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JOURNAL 194

Rails To The House Of Lords

A study in the disposal and acquisition of railway land

TIM MORIARTY

The chance discovery of a railway case in an old law periodical has prompted a study of reversionary clauses in old railway acts, the disposal of land of abandoned railways, and the acquisition of land for new lines.

Before the Clauses Acts of 1845, railway companies found it expedient to include reverter clauses in their special acts, whereby, if the line was not built, ceased to be used, was given up or abandoned, then, after a specified period, the land taken would revert to the adjoining landowners. Reversionary clauses exist in a few early Irish Railway Acts, e.g. the Dublin and Kingstown and the Dublin and Drogheda Railways. (See Journal No.158, October 2005, p 352).

 

PICKIN v BRITISH RAILWAYS BOARD

In 1971, a British railway enthusiast, disapproving of the Beeching Report, “The Reshaping of British Railways (1963)”, in general and of the subsequent closure of a local branch line in particular, orchestrated this challenge for the courts:-

In anticipation of the extinguishing of the old reversionary rights by the British Railways Act of 1968, George William Leonard Pickin had purchased, for ten shillings, the interest in 22 yards of the 3½ mile branch from Yatton to Clevedon in West Somerset, opened in July 1847 and closed in 1966. The conveyance included the track bed, rails and sleepers. Lifting began in 1969 and Pickin sued BR and the lifting contractor for trespass and compensation of £70, but a restraining injunction was refused.

In the Court of Appeal, Lord Denning MR well summed up Pickin’s predicament: ‘in the 1960s [the line] came under the axe wielded by Lord Beeching … all this was watched with interest - I may say anxiety – by the plaintiff … he is a railway enthusiast. He wanted the line kept open. He had no land of his own adjoining the railway. But he bought a piece … he took a transfer of it. It had only a few feet adjoining the railway line. But it was enough for his purpose. He was now an adjoining owner. He claimed … the land on which the railway was built had reverted to the previous owner and was now vested in him. So, it being his land, he objected to the contractors going onto the track and taking up the railway lines.’

There were two strands to Pickin’s case:

1) that the line had been abandoned before the passing of the act of 1968 and so outside it, or

2) that the act had been obtained by fraud in that Parliament had been misled in the inclusion of s.18 of this act which extinguished reversionary interests in the lands of lines closed but not abandoned.

It is a long held legal principle that the courts cannot impugn an act of parliament, but Pickin argued that this applied only to Public and General Acts and not to Private Acts. The BR Act of 1968 was a private act promoted and obtained by the British Railways Board. The Court of Appeal considered it a case of sufficient public interest and an arguable proposition. Notwithstanding that BR, relying on the Rules of the Superior Courts, had described Pickin’s plea as ‘frivolous, vexatious and an abuse of process’, it refused to strike it out and so it went to the House of Lords.

Cases of great antiquity going back to 1754 were cited, where private acts had allegedly been obtained by fraud and included an Irish case, Waterford, Wexford, Wicklow and Dublin Railway v Logan [1850]. This case involved shares, and it was alleged that the Act of Incorporation had been procured by fraud. Logan pleaded that the calls were fraudulently made but a plea that he was induced to subscribe by fraud of the company or its promoters was rejected.

 

PRIVATE ACTS: ORIGIN AND APPLICATION

Private Acts have now almost disappeared from the statute books. Originally they were of a purely private nature and convenience such as matrimonial matters, bills of attainder, private lotteries etc, and were not required to be printed. Blackstone’s famous law commentaries (1765-9) stated: ‘A law thus made, though it binds all parties … is yet looked upon rather as a private conveyance, than as a solemn act of legislature.’ Private railway acts passed since the c1850s are regarded as public acts and judicially taken as such. Some 70 private acts have been passed by the Oireachtas since 1922, but none since 2003. These included four railway/tramway acts and others, inter alia, promoted for piers, harbours, hospitals, cemeteries, charters and educational establishments.

