This Part was last updated on 2 September 2010
Rule, clause or Condition |
Determination |
Date of Hearing |
Points made within Determination (Verbatim
extracts given in Italics, or between “quotes”)
|
|
“Operating
Constraints” |
NV58 ORR determination of EWS’ appeal against NV58 |
April 2004 January 2005 |
9.3 “
In respect of some elements of the freight operating constraints,
namely the Rules of the Route/ Rules of the Plan, there is ample precedent,
in the determinations of both this Committee, and of Timetabling Committee,
that changes can be opposed, and overturned, but only on the basis that
changes would infringe specific access rights. There is no precedent for challenging change in the general 9.4 It would be illogical to treat other aspects of the freight
operating constraints differently.
At any time they are the product of past history and duly applied
change procedures (Condition D or Condition G as appropriate), and any
objection to change should logically require to be justified on the basis of
identified specific impact on contractual rights. It cannot be right to challenge a Network Change solely on the
grounds that it would result in change to the Network. 9.5 Where no rights, or reasonably prospective rights, are
infringed, it would be wrong to curb Network Rail’s freedom to exercise its
discretion as to the detailed management of the Network, given that it is
Network Rail that is the accountable body for both the efficiency and the
safety of that Network.” NV58 This determination was the subject of appeal by EWS to
the Rail Rgulator. In January 2005
the Office of Rail Regulation determined the appeal and upheld the
determination on the Network and Vehicle Change Committee, adding the
following amplifications of the NVCC conclusions “17. EWS’ view was that EWS
(and other freight operators) had a permission to use the whole Network Rail
network, contained in Clause 5 of their track access contracts. EWS considers that it could therefore
prevent a Network Change by arguing under Condition G2.1(a)(i) that the
implementation of the Network Change “would necessarily result in Network
Rail breaching an access contract to which that Train Operator is a party”. EWS’s view was that such a right would
however only be applicable in those circumstances ”where Network Rail proposes to amend the freight operating
constraints in such a way that a freight operator believes that the Network
Change will adversely affect the prospects of allowing its business to grow
and evolve over time”. EWS said
that, when it entered into its existing track access agreement, it did so “in
expectation that the entirety of the contract would enable the business to
grow and evolve in response to the changing nature of its customers
requirements”. IN this particular
case, EWS believed that the removal of the loop would indeed have an adverse
effect on its ability to grow and evolve its business. 18. EWS argued that the NVCC was wrong to
conclude that “any objection to change should logically require to be
justified only on the basis of identified specific impact on contractual
rights rather than in the generality of rights”…… ORR’s assessment 20. Under Clause 5.1 of
EWS’ track access agreement, Network Rail grants EWS permission to use its
network in accordance with the terms of the agreement. However, Clause 5.2 states that the
permission to use the network shall, except where the context otherwise
requires, be construed to mean permission, among other things, “to use the
track comprised in the Network in accordance with the Network Code for the
provision of the Services in accordance with their Service Characterisitcs
and for any Alternative Train Slots, using the Registered Equipment in accordance
with the Freight Operating Constraints.
… Clause 5.2 explicitly
provides that the permission to use is subject “in each case and in all
respects to the network code and the Freight Operating Constraints”. 21. ORR does not consider
that EWS has demonstrated before the NVCC or in this appeal that the
implementation of the proposed Network Change will necessarily result in a
breach of its track access agreement.
