UK Rail Reaches the End of the Regulatory Line
An Important Day in Railway Legal History
On the 15th of March 2016, in Stirling Sheriff Court, two rail haulage companies, DB Shenker and Freightliner, will be appealing against an abatement order served by Stirling Council.
Whilst Stirling Council are attempting to protect the health of the general public by stopping noise and vibration at high levels during the night, the freight haulage companies, are expected to argue that UK law and ‘statutory authority’ gives them the right to run their operations (and thus pollute UK residents regardless of impact) without regulation or restriction.
The Lack of Responsibility Within UK Rail.
So far, with the exception of Stirling Council, every ‘responsible’ body has washed their hands of the murky issue of harmful noise and vibration from trains. According to most of them- DEFRA, the Office of Rail Regulation, Network Rail and National Government (Scotland)- the Council is the body, empowered and obliged under the Environmental Protection Act, EPA-1990, to deal with such issues.
Noise and Vibration Polluters Seeking Legal Immunity
The hearing on the 15th of March will not go into the details of noise or vibration exposure levels or other such evidence; this hearing is procedural and is to determine whether or not the train operators can rely upon an absolute statutory defence.
If the hearing decides ‘yes’, then it is expected that the operators will simply ignore the abatement order served by the Council in December 2015 and have a green light to go on polluting. If the court decides ‘no’ then, at a later hearing, the evidence and arguments specific to this case will be presented and the court will decide if the specific circumstances of this case constitute a statutory nuisance.
Bodies Who Have Failed to Address the Issue:
AECOM, advised the Scottish Government that night noise mitigation wasn’t actually needed despite 80-90dB LAmax levels at bedroom windows. Apparently, no matter how loud the night noise, as long the noise events are limited to two per hour between 23.00 and 07.00, this is still conducive to undisturbed sleep (see earlier AECOM post on ethics etc). That would mean that alarm clocks and other noise-emitting wake-up devices, won’t wake a person up unless they go off on three separate occasions in a one hour period. AECOM are currently stonewalling on questions about this absurd criteria, as well as ethics, human rights, misrepresenting the World Health Organization night noise guidelines in reports etc. AECOM are currently engaged in the UK’s biggest ever rail project -HS2.
The Scottish Government closed down a parliamentary public petition committee set up to address the issue when questions about the AECOM criteria were raised.
DEFRA, in 2010, published an article saying that the Office of Rail Regulation, ORR, were responsible for UK rail noise and vibration regulation.
ORR disagreed with DEFRA, and, following discussions with the Department of Transport, said that Network Rail (at that time a private company) were responsible for their own noise and vibration regulation. NR did have to provide the ORR with an environmental statement, but this was a paper exercise-(apparently, no one challenged their proposals or saw that the its contents were upheld). The ORR also said that the Council has legal powers, under EPA-1990, to serve abatement orders and referenced other railway laws and regulations that would also apply (see earlier post).
Network Rail have advised that they do not normally monitor noise and vibration exposure for residents and that they have no standards or maximum limits for residential exposure (this was provided in a FOI request). NR appear to be very reluctant to publicly acknowledge this unlimited noise or vibration level stance. It certainly conflicts with their aim to ‘exceed expectations’, be ‘good neighbours’ PR statements. Like the ORR, NR say that it is up to the Council, who have legal powers under EPA1990, to serve abatement orders. NR also lists other railway laws, defences and regulations.
Is UK Rail Sustainable?
One has to ask if AECOM, DB Shenker, Freightliner or Network Rail actually understand the meaning of corporate social responsibility, CSR, and if they believe that it is ethical or moral to ignore the impact of their actions on the health of five million lineside residents. The current business model allows pollution generated by the railways to escape with little or no restriction, at levels far in excess of World Health Organisation guidelines, into people’s lives and into their homes. Any organisation that applies ‘environmental’ criteria that ignore public health, or that fight in the courts to emit unrestricted levels of pollution, rather than face up to and deal with the emissions they create, can hardly be considered sustainable. These same companies benefit from the massive public funding that provides and maintains rail infrastructure in the UK.
Noise Vibration Action Group 
Interestingly, the freight trains have this week (15th March at 2am) just passed through Causewayhead, after a few months of no or very little activity. Seems like the battle is very much still on.
Yes, woken here by the same train. Unless the abatement order holds the freight companies will do as they like regardless of impact on health or sleep.
Do you know the outcome of yesterdays hearing yet?
Sorry, I meant today’s hearing…
I’ve been advised that it’s been moved to the 26th of April. The freight can continue to run (abatement order suspended till court makes decision).
Thank you!
The criteria and assessment methofology for hs2 in relation to the Lamax noise levels during the night time are more onerous due to the the NPPF (paragraph 123) which doesn’t apply in Scotland.
Good that HS2 criteria are more onerous but . . . do not assume the promoters will follow through with these.
In the case of the Stirling-Alloa line, AECOM, the consultants currently working on the environmental side of HS2, advised that the pre-construction standards (BS8233, sleep disturbance level set at 60dBLamax), were unnecessary and advised much less onerous standards. AECOM’s alternative standards were not approved by parliament, but were ‘adopted’ after the line was running by the promoters. Having followed AECOM’s advice, the promoters then refused to provide noise mitigation. Hence the Council are serving abatement orders on noise levels.