk arlslnq

here. As noted, dogs were identified in four near miss incidents.

Train frequency

81. Another 'point made in T984 is that low train frequency influences risk, with a

proportional sense of risk only maintained where services are relatively

frequent. Mexico falls into the category of


17/45

-----.

ORD~R DECISION FPSjD0840j3j3

indicated that the ALCRMrisk assessments for LRCwere HS, K8 and

G4

in

2007, 2008 and 2009 respectively, which they are satisfied is low risk.

.

.

84. The FOLRMCraised concerns that whilst the pedestrian/train risk may be low,

, the interaction between pedestrian/vehicle was high. Ih relation to the road

leading to LRC,there is no separation between pedestrians and vehicles, which

,may leave some walkers feeling vulnerable. I note from the FOLRMCsurvey'

that

62% of those replying found the route dangerous. However, having

visited the area during the peak summer period and the October half-term

holidays, when both pedestrian and vehicular use might be expectedto be at a

high level, I did not feel any concern in using the road. It is a short stretch,

ending at the car park, so there is no through-movement of traffic and these

factors combine to mean that overall traffic speeds appear to be low.

85. I was told of an incident involving a pedestrian being brushed by a car, leading

to bruising, and another of someone being knocked off their bicycle; neither

event appears to have been reported to relevant authoritles, NR and the OMA

have reached an

aqreernent ?

for improvements to be made to this stretch of

'road, paid for by NR, if the Order is confirmed. I consider that the provision of

a footway will be of assistance in separating vehicles and pedestrians giving'

qreatersafety and perception of safety. According to the ORRLevel crossings:

a guide for managers, desiqners and operators

it appears that LRCmay already

'be falling below best practice in not making such pedestrian provision.

86.

Of course, bicycles are vehicles and so will remain in the main traffic stream.

This may-not be an ideal situation, however, relying on the evidence of the

OMA in relation to risks on the roads, it seems that the risk is low.

87.

The improvements on the corner opposite Poniou Lane, in front of the car

rental company, should greatly reduce the possibility of use of this area for

parking vehicles, which could force pedestrians out onto the road. Comments

were made that the existing double-yellowlines on the access road were

..gn

0

reQ.----Th@r-e-will-g~nG-waiting-at-any-tirne -'F0aGl-rnaking

S R

ere and this is

a matter for enforcement by the relevant authorities.

88. Of course, there cannot be separation from vehicles on the level crossing itself,

however, this is a very short distance and I consider the plan for a section of

footway to the south-east of the railway will provide a visual aid tending to

. ~eep drivers to the west of the footway section.

,

..

.

89.

I was told that a child had recently been trapped by their clothing, being hung

on the barrier for a period of time. This seems a most unusual incident and

not, in my view, indicative that LRCis inherently unsafe.

90. Although I ,agree with objectors who say that the use of LRCdoes not remove

alldanqer, I am satlsfted.that it is safer than Mexico for pedestrians with _ ... __ ._.

regard to the interaction with trains. Whilst there is a need to then interact

with carsI consider that the risks are low, due to low traffic speeds over a

short distance, and that the agreed improvements will further reduce risk.

10 Dated 21 October 2014, with amendments signed 29 October and 3 November 2014

6



18/45


Road through Long Rock villeqe

91. From the northern end of Beach Terrace there is a

footway : ,

through Long

Rock both to the east and west. To the east the footway continues on the

southern side of the road to just beyond the 30 mile limit, past the roundabout.

Several properties have dropped kerb access across' the footway from the road

and there is a Pelican crosstnq east of the northern end of Beach Terrace,

joining the footways on either side of the road through the village.

92. To the west of Beach Terrace there is vehicular access to the cui-de-sac Castle

View and two entrances to properties on Bay Villa. On the corner leading to

LRCthere are light industrial Units, primarily used for car sales, maintenance

and rentals.

