Railway Safety Act 2005

Prohibition notice.

78

78.—(1) Where an inspector is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of—

( a) a F111 [ railway organisation ] and the activity involves, or is likely to involve, an immediate and substantial risk to the safety of persons, or

( b) any other person on or near a railway and where the activity poses, or is likely to pose, an immediate and substantial danger to the safety of persons involved in the operation of the railway or being carried on the railway,

or where a F111 [ railway organisation ] or person fails to comply with a requirement of this Act, the inspector may serve on that F111 [ railway organisation ] or person a notice (“prohibition notice”) signed by him or her.

(2) A prohibition notice shall—

( a) state that the inspector is of that opinion,

( b) specify the matters which in the inspector's opinion give or, as the case may be, are likely to give rise to the said risk,

( c) where, in the opinion of the inspector, the matter involves or, as the case may be, will involve a contravention of any provision of this Act, specify the provision or provisions as to which the inspector is of that opinion, and give particulars of the reasons why he or she is of that opinion, and

( d) direct that the activities to which the notice relates shall be carried on neither by nor under the control of the F111 [ railway organisation ] or other person on which the notice is served nor by nor under the control of any other person unless the matters specified in the notice in pursuance of paragraphs (b) or (c) have been remedied.

(3) A prohibition notice shall take effect—

( a) if the notice so declares, immediately the notice is received by the F111 [ railway organisation ] or person on which it is served, and

( b) in any other case—

(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later, or

(ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

(4) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (3)(a) shall not have the effect of suspending the operation of the notice:

Provided, however, that the appellant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

(5) ( a) A F111 [ railway organisation ] or other person who is aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the judge may—

(i) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification; or

(ii) cancel the notice.

( b) Where on the hearing of an appeal under this section a prohibition notice is confirmed, notwithstanding subsection (3) the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case he or she considers appropriate.

(6) In considering an appeal against a prohibition notice, the Court shall take into account the general duties of F111 [ railway organisation ]s and others under sections 36 and 37.

(7) A F111 [ railway organisation ] or person who appeals against a prohibition notice or who applies for a direction suspending the application of the notice shall at the same time notify the Commission of the appeal or the application and the grounds for the appeal or the application and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(8) An inspector may withdraw a prohibition notice.

(9) ( a) Where a prohibition notice has been served and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

( b) An application to the High Court for an order under paragraph (a) shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under paragraph (a) is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(10) On the application of the F111 [ railway organisation ] or other person concerned, an inspector shall confirm in writing if the circumstances giving rise to a prohibition notice no longer prevail or have been remedied to his or her satisfaction and if he or she so confirms, the notice shall no longer have effect.

(11) The Commission shall, unless in its opinion it is not appropriate in a particular instance to do so, make public details of a prohibition notice, including the name of the person to whom the notice is addressed and the situation giving rise to the notice.

(12) A person who fails to comply with a prohibition notice is guilty of an offence and is liable—

( a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months, or to both, or

( b) on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 2 years, or to both.

Annotations:

Amendments:

F111

Substituted (25.11.2013) by European Union (Railway Safety) Regulations 2013 (S.I. No. 444 of 2013), reg. 20(1)(d).