Freight Track Access Contract

This Part was last updated on 8 December 2014

Part 6. Operation and Maintenance of Trains and Network

6.3 Safety

Rule, clause or Condition	Determination	Date of Hearing	Points made within Determination (Verbatim extracts given in Italics, or between “quotes”)
6.3 Safety	ADA20	Oct 2014	“although at first sight the requirement in the [Track Access contract] for each party to comply with ‘all applicable obligations’ may seem onerous, this must be interpreted to reflect the way in which safety law is enforced on the Network.” A Safety Management System (“SMS”) “must include: ‘procedures to ensure that accidents, incidents, near misses and other dangerous occurrences are reported, investigated and analysed and that necessary preventative measures are taken’.” ….”Schedule 1 to ROGS [Railways and Other Guided Transport Systems (Safety) Regulations 2006] deals with SMSs and Article 2 sets out the basic requirements of an SMS. The section quoted above appears at 2(f)(ii). In my judgment this duty must be conducted honestly and transparently, sharing information with other industry parties where appropriate. Even if this were not the case, the power in [the Track Access Contract] for either Party to make reasonable requests of the other relating to Safety Obligations is relevant”. “Clearly the first duty on the Parties is to discuss any safety concerns with the other, whether these concerns arise from day-to-day operations on the Network or … from a specific incident. “parties to [Track Access Contracts] who must inevitably hold a Safety Certificate or Authorisation - should be familiar with the duties placed on them in their [Track Access Contract], especially those relating to safety.” (ADA20, paras. 5.1.2, 5.1.9, 5.1.10, 5.12.3)

6.4 Movements of Trains onto and off the Network

Rule, clause or Condition	Determination	Date of Hearing	Points made within Determination (Verbatim extracts given in Italics, or between “quotes”)
6.4.1 Suitable Access	TTP10	June 2005	15. The Panel found that, in relation to the EWS Track Access Agreement, there were two immediate matters to address: 15.1. does EWS have any entitlement to have Train Slots allocated when it is not in a position to honour its obligations in respect of Clause 6.4.1? and 15.2. does Network Rail, in the course of managing the Timetabling process in compliance with Network Code Part D, have either the right, or an obligation, to manage Train Slot allocation in a way that can at least provisionally allocate capacity for flows that enjoy only “expectations of rights”?. Has Network Rail behaved appropriately in this instance? 16. The Panel found that the provisions in Network Code D3.2.3, and the range of factors embraced by the Decision Criteria (D6), all implied that Network Rail had the discretion to include all such Train Slots in the Timetable as might sensibly be expected to operate in the currency of the relevant Timetable. By contrast, a Train Operator, whilst it may reasonably expect to see evidence that Network Rail is catering for all realistic possibilities, has no entitlement to require Network Rail to make binding commitments, by way of allocation of Train Slots, when the Train Operator does not have the wherewithal to operate the service for which it has bid. (TTP10)
6.4.1 Suitable Access	TTP257	January 2009	19. “ The Panel considered whether an argument that FL may not have met its obligations under Clause 6.4.1 of its track access contract by not securing suitable access for Train Slots 4R60/61 from FDRC at the Port of Felixstowe, meant that Network Rail had erred in offering FL Train Slots 4R60/61. The Panel considered that, as a matter of fact, FL had not been prevented from running trains in the Train Slots 4R60/61, for reasons of lack of terminal access, but probably only because it had only used those Train Slots for services that already had rights of terminal access. Had Network Rail refused to make FL an offer, citing concerns about FL’s compliance with Clause 6.4.1 of the Track Access Agreement, this might have been the subject of a separate reference to a Timetabling Panel by FL, but is, in any case, not a matter that this Panel is required to determine.” (TTP257)