Part 9: Level crossings

Last updated: December 2008. This document ceases to be a controlled document when printed. Please refer to the current version at www.landtransport.govt.nz

2  Responsibilities

2.3  Legal status of level crossings

Historically, there have been two situations in which the ‘need’ for a level crossing has arisen. This has resulted in two broad categories of level crossing – statutory and deed of grant (of right of way).

2.3.1  Statutory

This arises where the construction of the railway line interferes with the existing rights of a landowner or road controlling authority and is provided for in two sections of the Public Works Act 1981 (or in similar provisions of earlier statutes).

Section 166 (d) provides, in respect of any railway authorised under that or any other Act, the responsible Minister may: ‘Make the railway on, across, over, or under any road, motorway, access way, service lane, railway, tramway along the defined middle line; and alter the level of any road, access way, motorway, service lane, railway, or tramway for that purpose’.

Section 169 (1) provides that, where the construction of the railway line has: ‘Cut off all access by road to any land other than Crown land; or separated one piece of the land of any person from another piece of land of that person … , the Minister shall provide access to the land so separated’. Access can be provided by constructing a new road, access way or service lane, or by provision of a level crossing.

Where the land has been subdivided after the construction of the railway, there is no obligation under this section to provide access.

2.3.2  Deed of grant

This occurs where, some time after the construction of the railway, an adjacent landowner or road controlling authority seeks the construction of a level crossing. In such cases, level crossings have been created pursuant to a statutory right to grant easements of right of way, as exemplified by section 35 of the New Zealand Railways Corporation Act 1981 (NZRCA) or by exercise of common law powers available to all landowners.

Section 35 of the NZRCA allows for the grant by the Corporation of an easement of right of way across or along any railway owned by the Corporation. Other operators must rely on common law rights of a landowner for similar powers.

2.3.3  Section 75 Railways Act 2005

The existence of both statutory and common law easements is recognised in section 75 of the Railways Act 2005. That section operates to limit the exercise of some rights under the easement. The provision recognises the underlying easement of right of way at a level crossing is now between a licensed access provider or railway premises owner (both defined in the Railways Act) and adjacent landowners or road authorities, and not necessarily with the train operator. However, it does provide protection to those actually operating railway vehicles by requiring that other rail participants who may be affected by any works are consulted before any consent is given for the work on or at a level crossing or railway premises.

2.3.4  Maintenance obligations

With respect to statutory level crossings, the obligation to maintain the level crossing appears to lie with the railway infrastructure provider or operator. The documents granting the easement of right of way under section 35 of the NZRCA or at common law would normally specify which party has responsibility for maintenance of the level crossing, including the installation and maintenance of any traffic control devices.

2.3.5  Traffic control devices at public level crossings

Section 81 of the Railways Act 2005 provides licensed access providers with the power, but not a duty, to install warning devices at level crossings. The determination of the exact level of protection to be provided is at the discretion of the licensed access provider after consultation with other affected persons, including (but not limited to) the relevant road controlling authority and adjacent landowners.

Clause 9.2(1) of the Traffic Control Devices Rule 2004 imposes a duty on the road controlling authority to install warning signs in advance of a level crossing on a public road, and authorises the installation of such signs on other roads. Clause 9.3(1) imposes a duty to install specified road markings in advance of a level crossing on a road that has a speed limit of 70 km/h or more or that is multi-lane.

Clause 9.2(2) reflects section 81 of the Railways Act, and provides that a rail access provider, after consultation with the road controlling authority, may install warning signs and other traffic control devices at a level crossing.

Clauses 9.3(4) and 9.4, however, effectively provide that any access provider that does install warning signs or other traffic control devices at a level crossing must ensure that those signs and other traffic control devices comply with the requirements of the Rule.

Table 2.1  Classification of level crossings

	Public	Private
Statutory	Section 166 Public Works Act 1981 (or earlier provision). Built across existing road.	Section 169 Public Works Act 1981 (or earlier provision). Construction of railway has split land or cut it off from road access.
Deed of grant (of right of way)	Section 35 New Zealand Railways Corporation Act 1981 (or earlier provision)/common law. Road controlling authority request for deed of grant for public level crossing where road built across existing railway – at nominal rental only.	Section 35 New Zealand Railways Corporation Act 1981 (or earlier provision)/common law. Landowner request for deed of grant for private level crossing to access private property.

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