The High Court has found that three landowners are entitled to use Flights Level Crossing near Arklow to reach land east of the Dublin to Wexford railway, but only for agricultural purposes and subject to limits on the crossing’s width and the traffic it can accommodate. The judge postponed formal declarations and injunctions so the parties could consider arrangements for safe use.
In a judgment delivered on 9 October 2009, Miss Justice Laffoy said the crossing was created as an accommodation way when the railway was built in the 1860s under section 68 of the Railway Clauses Consolidation Act 1845. That provision required the railway company to make and maintain works needed to make good interruptions to adjoining land caused by the railway.
The plaintiffs acquired land on both sides of the line in 2006 and 2007. Some land east of the railway, between the line and the Avoca River, would otherwise be effectively landlocked. The court found that the Flight Estate’s accommodation way had not been abandoned when it transferred land to the plaintiffs: the transaction included a strip west of the railway and a right of way to Vale Road, intended to preserve access across the crossing.
The judge rejected the railway company’s argument that the right ended when ownership of the land was divided, or that it was limited to farming land on both sides of the railway at the same time. She accepted evidence that James Flight had farmed the land for more than three decades and had used the crossing with vehicles and machinery, including tractors and a combine harvester, and to move livestock.
The right she recognised covers access on foot and with vehicles, farm machinery and equipment, including machinery needed to drain the land for agricultural use. The crossing’s span is limited to its original width, rather than the wider span allowed for construction work on the Arklow Bypass. Its condition must accommodate the permitted traffic and, if necessary, be upgraded. The judge did not find a basis for requiring it to match other crossings.
The judgment did not determine the plaintiffs’ entitlement to use the crossing for two other plots acquired from SAFC Arklow Ltd. The evidence about prior use of those plots was insufficient for the same determination, although the judge said their predecessors must have had an accommodation way. She considered it practical to treat the eastern lands on the same basis.
The court said safety requirements, including those under the Railway Safety Act 2005, must be addressed in the context of the plaintiffs’ right. The parties were to try to agree access arrangements, with the railway company retaining control to ensure safety. The judge postponed declaratory and injunctive orders pending discussions and further submissions on their form. She declined to award damages: no special damage had been proved, and she saw no basis for general damages.