Rother Valley Railway Company Ltd v Ministry of Transport
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE PHILLIMORE,LORD JUSTICE BUCKLEY |
| Judgment Date | 16 July 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0716-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1967 R. No. 4585 |
| Date | 16 July 1970 |
[1970] EWCA Civ J0716-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Salmon,
Lord Justice Phillimore and
Lord Justice Buckley.
MR. I. PERCIVAL, Q.C.and MR. E.A. SEELEY (instructed by Messrs. Sharpe, Pritchard & Co.) appeared on behalf of the Respondents.
MR. S.W. TEMPLEMAN, Q.C. and MR. J.P.F. WARNER (instructed by the Treasury Solicitor) appeared on behalf of the Appellants.
(as revised)
Between Robertsbridge in Sussex and Tenterden in Kent there is a single line railway track which is 131/2 miles in length and crosses seven public roads including three main roads. It crosses one of these main roads twice. The construction of this railway was started towards the end of the last century; the railway was extended and altered during the first few years of the present century, and probably from about 1906 until today it has remained unchanged.
In 1954 it was closed to passenger traffic, and in 1961 it was for all practical purposes closed to freight. The only passage of freight over the railway after 1954 was over half a mile of the railway when materials were conveyed in carriages to a corn mill which was on a spur of the railway in the vicinity of the half-a-mile to which I have referred. This traffic was intermittent and infrequent.
It is necessary that I should make a brief excursion into the legislative history of this railway. Prior to the Light Railways Act, 1896, anyone who wanted to construct and operate a light railway had to promote a private bill. The procedure was ponderous and expensive, and it took a good many years and the expenditure of a great deal of money before the bill finally blossomed into an Act of Parliament. The railway line to which I have referred was known as the Rother Valley Light Railway, and it was originally authorised by the Rother Valley (Light) Railway Act, 1896, which was, of course, a private Act of Parliament. The Light Railways Act, 1896, however, was passed for the purposes of facilitating the construction of such railways. I shall have to consider certain sections of it in more detail later. Broadly it provided for the appointment of three Light Railway Commissioners and for applications being made to them for power to construct and operate light railways together with all the ancillary powers which that would entail; and it gave them power to make orders granting such applications. These orders were subject to approval by the Board of Trade.
The Cranbrook and Teaterden Light Railway Order, 18991 was an order made under the powers conferred by the public Act of 1896 and which brought this railway line under the ambit of that Act. Then other orders were made varying or extending the original order. There was the Rother Valley Light Railway (Extensions) Order, 1902, and the Kent and East Sussex Light Railway (General Powers) Order, 1904. Under the latter order the name of the railway was changed to the Sent and East Sussex Light Railway.
The Ministry of Transport Act, 1919, created the Ministry of Transport and transferred to the Minister of Transport the powers which formerly had been exercised by the President of the Board of Trade under the Light Railways Act, 1896. The Railways Act, 1921, transferred the powers which had been exercised by the Light Railway Commissioners under the Act of 1896 to the Minister of Transport, The Transport Act, 1947, transferred the whole of the undertaking of the company which owned the railway to the Transport Commission. This was a part of the general nationalisation of all public transport in this country. Then, finally, by the Transport Act, 1962, the railway system was hived off the Commission and transferred to the British Railways Board. Part of the system transferred was this railway running from Robertsbridge to Tenterden.
So today in place of the company that formerly owned this light railway, we have the British Railways Board, and as far as the Act of 1896 is concerned the Minister of Transport stands in the shoes of what were formerly the Light Railway Commissioners and the President of the Board of Trade. The powers which they formerly exercised, or such of them as are still relevant, have been transferred to the Minister of Transport.
