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FRIENDS OF LONG ROCK MEXICO CROSSING 2 The Buildings, Long Rock, TR20 9TT 01 736 711 353

21 July 2013 To: Cllr John Wood, Chairman of the Council Paul Masters, Chief Executive Peter Marsh, Corporate Director Environment via email Dear Sirs Closure of the Mexico Crossing We understand you are meeting on Tuesday to discuss this. As interested parties we offer this for your consideration. (1) The temporary closure If you have a good defence to our intended prosecution or if you have any good reason for maintaining the closures beyond six months, then please tell us immediately and we will withdraw. If you don't, then please confirm your agreement to open the crossing without delay and we will withdraw. If there is a third option, please tell us. There is no need for this to reach court. Win or lose, a hearing would be a PR fiasco. If you win you will be blamed for not negotiating with us. If you lose you will be branded as bumbling incompetents or worse. It might be suggested that you had acted in the certain knowledge that what you were doing was unlawful. We enclose a draft of the sort of press statement we would release if we had to apply for a summons. (2) The permanent closure The delay in announcing a decision suggests that your officers have decided to open the crossing but you are reluctant to implement the decision. And the most likely reason for your reluctance is that you have identified potential problems: the two most likely are that the decision could be challenged and that another person could be killed on the crossing. It would be a mistake to see the option of passing the case to the Secretary of State as an easy way of avoiding these (a public inquiry would pose its own problems for you). It is certainly not your only way, and presumably you have considered improving the safety of

the crossing as a way of solving both. Whilst we do not accept that the crossing in its present state is dangerous or that accidents are likely, we can see that improvements would go a long way towards appeasing potential challengers and would reduce the risk of the Council being blamed in the unlikely event that an accident were to happen. There are several effective improvements which could be made quickly and cheaply, and we should be happy to discuss these with you. There are three possible challengers: The Coroner is very unlikely to challenge. He has done what he felt he had to do and moved on, since when he has refused to become involved in any way. He is probably aware that his initial intervention (the Rule 43 Report) was not his finest piece of work and it would be unwise to subject it to unnecessary forensic examination. Network Rail are also unlikely. Although they are fanatically keen to close crossings wherever they can, their application was so weak that they are unlikely to want to defend it at a public inquiry. Ian Prosser, ORR Director of Railway Safety and HM Chief Inspector of Railways, admitted as much at our meeting on 28 March, as your officer can confirm. The family of Jeanette Nicholls are possible challengers, but they have indicated in several ways that they are prepared to consider improvements as an alternative to closure. Presumably you have spoken to them.

It is not clear to us how a challenge could be made. The provisions in Section 118A and Schedule 6 of the Highways Act 1980, which deal with referrals to the Secretary of State and public inquiries, come into operation if (and only if) the council has decided that the crossing is unsafe. Here you haven't, so they don't. Unless there is some sort of residual power for the Secretary of State to receive applications and institute hearings, then the only avenue open to challengers would be by judicial review. This is a serious step: Network Rail would have the funds but not the inclination; the family would have the inclination but not the funds. We look forward to hearing from you on Tuesday afternoon or at the very latest on Wednesday morning. If you want to discuss anything you can phone me any time. Yours faithfully

Mike Bott For FOLRMC