Pickin further argued that no notice had been given to the holders of reversionary interests in railway land (there existed around 100 such situations in Britain at this time), but the Lords took the view (albeit obiter) that this might be just an oversight, and in any case, notice applied only to compulsory purchase and not to the abolition of reversionary rights. From this, it could be surmised that a situation might arise where land might be confiscated without compensation and without prior notice by a public or private entity promoting a railway or public utility. No plans had been drawn up and deposited with the appropriate authorities as was required when obtaining a Private railway Act.

Although Pickin had complained in the Times of ‘disgraceful indifference’ to his grievances by MPs, an important issue as to whether private acts were now the best means for railway matters in our own times arose. This question was raised, but not answered, in the Lords.

Reversion was not absolute, following the Land Clauses Consolidation Act of 1845 (s.127). Thereafter, the track beds of abandoned railways had first to be sold, and only in default of sale, would they revert to the adjoining landowners. Conditions could be attached prohibiting specific use like a Gas Works or a Public House. It seems also that if the landowner entitled to the reversion refused to accept the land then it could be conveyed to him anyway!

Disposal of land acquired for a railway undertaking which became superfluous admitted of similar treatment. However land which was not superfluous admitted of alienation by adverse possession to a person who had exclusive possession for twelve years. Land would not be superfluous if the company had some plans for it, however vague or indefinite these might be. In Ireland, the Transport Act of 1944 (s.130) restricted the alienation by compulsion of railway land by a Local Authority, if CIÉ might require it for future transport development.

 

DISPOSAL AND ACQUISITION OF RAILWAY LAND IN IRELAND

Section 68 of the Railway Clauses Act 1845[1] required a company to ‘make and at all times thereafter maintain’ accommodation works for the owners and occupiers of lands adjoining the railway. This applied even after the line was closed or abandoned, otherwise compensation was payable in lieu.

In Ireland, the Railways Act of 1924 (s.59) allowed the Amalgamated Company (GSR) to acquire land for ‘alteration, extension or improvement’ of existing lines, but not for new lines, i.e. a matter of ‘such a character or magnitude’ (s.29(4)) that it ought not to be proceeded with without the authority of the Oireachtas obtained by way of Private Bill.

While the Railways Act of 1933 (s.9) allowed services to cease altogether on a particular line, the line could not be abandoned. This was later authorised by s.110(1) of the Transport Act of 1944. The land could then be sold (s.110(8)) by private treaty to adjoining owners, or by public auction to them or any person.

Further provisions for the disposal of the land of abandoned lines appeared in the Transport Acts of 1950 and 1955. Following the latter act, CIÉ, instead of sale, offered to vest the land of abandoned lines in the adjoining owners free, in lieu of the provisions and compensation for damage demanded by the Clauses Act. Existing rights of easement, like wayleaves for telegraph poles and former accommodation crossings, were however continued. Although expedient, no legal obligation apparently existed for this offer, and CIÉ could retain the land, lease it, let it, or use it for its own purposes. The Transport Act of 1958 (s.22) added a new dimension. Land could now be sold to a Local Authority for public utility purposes, notwithstanding the provisions of the Acts of 1950 and 1955. The expression ‘may sell to a local authority or public utility’ implied that the land would first be thus offered, and only on refusal, would the provisions of the previous acts apply.

Although the Lord’s decision was adverse to Pickin, some of the matters raised impacted on future construction of railways in both the UK and Ireland. The law for modern railway construction in the UK was changed by the UK Transport and Works Act of 1992. New lines are now built in both jurisdictions by ministerial order following public inquiry, and the old private act for railway construction is no longer seen as a suitable vehicle.

 

RAILWAY WORKS ORDERS

When it came to the construction of new lines or the alteration of existing lines, Ireland appears to have been ahead of its cross-channel neighbours. The additional powers authorised by s.14 of the Transport Act of 1950 included the construction of new railways. The Castlemungret Branch (1957), for example, was built in 1955 under an order under this act. Land could be compulsorily purchased by order under the act.

