Endeavour
has been made to annotate determinations relating to previous versions of Part
D to the current version but users are cautioned to consider any quoted item in
the context of the full text of the original determination.
This part was last updated on 22 March 2019
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
General Principle |
TTP01 |
May 2005 |
17. …the
Timetabling process, as set out in Network Code Part D, is sequential. In principle the Major Project notice {now Possessions Strategy
Notice] creates a
context for the subsequent crystallisation of the Rules of the Route [now Engineering Access
Statement]; the Rules of the Route [now Engineering Access
Statement} then set
the context for detail incorporation of train specifications into the
Timetable. However, the individual
Train Operator, before surrendering any right to influence, through the
disputes procedure, the detail of the “method of implementation of the project”
requires an assurance that its service requirements can be appropriately
honoured. That assurance can only be
based on one of two considerations, namely
· a demonstration, in effect a draft timetable, that the services in question (or viable alternatives) can be accommodated; or ·
confidence
in the integrity of the internal procedures of Network Rail that, where a
commitment is given that a service can be provided, then, even though no
details can be supplied, that commitment will be honoured, whatever the
consequent implication for Network Rail. 18. The Panel
considered that the former of these two approaches implied the undertaking of
much premature analysis, and that this was potentially an unreasonable
extravagance, likely ultimately to be a counter-productive diversion of
train-planning resources. However,
it may be inevitable, if ·
there is
no alternative, and credible, means of giving the necessary assurance that
the detail of the Major Project notice {now Possessions Strategy Notice] proposals are not inimical to the interests
of the Train Operator. and · there is no credible assurance that appropriate diversionary capacity is, and can be made, available. |
|
General Principle |
TTP244 TTP244 - ORR
First determination TTP244 ORR
Second Determination |
September 2008 Feb 2009 June 2009 |
“25.5.
In the circumstances where the substantive issues that have been
argued by the Parties relate primarily to matters of principle in the
operation of the Timetabling procedures, and that it has been demonstrated
that WSMR’s Firm Rights have (largely) been honoured, the Panel considers
that there is no provision in either the Track Access Contract or the Network
Code that prescribes a remedy be granted in accordance with ADR Rule A1.19
(a) [now Rule
A6(a)]. Furthermore, taking account of all the
other arguments from the Parties, the Panel considers that there is no need
for it to exercise its discretion, as contemplated in ADR Rule A1.19 (b) [now Rule A6(c)], “after due consideration of all
remedies and orders that could properly be made”, in circumstances where
it has not been demonstrated that WSMR has been materially wronged. Therefore there are no grounds for
directing Network Rail as requested.” (TTP244) Determination TTP244 was referred on appeal to ORR. ORR issued two determinations, the first
concerned with “determination
on the legal interpretation of the contractual provisions of the Network Code
in relation to the preparation of the First Working Timetable” and the second with
the above finding of the Panel. In ORR’s first determination (dated 23 February 2009) “ORR disagrees with the
Panel’s Finding,…. that the fact that WSMR’s Firm Rights were satisfied
renders unnecessary any qualitative judgement as to the potential effect of a different approach by NR to the
timetabling process on the Train Slots ultimately offered to WSMR.” [[Paragraph 73, ORR’s FIRST Determination of the appeal by
the Wrexham, Shropshire And Marylebone Railway Company Ltd ('WSMR")
against Determination "TTP244" of the Timetabling Panel of the
Access Disputes Committee in respect of a joint reference by WSMR and Network
Rail Infrastructure Ltd (“NR”) regarding the application of Part D of the
Network Code and the train slots offered by NR to WSMR for the December 2008
First Working Timetable] This issue, and whether in turn there was a liability on
Network Rail in any way to compensate WSMR, was addressed in the 2nd
Determination (dated 26 June 2009), which focussed upon Network Rail’s degree
of compliance with ORR’s interpretation of Conditions D2 and D3. In the circumstances of the case,
ORR concluded that there was no grounds for concluding that there should be
any question of compensation, as Network Rail had substantially complied with
the interpretation of Conditions D2 and D3 as construed first by the Panel,
and secondly as elaborated by the ORR in its First Determination. [See ORR’s SECOND
Determination of the appeal by WSMR against
Determination "TTP244" of the Timetabling Panel of the Access
Disputes Committee in respect of a joint reference by WSMR and Network Rail
Infrastructure Ltd (“NR”) regarding the application of Part D of the Network
Code and the train slots offered by NR to WSMR for the December 2008 First
Working Timetable]. |
|
General Principle - Operation of Part D with appropriate
formality |
TTP244 - ORR Second Determination |
June 2009 |
58.
