The Network Rail (Closure of Abbots Ripton Level Crossing) Order 2017

Creation and maintenance of new public rights of way

6.—(1) The new public right of way is to be completed to the reasonable satisfaction of the highway authority and is to be maintained by and at the expense of Network Rail for a period of 12 months from its completion and after the expiry of that period by and at the expense of the highway authority.

(2) Section 28 (compensation for loss caused by public path creation order) of the 1980 Act is to apply to the new public right of way as if the right of way had been created by a public path creation order.

(3) In its application by virtue of paragraph (2), section 28 of the 1980 Act is to have effect with the following modifications:—

(a) In sub-section (1), substitute the words “Network Rail” for the words “the authority by whom the Order was made”;

(b) For sub-section (2), substitute—

“(2) A claim for compensation under this section is to be made to Network Rail in writing within 6 months from the coming into force of the Network Rail (Closure of Abbots Ripton Level Crossing) Order 2017(1) and is to be served on Network Rail by delivering it at, or by sending it by pre-paid post to the registered office of Network Rail Infrastructure Limited”; and

(c) Sub-section (3) is omitted.

(4) Sub-section (3) of section 307 (disputes as to compensation which are to be determined by Lands Tribunal and related provisions) of the 1980 Act, in its application to section 28 by virtue of sub-section (1), is to have effect as if in sub-section (2) for the words “the authority from whom the compensation in question is claimed”, the words “Network Rail” are substituted.

(5) In any action against Network Rail in respect of loss or damage resulting from any failure by it to maintain the new public right of way, it is a defence (without affecting any other defence or the application of the law relating to contributory negligence) to prove that Network Rail had taken such care as in all the circumstances was reasonably required to secure that the part of the new public right of way to which the action relates was not dangerous to traffic.

(6) For the purposes of a defence under paragraph (5), the court must in particular have regard to the following matters—

(a) the character of the new public right of way and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a public right of way of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the new public right of way;

(d) whether Network Rail knew, or could reasonably have been expected to know, that the condition of the part of the new public right of way to which the action relates was likely to cause danger to users of the new public right of way;

(e) where Network Rail could not reasonably have been expected to repair that part of the new public right of way before the cause of action arose, what warning notices of its condition had been displayed;

but for the purposes of such a defence it is not relevant to prove that Network Rail had arranged for a competent person to carry out or supervise the maintenance of the part of the new public right of way to which the action relates unless it is also proved that Network Rail had given the competent person proper instructions with regard to the maintenance of the new public right of way and that the competent person had carried out those instructions.

(7) The new public right of way is to be treated as completed to the satisfaction of the highway authority for the purpose of paragraph (1) if it fails to reply to a request for certification that it is satisfied with the work within 28 days of receiving the request.

(1)

S.I. 2017/1074.