Works orders for new railway construction were authorised by the Transport Act of 1963, by which CIÉ was empowered to ‘construct, maintain, operate alter and extend railway works’. A public enquiry was not obligatory, but could be held at the Minister’s discretion. The order then made could incorporate such terms and conditions as the Minister thought proper. Provision for compulsory purchase of any land required for the works was included in the order.

An example of a line built following the 1963 Act was the Silvermines Branch (1966). Orders made under the Act of 1950 were now recognised as if made under this Act.

 

ENVIRONMENTAL ASPECTS AND SAFETY

An important later development and requirement, following the Dublin Light Rail Act of 1996 (s.5) and the Transport (Railway Infrastructure) Act of 2001 (s.39) is the Environmental Impact Statement. This is now a requirement of any order for railway construction, as is the holding of a public inquiry. In the matter of railway safety, land can be compulsorily acquired to alter, stop up, remove or divert a level crossing (Railway Safety Act, 2005, s.127). Reversionary land can of course later be compulsorily re-purchased for a public utility like a railway, tramway or a greenway.

It seems however that the concept of the Private Act for railway construction has not entirely disappeared. Under s.48(3)(a) of the 2001 Act, in order to pay compensation for injury or damage to the owner of land compulsorily acquired, and to secure compliance with the pre-1922 Land Clauses Acts, the railway undertaking is deemed to be the promoter. Accordingly, both this section and the Railway Order are regarded as the “special act”, as defined in the Land Clauses Acts, for the above purposes.

 

BRITISH CONSTITUTIONAL LAW

Pickin’s case failed, but had it succeeded it might well have undermined the foundations of British constitutional law. Lord Wilberforce, admiring Pickin’s ‘courageous assertion of individual right’, said that his claim against the BRB was the very stuff of which constitutional law was made. But he relied on Halsbury who had stated that once a bill had received the royal assent, it could not be impeached by the courts. Lord Simon of Glaisdale added ‘If the respondent thinks that parliament has been misled into an enactment inimical to his interests, his remedy lies with parliament and nowhere else’.

There the matter rested, but the Lords did not decide whether the branch line from Yatton to Clevedon had been abandoned before or after the Act of 1968. It seems to have side-stepped this and other issues discussed, confining itself to upholding parliamentary supremacy over the courts.

 

Sources (additional to those cited in text)

Blackstone’s Guide to the Transport and Works Act, Oxford, Blackstone Press, 1992

British Railways Board v Pickin, in Modern Law Review, vol. 37, No.6, November 1974, 686-691

Browne, JH Balfour, and Allan, Charles F, Law of Compensation relating to compulsory purchase of and interference with land, London, Shaw, 1896, 274-283

Browne, JH Balfour, and Theobald, HS, Law of Railway Companies, 4ed, London, Stevens, 1911, 177-184

CIÉ, Draft Offer of Land in lieu following Transport Act, 1955 (sample document)

Clifford, Frederick, History of Private Bill Legislation, 2 vols, London, Butterworths, 1885

Hodges, William, Law of Railway Companies, London, 7ed., Sweet, 1876, 201-232

Court of Appeal, Pickin v British Railways Board, [1972] 3 All England Reports (AER) 923-930.

Dodd, Stephen, Planning and Development Acts 2000-2007, Dublin, Thompson Reuters, 2008.

Galligan, Eamon, and McGrath Michael, Compulsory Purchase and Compensation in Ireland, 2ed, Sussex, Bloomsbury Professional, 2013, 419-438.

Godefroi, Henry, and Shortt, John, Law of Railway Companies, London, Stevens, 1869, 292-296.

Halsbury, Laws of England, 3ed. vol. 36, 1954, 378

House of Lords, British Railways Board v Pickin, [1974] 1 AER 609-631.


[1] This Act and the Land Clauses Consolidation Act 1845 form part of the legislation of the Republic of Ireland as “pre-1992 Acts”.

 

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Revised: May 17, 2018 .

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