It should
be emphasised that the Code sets out a clear set of obligations and rights on
the part of NR and train operators which govern the timetabling process.
While ORR has no wish to see parties embroiled in unnecessary bureaucracy, it
is clear that the process for the development of the 2008 FWT was conducted
with considerable informality and, in some instances, disregard for the
formal contractual processes. This has led at the very least to confusion on
the part of WSMR as to its rights and NR's obligations and to a lack of
transparency as to the process at various stages. 59.
As
infrastructure manager and the entity controlling the timetabling process, NR
has a particular responsibility to ensure that the process operates properly
and with due regard to the interests of all parties. NR's operation of an
informal, iterative, collaborative compilation process for this complex
timetable appears to have been adopted with good intentions, but it is not
clear to ORR that the timetabling process has been conducted in a way which
accords in all respects with the Code as agreed by all parties and approved
by ORR. This has led to dissatisfaction on the part of WSMR as to its
position and has precipitated a dispute which has taken the parties, the
Panel and ORR some considerable time to resolve. 60.
While ORR
is satisfied that WSMR's position was ultimately unaffected by the process
adopted in this instance, this may not always prove to be the case. At the
very least, NR's approach leaves its timetabling decisions vulnerable to
challenge. The following informal aspects of the process, in particular,
should be addressed: (i) Informality in the format, timing,
notification and consideration of bids. The
confusion as to the procedural requirements in relation to bidding which has
arisen in the present case could be avoided by ensuring that there is a level
of uniformity in the format in which bids are presented and that the
requirements are made known. Further, NR should ensure
that bids are considered and responses are made in accordance with the formal
timetabling processes set out in the Code. As stated at paragraph 63 of the
First Determination, there is no obligation on NR to optimise bids since the
timetabling process is underpinned by the assumption that the bids submitted
by bidders will be optimised bids. Indications of acceptance or rejection of
submitted information before the Priority Date have the potential to
undermine this process if they lead to the submission of what the individual
train operator regards as a 'compromised' bid. (ii) Informal discussions between
train operators concerning flexing. The common practice of
negotiation between operators as to flexing is not provided for in the Code
and appears to be unnecessary save in cases where the proposed flexing is
outside the scope of NR's right to flex under the Code and involves
alteration to a particular operator's contractual rights. It would therefore
be more appropriate for NR first to ascertain both the scope of the relevant
train operator's contractual rights and whether the proposed flex is
consistent with the Decision Criteria so as to confine approaches by
operators to those cases where they are actually necessary. NR should also ensure that
the basis of its decisions as to whether or not to flex certain train slots
is clear to train operators. (iii)
Issue of Timetables In the course of oral
evidence on the bid and offer process, it became clear that no draft timetable
was issued in May 2008. Further, it was unclear whether NR issued a full
version of the FWT at the time formal offer letters were sent on 11 July 2008. While these
are not allegations relied upon by WSMR and in any event have no causal link
with WSMR's assertion that it should have received train slots with shorter
journey times, it must be emphasised that issue of these timetables is a
requirement ….. It is a requirement which enables train operators to make an
informed decision as to whether to pursue an appeal of a timetabling decision
within the permissible time frame. 61.