93. The footways are what might generally be expected in a village, with some

necessary residential access. The OMA had no records of accidents involving

pedestrians and vehicles within Long Rock and I see no reason why the road

safety record would be affected by the closure of Mexico, even with the

potential additional pedestrian use of some parts of the footway. I understand

that people would prefer not to walk alongside the road, or to have to cross

roads, even residential accesses. However, I do not consider that this makes

the road here a dangerous alternative to Mexico.

Nerezlon/Lonq Rock Road and SHB

94. To the east of the village limits the road continues towards Marazion as a

vehicular carriageway, with no separate footway. Although there are no

incidents reported to either the police or the' highway authority involving

pedestrians or cyclists and cars, information was given to me of near misses,

either observed or experienced. As in relation to the trains, I bear in mind that

near misses are subjective incidents.

95. From the FOLRMCsurvey, 76 people had chosen not to Use SHB as they felt it

too dangerous. Having walked as far as SHB itself from the car park on my

initial site visit, I can understand this view. I also note that 77% of those using

this route felt it dangerous. The survey does not compare the danger felt in

using the road to that of using Mexico, although anecdotally I am clear that it is

the perception of users that the road is more dangerous ..

96. I understand the concerns felt by local people at needing to walk along this

stretch of road. However, as part of the planned works, referred to above, the

OMA will be providing a footway along the entire southern side of this stretch of

road, over SHBto Old Station Lane. Some objectors felt that this would be

helpful but others remained concerned that this was a busy road and there

may be the possibility of conflict between pedestrians and vehicles.

97. Taking account of the expert evidence provided by the OMA in-this regard, I am ~.~ --

satisfied that the proposed changes will improve pedestrian safety, and

perception of safety, in -using this stretch of road. I understand that it may not

be as pleasant an environment for walkers as the multi-use trail accessed from

17

NSection 329 of the 1980 Act defines a footway as

a way comprised in a highway which also comprises a

carriageway, being a way over which the public have a right of way on foot only.

12

pedestrian light controlled crossing



19/45


Mexico, 'however, in my view, this does not weigh against the tests in

comparison to the safety of Mexico.

Road compared to rail

98. Supporters to the Order drew my attention to the HOCTC,which said that

unlike crosslnqa road, where motorists can swerve and brake and vehicles are

lighter than trains', the consequences of being struck by a train are almost

always very serious, if not fatal. If an average walking trip includes a level

crossing, the fatality risk to a pedestrian is about double the risk of an average

walking trip without 'a level crossing. _

99. On the other hand, objectors referred to distractions for drivers which could

cause accidents, such as using mobile phones or eating, feeling that train.

drivers would be more likely to concentrate on their job. Comparison, was

made with the number 'of accidents that.occur on roads, with comment that

roads were not closed in such circumstances.

100. The OMA indicated that the 10 year average was 5 pedestrian deaths per year

on roads in Cornwall but approximately half of the pedestrians involved in such

accidents were intoxicated. They felt thatthe number of near misses and

accidents on roads reflected the number of cars, which were far more frequent

than trains, such that the risk of dying asa pedestrian, particularlv a sober

one, was extremely low. . .

101. Taking account of all the evidence, I recognise the concerns but consider, even

if people feel worried, or unhappy, about using the road network, rather than

. Mexico, their risk is reduced by doing so. The provision of pavements will .

reduce that risk further and, in rnv.vlew.irnake the use of the alternatives more

palatable than at present. . .

Whether it is reasonably practicable to make the crossing safe for use by

the publ ic

--------

102. A number of objectors made suggestions for improvements, which they

believed could deal with any safety issues, allowing both sides to find a

solution; those wishing to use Mexico to be able to continue to do so; whilst

those who had concerns on safety could 'be satisfied, so far as possible, that no

further incidents could arise. I note the comments from both objectors and

supporters that NR had previously done little to improve safety, arguing that

Mexico was legally compliant.

103. Edwards v The National Coal Boerd 1949Y3 was relied upon to show that the

risk should be placed on one scale and the sacrifice, whether in money, time or

trouble, involved in the measures necessary to avert risk placed in the other.

