Sarah Athersmith

Mr Zafar Siddique
HM Senior Coroner
Black Country Coroner’s Court
Jack Judge House
Halesowen Street
Oldbury

West Midlands

B69 2AJ

Dear Sir

NetworkRail

Martin Frobisher
Route Managing Director
Network Rail
Square One
4 Travis Street
Manchester, Ml 2NY

Email

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25th January 2018

Regulation 28: Report to Prevent Future Deaths Sarah Athersmith (Deceased)

I refer to your report dated 30 November 2017 made under paragraph 7, Schedule 5 of the Coroners
and Justice Act 2009 and regulations 28 and 29 of the Coroners (Investigations) Regulations 2013 in
relation to the inquest into the very sad death of Sarah Athersmith,

As noted in your report, Sarah Athersmith died on 26 September 2017 as a result of fatal injuries
sustained when she was struck by a train at Wallows Lane footpath level crossing. The conclusion of
the inquest held on 28 November 2017 was accidental death.

Application to close Wallows Lane level crossing

Your report identifies at Section 6 the following action that you consider should be taken to prevent
future deaths

“Walsall Local Authority may wish to consider urgently reviewing any application to close the
crossing made by Network Rail or converting it into a controlled crossing using suitable
methods,”

We confirm that Network Rail’s preferred option is permanent closure of Wallows Lane level
crossing. The crossing was closed to members of the public on 26 September 2017 via temporary
order granted by Walsall Local Authority and remains closed today.

Network Rail has not received nor been made aware of any complaints relating to the temporary
closure of the level crossing

It should be noted that, regrettably,
is not within Network Rail’s power to simply close a level
crossing that carries a public right of way. Even when a clear safety case exists for closure of a
crossing, Network Rail requires the relevant local authority to first support and then to progress the
necessary statutory process.

 Matters of concern identified in your report

Your report also identifies a number of matters of concern.
considered responses to the matters raised in your report.

I have detailed below Network Rails

Method of protection at Wallows lane level crossing

level crossings on Network Rail’s infrastructure are risk assessed to determine the level of
All
protection that is required to reduce the risk associated with that crossing so far as is reasonably
practicable.

Wallows Lane level crossing is an unprotected or “passive” crossing. There are approximately 2,200
such passive footpath and bridleway crossings on Network Rail’s infrastructure, including 200 on the
London North Western Route. To place this into context, Network Rail’s national level crossing

estate extends to approximately 6,000 level crossings in total.

In accordance with the risk assessment of the crossing, the protection measures at Wallows Lane
level crossing rely on users actively stopping, looking and listening for approaching trains before
deciding if it is safe to cross. These instructions are provided to crossing users via signs installed at

the crossing.

Further protection has been installed at Wallows Lane level crossing in the form of whistle boards.
Train drivers are required to sound their horn at the whistle boards to warn users of an approaching
train. The sound of the horn is intended to be a further warning to any user who is actively assessing
whether it is safe to cross.

To supplement these measures, Network Rail’s Level Crossing Managers undertake safety awareness
events in the local community and regularly stop crossing users to promote and encourage safe
behaviours.

Ways to mitigate the risk of trains passing at crossings

Trains (passenger and freight> pass frequently at Wallows Lane, as they do at many level crossings.
There is currently no known product that may be installed at passive level crossings to show users
which line an approaching train is travelling on.

Freight trains on the network are limited to one container in height and are a similar maximum
height to passenger vehicles. The height of any proximate passing train does not impact on the way
in which a train driver will proceed across a crossing.

The risk assessment for Wallows Lane level crossing has considered if any existing technology may
be used to warn of approaching trains at this location. Due to the close proximity of signals and
junctions in both upside and downside directions, options to use technology are very limited and the
evaluation concluded that risk at the crossing is reduced so far as is reasonably practicable.

 To eliminate the risk entirely, Network Rail agrees that the best solution is closure of the level
crossing. Formal avenues to pursue closure are considered wherever possible and are discussed with
relevant local authorities — as has been the case for Wallows Lane. Whilst a crossing remains open
Network Rail periodically reviews its risk assessments; we consider whether further mitigation is
appropriate and/or if alternative technical solutions have become available.

Near miss at Wallows Lane level crossing in 2011

We have record of a near miss reported by a Driver in 2011 involving a young girl in school uniform
who was at Wallows Lane level crossing with three other school children. The young girl was stood in
the space between the rails and jumped clear of an approaching train at the last moment. A Network
Rail Mobile Operations Manager attended the level crossing immediately after this report to confirm
that the crossing remained safe.

in 2016 a number of
As part of Network Rail’s continuous improvement to level crossing safety,
enhancements were made at Wallow Lane level crossing to encourage safer user behaviours. These
included:

•

•

Extending the crossing deck and painting with a “stop” marking to create a defined decision
point;

Installing low level solar lighting studs along the edges of the crossing deck;

• Undertaking extensive de-vegetation works;
•

Painting pedestrian gates yellow to warn a user that
environment; and

they are entering a different

•

Painting signage posts white and highlighting with yellow tape to draw a user’s attention to
safety signage.