If NR or
WSMR does not consider the procedure as set out in the Code to be practical,
there are processes which can be used to initiate change. Unless and until
such processes are used, the procedure set out in the Code should be followed
in its entirety. This will ensure that a transparent decision-making process
is operated which leaves parties clear as to their respective positions and
which is not at risk of being impugned. [ORR’s SECOND Determination of the appeal by the
Wrexham, Shropshire And Marylebone Railway Company Limited ('WSMR")
against Determination "TTP244" of the Timetabling Panel of the
Access Disputes Committee in respect of a joint reference by WSMR and Network
Rail Infrastructure Limited ("NR") regarding the application of Part
D of the Network Code and the train slots offered by NR to WSMR for the
December 2008 First Working Timetable. (26 June 2009)] |
|
General Principle |
TTP271 |
April 2009 |
“15. The starting point for the Panel’s
considerations is that responsibility for best use of the Network, and for
ensuring that it is the most efficiently renewed and maintained is, subject
only to the overall approval of the Office of Rail Regulation, the exclusive
responsibility of Network Rail. To
find therefore against Network Rail, the Panel would have to be satisfied
that Network Rail had failed in the execution of one of the procedures to
which it is contracted through the Track Access Agreements and the Network Code,
or that it had frustrated a specific right of one or other Train Operator, or
that it had made a capricious decision which did not take into account either
the facts of the case, or the guidance embodied in …. the Decision Criteria.” |
|
Definition -“Working Timetable” |
ADP31 |
February 2008 |
Since this
determination, the Part A definition has been revised to “means as set out
in Condition D2.1 and 2.1.6”. Custom
and practice of many years is that the Working Timetable embraces a number of
other key operating documents. This became a
decisive question in determining ADP31, where the Panel found that it had to
consider the contractual status of the Sectional Appendix. It concluded “This document, full title “the
Sectional Appendix to the Working Timetables and Books of Rules and
Regulations” is NOT given a defined contractual status within the Network
Code or a Passenger Track Access Agreement, except insofar as it is
incorporated by reference by virtue of its title, and the obligation on
Network Rail to produce (under Part D) a “Working Timetable”. The Panel was familiar with the
operational use made of the Sectional Appendix; its attention was drawn to a
statement by the ORR in March 2006 (order against Network Rail for
contravention of Condition 7 of its Licence), which states “the capability
of the infrastructure is described in the sectional appendix for a particular
part of the network (including such matters as gauge, line speed, and route
availability). The sectional
appendices are incorporated in the industry network code and are used in
access contracts between Network Rail and freight [emphasis added]
train operators to describe the network covered by the contract. It is therefore important that these
documents are accurate”. The tabulations and format of the various volumes
of the Sectional Appendix are then governed by a Railway Group Standard
(formerly GE/RT/8004; to be superseded by GO/RT/3215), but the route specific
content and detail is the responsibility of the respective management areas
within Network Rail. ” {ADP31} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
D2.2 General Principle |
Ttc85 |
December 1999 |
The Committee
sees the process of reviewing Rules of the Route/Rules of the Plan [now the “Rules”] as
one where there is great need for care in presenting proposals in ways such
that the conscientious Train Operator should be in no doubt as to the
significance of what is mooted, and the supporting reasons. This is particularly the case where a key
term (such as “Headway”, not a contractual term, but key within Rules of the
Route/Rules of the Plan) was to be redefined/re-interpreted. {ttc85 in relation to former Condition
D2.1} |
|
D2.2 General
Principle |
ttc25 |
October 1996 |
The Committee,
when its attention was drawn to the fact that Railtrack had published a
document entitled “Access Planning Process - Winter 1997 Timetable” for consultation
as part of the Rules of the Plan [now Timetable Planning Rules] , expressed no objection in principle to
such a document, but cautioned that it should not contain wording that could
be reasonably interpreted as at variance with the Track Access
Conditions. {ttc25} |
|
D2.2 Review by Network Rail |
ttc1, ttc3, ttc35 |
December 1994 December 1994 June 1997 |
Rules of the Route [now the Engineering Access
Statement] need to be overtly
related to the number and frequency of possessions that Railtrack intends to
take for the purpose of maintaining and repairing infrastructure. Railtrack must be able to demonstrate
reasonable justification …. and to observe the due process and time scales of
consultation. {ttc1, ttc3, ttc35} The Committee
confirmed that a Train Operator, who was proposing …. in good faith to enter
into an Access Agreement covering a particular Route, was entitled to
participate in consultation on detailed Rules … for that particular Route ….