If there is a gross disproportion between them; the risk insignificant in

corrtparison to sacrtfice; thencompltanceIs not reasonably-practicable-.

Bridge or tunnel

104. The most obvious solution in this type of situation is to provide a grade

separated crossing, above or below the line of the railway. It was generally

18

13i

All ER743

..



20/45


accepted that in this particularlocation a tunnel was not possible, due to the

danger of encroachment from the sea.

105. Although there was some discussion around the provision of a footbridge, it

seemed that the only way in which this could occur would be by the purchase

and removal of a residential property at the southern end of Beach Terrace. I

accept that the technical and financial implications of such provision take it

beyond what is reasonably practicable.

Improvements

to

sight ing towards the east for pedestrians

on

the south

side of Mexico

106. NR rejected the recommendation of the RAIB to move the .equlpment cases,

sited east of Mexico, on the basis that the sightline was already compliant, such

that the small benefit would not justify the cost, which they lndicated was

higher than that estimated by the RAIB. I note the comment that a project of

Delivering Rail Improvements in Cornwall, including the upgrading of signalling,

could allow such work to be carried out. However,taking all the matters into'

account, I am, just, satisfied that the overall cost means that it is not

reasonably practicable.

Determine the optimum position

of

the whist le boards

at

Mexico and make

any required adjustments

107. The RAIB report suggests that there may be scope to move both up and down

line whistle boards closer to Mexico, which could increase the probability of a

horn being heard, particularly on the down line. I note that NR were concerned

about the potential impact on residents, however, it seems that the residential

area of Long Rock will be expanding further east, due to new development. '

108. Following a national review of the impact of train horns on residents,' only the

low tone of the two-tone horn has been used since April 2007, with no horns in

the period 23:00 - 07:00. The FOLRMC suggested that local arrangements

could be made to allow the reintroduction of two-tone horns at this location, as

they are arguably more recognisable as being from a train.

109. NR argued that regular users would be used to the current warning time, such

that moving the whistle boards, shortening warning time, could become a risk

in itself. Given that Mexico has been closed for almost two years I consider

that a new pattern would be relatively easy to establish and could be reinforced

with appropriate signage. Nevertheless, I take account of the view of the ORR

that any safety improvement in making the horn easier to hear would be small

and may be off-set by the reduced warning time.

110. I agree with the FOLRMC, and other objectors, that this appears to be

a

low-

cost option, already identified by industry experts. However, I remain

.concerned that, when-it-may be risky to rely on the whistle boards, such as -

when the wind is in a certain direction or train drivers fail to sound the horn,

the sighting to the east provides only a short time frame.

Identify mark and sign the opt imum decision point

111. The FOLRMC believed that quite simple measures could improve safety at

Mexico, and other, crossings. The HOCTC noted that users were generally

unaware that they needed to be at least two metres away from the tracks in

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order to remain safe and at footpath crossings on mainlines the minimum

distance was three metres.

112. T984 notes that SLLsigns are typically the most prominent crossing feature at

passive crossings. However, it was found that they were not commonly viewed

by users, and there was little, if any, evidence that those who did observe the

SLL sign were more likely to look for trains, although there was a weak positive

influence on safe use. It does not appear that the SLL sign is such a safety

factor that changes would significantly improve Mexico. Whilst there was some

criticism of the wording ano design of the SLL sign by the FOLRMC,these

matters are set out by reference to the

Private Crossings (Signs and Barriers)

Regulations

1996; this is a wider issue than can be considered in relation to

this Inquiry.

113. It seems from the RAIB report that the movement of the SLL sign, following

the 2011 fatality, was seen by NRas the marking of the decision point. The

RAIB has also recommended that decision points should be marked on the

ground; Photographs of Mexico, prior to the removal of the crosslnq boards,

show a continuous,yellow board-walk from the gate to the north, to almost the

southern gate. r agree with the FOLRMCthat this is unhelpful and note that

T984 includes the idea of providing clear distinction between the zone in which'

there is risk of being struck by a train from the approach and exit areas, and .

that where there is no such risk, as an option for widespread consideration.