It is apparent from what I have already said that when this railway passed to the British Railways Board in 1962 it was then moribund. Eight years before it had ceased to carry passengers, and in the previous year had ceased for all practicalpurposes to carry freight. It was quite obvious by 1966 that the Railways Board had no intention of ever using this line again. There were, however, a number of people living in the vicinity of this railway who were extremely enthusiastic about reviving it, and undoubtedly sincerely held the view that it was in the public interest that its activities should be revived. They did a great deal of work voluntarily and, indeed, expended a great deal of money with a view to reviving this railway.
They were instrumental in forming the Rother Valley Railway Company Limited which is the Plaintiff Company in this action. On the 6th April, 1966, the Plaintiff Company entered into an agreement with the British Railways Board under which the British Railways Board sold the whole of this railway line and everything appertaining thereto to the Plaintiff Company. The idea was that the Plaintiff Company was going to take over the line and such of the railway stock as was left and operate a passenger service and also a service for the carriage of freight. Under the agreement the purchase price to be paid to the Railways Board was £36,000.
The agreement, however, we subject to the Plaintiff Company making an application to the Minister of Transport and obtaining an order which would in effect sanction the transfer to the Plaintiff Company (to the exclusion of the Board) of all rights, powers, privileges and obligations of the Board (whether statutory or otherwise) in relation to this railway. The agreement provided that in the event of the Minister refusing to make the order or if she would only make the order on conditions which the parties or either of them could not agree, the agreement should be void. There was a further provision, that in the event of the Minister not making the order within nine months of the date of the agreement or within any extended time to which the parties might agree, the Board should be at liberty to serve the purchasers with a writtennotice fixing a date for complation, and if within the time stipulated the order had not further made and the sale completed no further obligation should rest upon the Board to convey the railway.
In one of the schedules to the agreement there was a draft of the order for which the Plaintiff Company under the terms of the agreement was obliged to apply. The Plaintiff Company did apply to the Minister for such an order. The only part of it which I need read is clause 3:
"3.(1) The Board and the Company may enter into and carry into effect agreements providing for the transfer to and vesting in the Company of the railway on such terms and conditions as may be agreed between the Board and the Company.
"(2) As from the date upon which the railway shall become vested in the Company the Company shall to the exclusion of the Board be entitled to the benefit of and to exercise all the rights, powers and privileges and be subject to all the obligations of the Board whether statutory or otherwise for the time being in force in respect of the railway."
Then clause 4 provided that the motive power should be steam, diesel, diesel electric, and other forms of power which I need not recite.
The Minister caused an inquiry to be held by an Inspector who duly reported to the Minister. There were a number of opponents to the proposed Order who were heard at the inquiry, and the Minister finally gave her decision on the 4th September, 1967. There are certain parts of her decision letter which I should read:
"The Minister has also considered the 'other factors involving the public interest' referred to in the Inspector recommendation. The most serious disadvantage of reopening this line lies in the fact that it crosses seven roads on the level. These level crossings include one on the A.21, one on the A.229, and two on the A.28, all principal roads with large and growing flows of road traffic, particularly in summer. On the A.21 alone the summer peak flow is over 13,000 vehicles a day, with anannual growth rate of 7 or 8 per cent.
"The Minister cannot lightly contemplate imposing further delays on road traffic flows of this order of magnitude. She is advised that queues of up to 30 cars would result from the operation of manned barriers of the type suggested by the Railway Inspectorate as suitable for this line. She is further advised that in this situation, having regard to the expected growth of traffic, it might well be necessary ultimately to provide dual carriageway bridges to carry at least three of the roads over the line; this could involve a burden to public funds of several hundred thousand pounds."
The Minister then refers to the fact that she noted that two of the County Councils did not formally object to the granting of the Order but that the spokesman for one of then made it clear that the interruption to road traffic was in his view undesirable and that the Minister should be thoroughly satisfied about the public need for the railway.
The letter goes on:
"Similarly, the Inspector in his conclusion, felt that 'there is a public demand, slenderly amounting to evidence of a public need, but of a strength which could not prevail against serious objections on wider public grounds to the railway being re-opened'.
"The...
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