and that the consultation should include an adequate account of the reasons
for the Rules ….as proposed. {ttc35} |
|
D2.2.2 Preliminary
Rules |
ttc1, ttc3, ttc17, |
December 1994 December 1994 July1996 |
The Committee has emphasised that there
should be rigid compliance with prescribed deadlines and observance of due
process such as prescribed consultation on changes to the Rules ….. Any changes to these Rules
should be accompanied by reasons …. and
the subsequent process of consultation should be conducted in a manner which
is subject to tests of reasonableness.
{ttc17} Given the relatively short
time period allowed for this process, the Committee has suggested, as an
example of reasonableness, that it would be helpful if changes were to be
clearly identified, for example by the use of highlighting. {ttc17} |
|
D2.2
Preliminary Rules |
ttc35 |
June 1997 |
One Train Operator was
reassured to learn, at a hearing, that the Rules of the Route for 1998/9 for
a section of route in dispute represented a peak of maintenance workload that
would permit a significant reduction in blockages associated with such
maintenance in subsequent years. That
this had not been revealed during the consultation period was seen by the
Committee as a “most telling deficiency” in the application of D2.4.2
[D2.1.3][now
D2.2] {ttc35} The Committee
determined that it would expect future consultation on Rules of the Route to
take account of the need for a full exposition of reasons and for any
subsequent amendments to take account of the preparedness of individual Train
Operators to accept short term disbenefit for long term gain. However, the Committee has highlighted the
need for care that any bilateral understanding between Railtrack and a Train
Operator should not deny other Train Operators the opportunity for comment
and, if necessary, reference to the Timetabling Committee before the issue of
definitive Rules of the Route [now Engineering Access Statement] in the Bidding Information [now Strategic Capacity
Statement]. Indeed the Committee directed Railtrack to
take account of this in formulating its proposals for the Rules of the Route
[now Engineering
Access Statement] for subsequent timetables. {ttc35} |
|
D2.2 General
Principle |
ttc161b |
September 2002 |
“The function of the Rules
of the Plan [now Timetable Planning Rules] was to provide “rules
regulating …the standard timings and other matters necessary to enable trains
to be scheduled into the Working Timetable …” (now Condition A1.2
“Definitions”)”. As has been
established (in ttc87, and NV9, NV13, NV17, NV18, and NV26-31) there is a
right to challenge changes to Rules of the Route/ Rules of the Plan [now, the Rules] where such changes will impair bidding
for Firm Contractual Rights. Once
the consultation process is complete, and any disputes resolved, Bids are
only compliant where they are consistent with the Rules of the Plan [now Timetable Planning
Rules]. For this reason, Timetabling Committee
upheld an appeal by Arriva Trains Northern against a proposal that detailed
timings for network services for the National Logistics Unit (NLU) should be
included in the Rules of the Plan [now Timetable Planning Rules].
Such a set of defined paths would be different in kind from the other
provisions of Rules of the Plan [now Timetable Planning
Rules] “e.g. headways,
maximum number of services per hour, and specific requirements to reserve a
certain proportion of each hour as “white space”, …which… are the
means by which reasonable bounds are put on the aspirations of any one
operator, in the interests of the smooth operation of the Network”. A set of defined paths for NLU services would in effect be
asserting that certain services had a right to be “first on the graph”, and
this would be at odds with the general principles of the timetabling process. {ttc161B} |
|
D2.2 General
Principle |
note to
ttc180, ttc182,
ttc189, ttc192, and ttc194 |
August and
September 2003 |
The fact that
track maintenance, or renewals, programmes may be in arrears does not mean
that Network Rail can presume that it can vary the … [Rules] …without risk of challenge by Train
Operators. It is however incumbent
upon the individual Train Operator, whose Firm Rights might be curtailed if a
proposed change became incorporated into the [Rules}
to challenge and dispute the proposal.