The FOLRMCsuggest marking., whilst T984 suggests yellow colour.

114. Although I agree with the..FOLRMChat such markings would be likely to lead

to improvements at Mexico, I note that T984 sets out that the safety

improvements are likely to be comparatively small.

Crossing deck

115. The FOLRMCalso suggested widening the crossing deck, to assist in busy

periods. However, it seems to me that this might encourage more people onto

the crossing at.one time, potentially leaaing to bottle-necks at the qates. I do

not consider it has been demonstrated that this would improve safety for' users.

116. There has been focus on the crossing from the south, but

I

agree that the slope

in the crossing deck to the north reduces sighting distance and increases

crossing time here. Alterations to the level.of the crossing deck appear to be

practicable, with T984 showing improved crossing surfacing as a low cost,

mandatory improvement. I am satisfied that it would improve safety for

Mexico.

Other signs

117. The LXRMTKsets out that the provision of a sign reminding dog owners to put

doqson a lead whilsttraversinq is a 'suitable mitigation measurer TheORR

= :

. Level crossings: a guide tormeneqers, desiqners and operators indicates that

simple signs giving clear instructions to users on how to cross safely may be

provided. This is low cost and the use is established elsewhere. As pointed out

bythe FOLRMC,in Long Rock there are signs relating to dog use and non-use

of the beaches west and east of LRCrespectively; the instructions on the signs

mayor may not be enforced, however, there is apparently general conformity

to them by users in this area.

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118~The FOLRMCalso.suggested that a sign could be erected stating A safer

crossing is available at the west end of the village. There wauld need to. be

thaught given to. the siting of such signs, althaugh I agree this may improve

user choice and could lead to. a small impravement in safety if mare users

chase

to.

use LRC, rather than Mexico. I am satisfied that these ideas provide

reasonably practicable measures, which could Improve safety here. '

Trainspeed restrictions

119. There was suggestian

from

same objectors that train speeds

could

be reduced.

NR had referred to. this in their applicatian, rejecting it an the basis of a

Gavernment expectatian of reducing passenger times by increasing speeds,

rather than decreasing them. The LXRMTKshows that speed reductian

provides an effective means of reducing the potential

far

and cansequences of

collisions

an

level crassings. However, the

mare

recently published T984

indicates that the occurrence of accidents does natchange with train speed and

sa

this is not, by itself, a risk factor.

120. I give little weight to. the argument that passenger times would be affected by

a speed alteration at a paint

sa

close

to.

the railway terminus at Penzance.

However, given the confllct between the LXRMTKand T984, I do.not consider

that it has been demonstrated that reduction of train speeds is a practicable

safety measure.

Miniature warning Jights14

121. The WCFPSsuggested that it may be passible

to.

install miniature

warnlnq

lights ( MWL )

an ar

at the gates, perhaps run as a spur from LRC. HOCTC

indicates that just aver 100 level crassings have MWL far pedestrians and it is a

legal requirement far pedestrians to. stap when MWLs show red. I heard direct

evidence, and it was also.documented in the HOCTC,'that long delays between

MWLs changing

to

red and a train passing can lead

to

increased risk-taking.

This is similar to the situation where people apparently relied an the LRC

barriers, but did not always wait until they are raised before crassing at Mexico..

122. Taking account of the RAIB report I am not satisfied that MWLs would increase

safety Mexico, in fact the use afMWLs, as assessed in ALCRM, increased the

risk score for Mexico.from C2 to B1. This does not provide a reasanably

practicable means to. make the Mexico.safer.

Manual crossing wi th barriers and closed circui t television

123. LRCis a crossing of this type and it was suggested by WCFPSthat the same

system could be installed at Mexico.,with control of the warnings and barriers

from Penzance signal box, in the same way as LRC. I aqree with WCFPSthat it

appears that there is sufficient

roam to.

install the necessary lighting and CCTV

at-Mexlco. as the line here was formerly- double-track and does not appear to

besignificantly narrower than at LRC.

