Context: NVAG Posted an Article on Railways’s 3Rs, Roles, Regulations an Responsibilities an article that concluded with an open letter to Richard Price, CEO of the Office of Rail Regulation.
Richard Price, CEO of ORR, Responded as Follows (also available as a PDF file from ORR’s website):
Dear Mr McIver,
6 February 2015
SUSTAINABILITY, NOISE AND VIBRATION
Thank you for your open letter of 21 January regarding noise and vibration
from railway operations.
As well as having led work on the economics of sustainable development, I
live next to the railway myself, so I fully understand your concerns and the
importance of this issue. It really matters, and affects the quality of people’s
lives. I also recognise that the legal framework for the oversight and
enforcement of noise and vibration levels on the railways is not
straightforward – so let me try to set out the different responsibilities clearly.
In general, obligations and rights in relation to environmental pollution and
nuisance are determined by specific acts of Parliament, notably the
Environmental Protection Act 1990. The Act also places responsibility for
investigation and enforcement with local authorities. It is for these
enforcement bodies under environmental law to establish whether or not a
particular business is compliant or not, and to determine the appropriate
Our role at ORR in regulating infrastructure companies such as Network Rail
is to hold them to account through their licences for delivering high levels of
performance, safety and service as well as good value for money. In relation
to railway companies, our regulatory remit includes making punctuality and
providing reliable passenger information conditions of their licences.
You will understand that in general, it makes sense to avoid ‘double
regulation’ – that is, different bodies setting different standards or imposing
different sanctions for the same legal obligations. In relation to Network Rail
and other rail businesses, we expect them to comply with their obligations
under environmental and other law, in the same way as any other business.
There are however some specific environmental and sustainable development
requirements on railway businesses, and on us as the regulator for the
industry, which I will describe.
As you know, one of our primary legal responsibilities is ensuring that health
and safety risks posed by the railways are properly controlled. Our role in
dealing with environmental pollution or nuisance noise caused by railway
services, is limited to ensuring that operators, under their licences, have both
an environmental policy statement on which we can comment and
management arrangements to give effect to the policy.
The Railways Act 1993 also places two statutory duties upon the ORR which
relate specifically to sustainable development and the environment. These
to contribute to the achievement of sustainable development; and
to have regard to the effect on the environment of activities connected
with the provision of railway services
We regulate Network Rail under a licence which contains a number of
conditions they must follow. Condition 23 requires Network Rail to have an up
to date written policy to protect the environment from the effect of its licenced
activities taking into account any guidance by ORR. Further details of
Network Rail’s sustainability development plans and strategy can be found on
their website (I’m including links to the documents at the end of this letter).
In the first instance, the issue of train noise or vibration is an operational
matter for the train operating company concerned and/or Network Rail, as the
infrastructure controller, to deal with, and in legal terms, noise and vibration
are regarded as a statutory nuisance rather than a specific threat to health or
safety. The Environmental Protection Act 1990, which is enforced by the local
authorities, is the appropriate legislation for dealing with nuisance noise and
environmental pollution. If a member of the public is concerned about noise
and vibration disturbance from the railway, they should therefore to raise it
with their local authority environmental health officer, who is responsible for
enforcement of such an issue under section 79 of that Act.
Even this enforcement route may not be open to the complainant, however,
since in relation to the railways, section 122 of the Railways Act 1993 provides
Network Rail and train operators with a statutory defence against a nuisance
claim brought by the local authority. If the local authority is able to
demonstrate that the noise or vibration is being caused by a party acting
negligently or without reasonable diligence, then it is my understanding that
the statutory defence might be beaten.
Another approach may be for the complainant to seek civil remedies and
compensation against the party causing vibration (perhaps under Part 1 of the
Land Compensation Act 1973, if there is a depreciation in the value of the
complainant’s land caused by new, additional or altered works to the relevant
part of the railway). However, the complainant would need to seek their own
legal advice on this point. Network Rail’s website provides guidance on how it
will investigate a claim that vibration is causing damage, but it stipulates that
the complainant needs to provide a surveyor’s report as to the damage before
it will investigate.
Finally, we are involved with the industry’s Noise Policy Working Group
(NPWG) which is currently reviewing research in relation to acoustic track
quality, to supplement mapping work and recorded data on areas affected by
railway noise developed by the Department for Environment, Food, and Rural
Affairs (DEFRA). Network Rail has planned activities between 2014-19,
including rail profile grinding and electrification projects, which will support
mitigation of the noise impacts identified in DEFRA’s latest noise mapping
round. We will continue to monitor Network Rail’s work and engage with the
NPWG on these important issues. We will seek assurance that Network Rail
has reflected this new evidence in its environmental policy statement and
supporting management documents.
I hope this helps to answer your questions, and to explain the roles of ORR
and other regulatory bodies in relation to environmental law and sustainable
development. Please feel free to put this letter on your website, and I will
place it on ours.
Link to Network Rail’s sustainability development plan and strategy: