By not seeking legal advice, many landowners could be missing out on financial and other incentives, explains Thorntons land and rural business specialist Robin Dunlop.
Network Rail in Scotland has a target to be Net Zero by 2035 and, as such, is currently implementing the Scottish Government’s Rail Services Decarbonisation Action Plan to electrify the rail network across Scotland from Carlise and Newcastle, all the way to Thurso and Wick.
To accommodate electrification and implement safety improvements, the old rail infrastructure requires significant modernisation, resulting in multimillion pound projects across the country. What many people don’t realise is the impact this has beyond the railway boundaries for private landowners – specifically bridges and level crossings which are at risk of closure or removal. This has the potential to sever or restrict movement between private land on each side of the line.
In excess of 200 miles of the rail network will require to be electrified and therefore many current crossings, private land including farms and estates, may be affected. Under the Railway Clauses Consolidation (Scotland) Act 1845, all railway companies are required by law to provide access across the railways to private land intersected.
Building a new higher bridge over the electrified railway is more expensive than demolishing an existing bridge and providing no replacement – so naturally this tends to be Network Rail's preferred course of action. In some cases, however, the railway provider has no option but to provide a replacement, for example in a built-up area where the public rely on the bridge. This was the case for the railway footbridge at Strathbungo in Glasgow’s southside, with the original constructed by the Caledonian Railway and a new modern bridge redesigned and build with involvement of public consultation.
However, in rural areas it is also entirely possible that landowners no longer have a need for the existing overpass, underpass or level crossing connecting their land. Perhaps they have alternative routes to access their land or their land use and farm practices have changed over time and the current crossing is no longer needed. In these cases, Network Rail could remove an unused bridge or crossing. Arguably they should pay for this – since the landowner is being asked to give up their statutory right of access, something which they do not have to.
For rural and private land, it is important landowners seek professional advice if approached by Network Rail in order to secure the best possible package for them before any work starts on the ground. While compensation is a requirement as part of the works, where private land is disrupted, the amount will be significantly lower without the support of professional advice and support. Financial incentives are often based on the build costs required to re-instate a bridge, but timings can be critical due to public impact of rail closures, and legal agreement must be reached before works commence.
We have acted on behalf of landowners in a number of similar cases and found it is best to collaborate early with Network Rail and consider the wider deals that can be struck. For example, offering temporary occupation for Network Rail on the adjacent land whilst they are working on the section of track, negotiating on new fencing being erected, being given the dressed stone or backfill from old bridges and installation of hardcore gravel tracks in areas of the landowner's choice are examples of the elements which can make up an overall deal.
Scottish Government’s Rail Services Decarbonisation Action Plan is well underway but work on several lines is yet to commence as the 2035 target deadline looms. I’d urge any landowners on the affected routes to seek professional advice in their negotiations with Network Rail in order to reach a mutually beneficial outcome.
Robin Dunlop is an Associate in Thorntons’ specialist Land and Rural Business team.