124. Having visited LRCin the evening of Thursday 23 October, I was surprised at

the extent of the illumination arising. I agree with NR that such light would

impact on residential properties situated just

to

the north of Mexico, even if it

were passible to safely direct lights mare towards the sea, as suggested by the

14 Also referred to as miniature stop lights


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ORDER DECISION FPS/D084Oj3/3

WCFPS. Taking account of all the requirements for such a system at Mexico,

including signaller involvement in the on-going operation of it, I am satisfied

that such a solution would not. meet the test of reasonable practicability.

ESiGate 200

125. The ORR,indicates that it is preferable to generate audible warnings at the

crossing itself and objectors were keen that this could be a solution: I was

greatly assisted by evidence given to the Inquiry from Bombardier, who own

and develop a number of different systems, one 'of which is the EBI Gate 200. I ..

I understand that the EBI Gate was originally developed for use on UWc. Both

UWCand footpath crossings are classed as passive crossings, however, in the

case of UWCsthere are a small number cif identified indivlduals with access, for

example in connection with agriculture or a marina. For footpaths anyone may

use them and there are likely to be a greater number of users.'

126. Bombardier are in the process of further development of the product to meet

the needs of footpath crossings, such as Mexico

1

and it was abundantly clear

that there was a desire to find a solution. Both Bombardier and NRwish to '

solve the issues arising from these types of situation, which would be a win-win

situation. However, Ineed to 'determine the Order as,it is before, me now, with

the current available technology and; having heard the evidence from both

sides, I am not satisfied 'that the solution is available now in relation to the

complex signalling system that exists in and around Mexico/ or that, if it were,

it would meet the test of reasonable practicability.

i7I understand the observations of those of us unfemlliarwith engineering and

signalling solutions that on the face of it the costs seernhiqh for the work that

appears to..be necessary. However, I am satisfied that the.siqnallinq

complexities with the strike in and strike out zones associated with the tracks

on either side of the crossing do introduce additional costs to the works and' it

is not simply the initial cost' of the system that needs to be considered. '

,

..'

Other systems

128. Other possibilities, such as Wavetrain and power operated gate openers, were

also raised by objectors.but, most fairly, accepted as not being suitable for use

in this situation. There was some' concern that, as non-experts in this field,

objectors may have missed options which could assist. In response to a direct

question, NR confirmed that the identified options were the closest to providing

a safe crossing and that there was 'no other option. in development that was '

close to being a solution for Mexico. I understand the frustration of users that,

in.an age of technology, no solution is yet available.

.

,

Other matters regarding reasonable practicability

129.-'lfwauld be fair-la s a y that there was a suspicion that N-R'were

slmplv

seeklriq

to close any level crossings that they could, without taking account of possible

solutions, NR indicated that Mexico was ranked 7 in total fWI score when

compared to all footpath level crossings on the Western route. Of the six,

footpath level crossings with higher FWI, five already had footbridges provided,

or being provided, whilst for the sixth, negotiations had just begun to identify

the appropriate way forward. It does not seem that there is any justification

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for the suspicion in this case, particularly where NR have agreed to pay for

.improvements to the road network, in connection with the alternative routes.

Other matters ...compensation

130. There appeared to be an understanding that anyone affected by the

extinguishment could claim compensation from the OMA, with the suggestion

that this would give rise to such high costs to the public purse that the

.extinguishment could not be justified. It is not my understanding that

compensation under the 1980 Act works in the way envisaged, and so I have

not taken this matter into account.