Census cameras have also been installed to gather further information about the usage of the
crossing. There was no reported misuse at this location between November 2015 and September

2017.

I hope this response answers your concerns but if I can be of further assistance, or if you would like
further clarification, please do not hesitate to contact me.

Finally, on behalf of all at Network Rail,
condolences to the family of Miss Athersmith.

I would like to take this opportunity to express my sincere

Yours faithfully

Martin Frobisher
Route Managing Director
London North Western

REGULATION 28 REPORT TO PREVENT FUTURE DEATHS FOLLOWING THE

INQUEST INTO THE DEATH OF SARAH MARIE ATHERSMITH

WALSALL MBC RESPONSE

1

This is a response to the Senior Coroner Zafar Siddique’s opinion on the
actions that should be taken to prevent future deaths as detailed is his
Regulation 28 Report to Prevent Future Deaths dated 30.11.17 ("Regulation
28 Report’) which followed the Inquest Hearing on 28.11.17 into the tragic
death of Sarah Athersmith at the Wallows Lane Railway Crossing on 26.09.17.

The Regulation 28 Report's opinion on the actions required are as follows:

Walsall Local Authority may wish to consider urgently reviewing any
application to close the crossing made by Network Rail or converting it

into a controlled crossing using suitable methods.

A. Walsall MBC’s (“WMBC”) urgent review of any application to close the
crossing made by Network Rail

3.

As explained at the Inquest, the most appropriate procedure for the permanent
closure of a level crossing is under the Stopping Up of Rights of Way across a
railway is a Rail Crossing Extinguishment Order Regulations under Section
118A of The Highways Act 1980.

. This prescribes a set application form in Schedule 1 of the Regulations and as

part of an application for extinguishment of a footpath under $118 HA1980, the

reasons to be considered and included are set out within the Application.

5.

The closure application needs to be made by Network Rail (“NR”) and will
then be advised upon and considered WMBC as the Highway Authority.

. As was heard at the Inquest Hearing of 28.11.17, discussions had taken place

between WMBC and NR and although WMBC had provided appropriate
guidance on the closure application process, no application had been
submitted by Network Rail for the permanent closure of the Wallows Lane

Railway Crossing at that time.

. On 14.12.17, NR telephoned WMBC to inform that they had posted the closure

application and wanted to discuss the same. WMBC had not received any
such application and NR then emailed the same on 14.12.17.

Following NR’s submission of the closure application on 14.12.17, WMBC
urgently arranged a meeting with NR for 19.12.17 to discuss the application

and to provide guidance and advice on any deficiencies in the same.

On 19.12.17, WMBC held a meeting with NR to discuss the closure
application. WMBC advised NR that at that stage the application is considered
to be incomplete, and would require updating and resubmission to ensure it
can be considered in context of the legal criteria and procedures, thereby
allowing the council to validate the application and demonstrating sufficient
evidence has been submitted to proceed with an order. NR were advised that
whilst WMBC will provide support on the application, NR needed to
appropriately complete the application in accordance with the legal
requirements and WMBC recommended that NR’s legal team approve the

application prior to submission.

10.At the meeting, WMBC reiterated to NR that The Rail Crossings

Extinguishment and Diversion Orders Regulations 1993, under Highways Act
1980, Section 118A Public Path Extinguishment Order in accordance with
Schedule 1 of the Order, sets out the following criteria for extinguishment:

(a) Give reasons for the proposed extinguishment of the rail crossing. Include
information about:

i. The use currently made of the existing path, including numbers and types of
users and whether there are significant seasonal variations, giving the source
for this information (any circumstances preventing or inhibiting such use must
also be mentioned);

ji. The risk to the public of continuing to use the present crossing and the
circumstances that have given rise to the proposed order.

iii. The effect of the loss of the crossing to users, in particular whether there are
alternative rights of way , the safety of these relative to the level crossing, and
the effect on any connecting public rights of way and on the network as a
whole.

iv. The opportunity for taking alternative action to remedy the problem such as a
diversion, bridge or tunnel, or the carrying out of safety improvements to the
existing crossing.

v. | The estimated cost of any practicable measures identified under iv. Above;

and
vi. The barriers and or signs that would need to be erected at the crossing or the
point from which any path or way is to be extinguished, assuming the order is

confirmed.

11. WMBC also explained at the meeting that although the footpath is currently
closed temporarily, it should be considered in context of the level of use that
would be expected (9 or 10 trips per day as indicated by the Network Rail Census

figures) if it was open.

12. Furthermore, WMBC explained that it appeared that there were incidents of
concern in the NR’s Risk Assessment of 2015 which resulted in some safety
improvements being carried out at the level crossing and as such it would be
beneficial for NR to provide an evidence statement to set out a chain of events
and explanation of the risk assessment criteria and how the priority has been
affected following the fatality. This may give reference to the Coroners’
recommendations at the Inquest of Closure or technological safety improvements

as well as an updated risk assessment post the date of the fatality.