The expectations which EWS may have had when it entered into the
contract….do not constitute contractual terms. … , ORR does not
accept EWS’s interpretation of the permission to use clause and considers
that it would lead to a perverse outcome because it would enable EWS and
other freight operators) to prevent any Network Change taking place anywhere
on the Network, irrespective of whether the operator had any specific rights
on the route where a Network Change was being proposed. 22. The assessment above is consistent with the NVCC’s conclusion that “. It cannot be right to challenge a Network Change solely on the grounds that it would result in change to the Network” (paragraph 9.4 of its determination). ORR therefore rejects this element of EWS’ appeal.” OFFICE OF RAIL REGULATION DETERMINATION OF AN APPEAL BY ENGLISH WELSH & SCOTTISH RAILWAY AGAINST A DETERMINATION OF THE NETWORK AND VEHICLE CHANGE COMMITTEE REGARDING THE PROPOSED REMOVAL OF RUSCOMBE LOOP (ref NV58), paragraphs 17 to 22) |
|
“Operating
Constraints” |
ADP 31 |
January 2008 |
ADP31 |
|
“Operating
Constraints” |
ADP52 |
April 2010 |
[This dispute was
primarily about the operation of the Transfer of Rights provisions of Part J7
of the Network Code, and the definition of “Reasonable Ongoing Commercial
Need”. In this case the Right in
dispute related to a Train Slot over the single-track West Highland Line,
that, by virtue of a dispensation set out in the “Scotland Route Specially
Authorised Loads Book”, gave the Train Operator the permission, where
necessary, to operate the service at a length that exceeded the laid down
“operating constraints” length limit.
The practical impact of the existence of this Permission, which was
not asserted as a right in any Track Access Agreement, is that it prevented
Network Rail from authorising extra length for any Train Slots for other
trains that might require to cross the contested train.] Thus 13.
“the Panel found
that 13.1.
…. 13.2.
…. 13.3.
….. Network Rail should reasonably have considered whether 13.3.1.
DBS’ “reasonable on-going commercial need” was adequately met
by a service such as its contractual rights in Schedule 5 prescribed, namely
an SX service subject to the standard Operating Constraints on the West
Highland line, and in particular a maximum train length of 31 SLU; 13.3.2.
there was any “reasonable on-going commercial need” for the
special dispensation for either 6Y15 or 6E16 to operate between Mossend and
Fort William with a maximum length increased to 41 SLUs; and that 13.3.3.
it needed to take immediate steps, as part of its responsibilities to
maximise the capability of the Network, to withdraw this, and other,
superannuated dispensations, so that its discretion is unfettered should
another Train Operator (such as GBRf) wish to invoke the precedent that such
dispensations can reasonably be granted, but in connection with a different
Quantum Access Right. 14.
The Panel was concerned that the Network Rail representatives could
not give clear answers as to how they would address the matter of reviewing and
revising such special operating dispensations as had outlived their
usefulness, but was satisfied that 14.1.
the responsibility for such “good housekeeping” was unequivocally
Network Rail’s, and 14.2.
the carrying through of such “good housekeeping” should not delay
putting GBRf in the position that it had adequate Level 1 Rights and Train Slots to fulfil those
responsibilities to convey the Alcan traffic that it had acquired as a result
of the tendering and transfer of rights mechanisms contemplated in Condition
J7. The Panel’s Determination: 15. Taking all the foregoing arguments into
account, the Panel therefore finds, in respect of the representations
made by the parties, that the following points are decisive in its
determination; 15.1. …; 15.2. … 15.3. on the other hand, the requirement that
the “on-going commercial need”
should be adjudged “reasonable” implies that, where there is
the possibility of a discretion in relation to the scale of the Right, the
Right that it secures should be proportionate to the scale of the commercial
need. In this instance there is such
discretion, as between a right for DBS to operate a service as per its
Schedule 5 Level 1 Rights conforming to the standard Operating Constraints of
a maximum train length of 31 SLU, or to continue to have access to the option
to operate at the dispensation length of 41SLU. 16. The Panel therefore determines that
16.1. … 16.2. Network Rail should have considered
whether that “on-going commercial need” reasonably justified
perpetuating the discretionary permission to operate those services at a
train length of 41 SLUs. In the view
of the Panel, given the evidence presented, Network Rail should reasonably
have concluded that that train length dispensation 16.2.1. was not something to which DBS was
contractually entitled, and 16.2.2. was not appropriate to the scale of DBS “reasonable
on-going commercial need”, and therefore, to the extent that it is an
impediment to the granting to GBRf of appropriate Level 1 Rights to permit
the efficient operation of the Alcan traffic 16.2.3. could, and should, be withdrawn at Network
Rail’s initiative.” [ADP52] |