Conclusions

131. I consider that some matters have been identified by objectors which could

lead to safety improvements at Mexico, further reducing the risk, however, the

reductions in risk are all small, although cumulative. There would still be, in

my view, groups of users who would remain at a high risk,

.due

to being slower

in crossing throuqh age, impairment or encumbrance. The more extensive

works that might lead to NR being satisfied as to the risk profile at Mexico are

either not yet developed to be used in this specific situation, or are beyond

what I would consider to be reasonably practicable. It is to' be hoped that

solutions will be developed for other circumstances, where noalternative

access is available. However, in this case, at this time, as articulated in T984,

there is no 'silver bullet' for mitigating the existing risks.

ArrangelTI~nts

for appropriate barriers and signs to

I).~erected

and

maintained

132. As set out in the Order NR have entered into an agreement with the OMAto

defravanyexpenses in connection with the erection orrnalntenance of barriers

or signs. An agreementwas signed on behalf of NR on 21 June 201:?ahd I

understand that the fence-line alongside the railway will be extended and

maintained across the former gates on either side of Mexico. I note comments

from objectors that teenagers have been seen climbing the temporary fencing

to continue using Mexico. This point will need to be borne in mind when

designing the barriers to prevent a further incident at this point.

133. As this is an unrecorded route, not shown on Ordnance Survey maps and with

no signs to indicate it as a public footpath, there may be less need for signage

to be maintained in the long term.

Whether it is

expedient to

confirm the Order having regard to all the

circumstances the effect of the loss of the crossing on users

Alternative routes

'134~-Whilst a great deal-of the verbal and written evidence referred to the

importance of the beach, a survey by the FOLRMCshowed most use was for

access to the path, which is a multi-use trail, runoing between the beach and

the railway at this point, The route is not simply a leisure route, but also

provides access for work and school. However, unsurprisingly, it was also clear

that residents, and probably a number of visitors, do use it to access the

beach. There are fantastic amenities to the south of the railway,

whether

walking the dog, cycling to work, swimming, surfing or running, or just as a

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place to enjoy for views and fresh air. If there were no other means of access

to the south of the village then I consider that the positive-value of this would

weigh heavily in.the balance against the stopping up 'of Mexico.

135. Two alternative access routes are available to reach the amenities: to the west

over LRGand to the east over SHB. I am aware that a number of objectors are

not satisfied that either of these alternatives provides sufficient convenience to

overcome the loss of Mexico, and I shall consider the matters raised in this

respect below.

Surveys

136. The FOLRMCcarried out a survey to explore the use of Mexico prior to closure

'and of the alternative routes subsequently. The author of the survey fairly

admitted that there were some limitations in methodology, making analysis of

the results more difficult. The questionnaire was distributed to every household

and copies were held in the post office.and the Stores, as well as advertised by

posters in the area. It was fairly agreed that the questionnaire had a level of

bias, being headed

If you want to save the crossing please fill in the

questionnaire'. The results will be used to strengthen our case to Cornwall

Council for having the crossing reopened and kept open. Those who might not

wish to keep the crossing open would be less likely to complete the survey.

, However, I am satisfiedthat, whilst it may not be statistically representative of

the users as a whole, it does provide useful information. '

137. Of the alternative routes, most use was made of LRCwith 203 of the 280

individuals having used it,whilst 155 had used SHB. Only 12% of those using

SHB found it inconvenient,in comparison to31 % of those using LRC. This may ,

be a reflection of the fact that the general residential area is to the north-east

of Mexico and Ludgvan Parish Council indicated that the majority of crossings

are made with Marazion as the ultimate destination. It would feel perverse to

travel to LRCand then back around to the east, rather than simply travelling

east

m.the.ftrst.lnstance.. _

138. As part of the management of LRC, NR carried out a 9 day census in October

2007, which showed 'an average of 90 pedestrians using it per day. A 5 day

census ]une'2014 showed a 284%, increase in use, with 256 people per day.

Despite the difference in the time of year, I agree with NRthat it is likely that

the higher use reflects people now using LRCas an alternative to Mexico.

Despite the concerns raised by objectors,

2014-12-15 (2014-12-12) HeidiCruickshankPlanningInspectorateToENance OrderConfirmation

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