13. At the meeting of 19.12.17, it was also discussed that the likely alternative route
that Network Rail would be recommending as part of their application submission
will be the route shown in the Temporary Traffic Regulation Order Map. As this is

a restricted byway there will be a requirement to consider the impact of the

closure on cycling as well as walking and it would be useful to check whether

there are any known Road Safety concerns at the location.

14. After the meeting, WMBC’s Road Safety Team were contacted for their view on
the suitability of the alternative route. This has been provided by the Road Safety
Team who have advised that the alternative route is not a dedicated cycle route

and would require further investigation. This advice has been forwarded to NR

on 5 February 2018.

17.On 20.12.17, NR emailed WMBC a draft letter that it proposed to send to potential
interested parties such as local residents and commercial premises regarding

their closure application.

18.On 21.12.17, WMBC emailed NR providing advice and suggestions on NR’s draft

letter to the interested parties.

19.On 09.01.18, NR emailed WMBC informing that it had now received some
responses to its letters to the interested parties and wanted to know if WMBC had

the chance to consider the statutory consultees.

20.On 15.01.18, WMBC responded to NR with the following email advice:

Thank you for your email dated 9" January.

In order to assist further, the requirements are set out in the prescribed
application form Schedule 1 of the Rail Crossing and Diversion Orders
Regulations 1991. We attach a copy of the form for your ease of reference.

Section 1.e) refers to the requirement for names and addresses of owners and
occupiers of land on either side of the path to be extinguished to be listed, and
section 1.f) requires details of any consents of persons with an interest in the
land to be provided. Section 2 further sets out that details of public utility
undertakers who may have apparatus that is likely to be affected are provided.

As you will recall in our meeting of 19" December, we discussed in detail that
Network Rail consultations would need to be completed with land owners and
with public utility undertakers to check for any interest in the land and for any
requirements which may need to be taken into consideration or dealt with prior
4

to making an order. Any details of this and responses to the consultations
should be included with the application for the Extinguishment Order under the
relevant sections.

There is no specific reference within the prescribed application form for wider
consultations to be undertaken, although during statutory consultation on a
Rail Crossing Extinguishment Order under S118A of the Highways Act, the
Council has a duty to serve notice on a list of additional prescribed interest
groups including, for example, the Ramblers Association, Open Spaces
Society and British Horse Society. The Council will consult all relevant parties
including these when making an order in accordance with the statutory
procedures. We would also contact these parties at the informal consultation
stage, which we would arrange following receipt and validation of your
application.

Although not discussed previously at the meeting, you may wish to consult
with these additional prescribed bodies directly at this time and submit details
of any responses received with your application. This could help to identify any
potential objections and allow them to be addressed at an early stage. Your
legal team may be able to advise on the application and make some
recommendations in relation to this.

| hope the above assists and do let me know if you require any further
information or guidance on the application process.

21.WMBC’s email also requested to know when NR thought it would be in a position

to submit the application.

22.WMBC also asked NR to consider the legal criteria applied to the (TTRO)

Temporary Traffic Regulation Order Closure following the fatality and as the
Coroner's Inquest has taken place, what legal criteria NR were to apply to ensure

this is still met.

23.In an email dated 16.01.18, NR informed WMBC that it was collating the closure

order information and will forward it to WMBC.

24.On 31.01.18 an electronic version of NR’s closure application was received by

WMBC and a paper copy was received on 05.02.18.

25.As in the past, WMBC are undertaking an urgent review of the NR’s revised
closure application and will continue to provide assistance and guidance to NR in

the closure application process.

26. Having undertaken an initial review of NR’s revised closure application, WMBC’s

initial observations are as follows:

e There is a reference to a revised risk assessment but no risk assessment has

been received;

e A number of objections have been received to the NR consultations, which

will need to be examined;

e No alternative route available for use following closure has been proposed

and therefore no assessment has been made of the adequacy of it.

27.WMBC have contacted NR to request a meeting to discuss the revised
application within the next 7-10 days and it is envisaged that the above and any
other deficiencies in the closure application will be discussed with NR and WMBC
at this meeting.

28.WMBC will therefore continue to provide all relevant guidance and support to NR
in its closure application and will further continue to urgently review any revised
closure applications and supporting evidence/documents submitted by NR.

B. Converting Wallows Lane Railway Crossing into a controlled crossing
using suitable methods.

29.As WMBC is not the landowner or the operator on which the Wallows Lane
Railway Crossing is located, it has no authority or legal power to convert the
Wallows Lane Railway Crossing into a controlled crossing using suitable

methods.

30. If NR determines (whether as a result of the Coroner’s Regulation 28 Report or
for any other reason) that a technological safety improvement is required, NR as
the landowner and operator will have to consider converting the Wallows Lane

Railway Crossing into a controlled crossing using suitable methods.

Signed

Mr Kevin Gannon [Team Leader of Highways Development Control
and Public Rights of Way]
On behalf of the Chief Executive of WMBC

Dated this 6 February 2018

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