Such challenge must be made in accordance with the processes and
timescales laid down in Part D {note to ttc180}, {ttc182}, {ttc189},
{ttc192}, and {ttc194} |
|
D2.2 General
Principle - Need to carry
out a Timetabling exercise |
TTP03 |
July 2005 |
On a number of
occasions where a Train Operator and Network Rail are in dispute in relation
to the impact of diverting services in order to accommodate works on the
regular route, the Train Operator has sought to require Network Rail to carry
out a complete timing exercise to support assertions that may be made at
consultation. Neither Panels, nor
Panel Chairmen (when issuing directions) have supported this approach. However, this position has been adopted
only in the expectation that parties are in a position to honour their
respective forecasts and/or commitments. Thus: 40. “The Panel is prepared to accept the
“confidence” of Network Rail as an undertaking, based on professional
judgement, that it can, and will, discharge its responsibilities to provide
its Train Operator customers with adequate diversionary routes. It is, after all, Network Rail that is
responsible for honouring such commitments.
At the same time, the Panel must give equivalent consideration to the
professional judgement of EWS when, at paragraph 7.6, it asserts that
circumstances “may result in EWS’ customers taking their business
elsewhere”. It is, after all, EWS
that has the experience, and the accountability, for dealing with customers
that (unlike those of Network Rail) do have alternative suppliers to turn
to. 41. In an appeal such as this, the
professional judgements of the parties are an inevitable input to the Panel’s
balancing of the Decision Criteria.
The Panel has therefore to assume that the parties, in offering those
judgements as factors for the Panel’s consideration, are making implied
commitments in relation to the Panel’s determination. Thus, in this case, 41.1.if the Panel accepts Network Rail’s
confidence, and agrees that it will not direct Network Rail to “carry out
prematurely detailed evaluations or planning exercises” it is on the
understanding that Network Rail has committed itself to providing the
necessary train slots or facilities.
Equally, 41.2.if the Panel accepts EWS’ assertion, and
therefore upholds its appeal against the proposed Rules of the Route [now Engineering Access
Statement], it is on
the understanding that EWS has every expectation that the train slots in
question will, on the days or weeks be required for the passage of real flows
of traffic.” {TTP03} |
|
D2.2 General
Principle |
TTP10 |
June 2005 |
“ 20.1. EWS
has no entitlement to the inclusion into a timetable of a Train Slot which
cannot, for reasons of lack of access rights to a key terminal, operate at
any defined future date;” |
|
D2.2 General
Principle |
TTP04 |
August 2005 |
In
this instance the Train Operator was objecting to two significant possessions
because they would prevent certain Ancillary Movements, from an active depot
to a suitable storage point, these movements being necessary to clear siding
capacity in the depot, to permit the working of two additional revenue
earning services. The Panel
considered that, in such an instance, the significance of the Rights held by
the Train Operator was not that empty wagons could move from point A to point
B, but that those wagons could be moved away from point A to some other
adequately effective location. The
Panel therefore determined that the Train Operator was entitled to train
movements that reasonably achieved the function of the normal Ancillary
Movements, and that Network Rail was entitled to the Train Operator’s
cooperation in implementing such equivalent but different movements. {TTP04} |
|
D2.2 General
Principle |
TTP194 |
February 2008 |
11.
The
Panel concluded that two documents are decisive in this matter, namely, Part
D of the Network Code, and in particular Condition D2.1 [now D2.2], and the National Rules of the Plan [now Timetable Planning
Rules], and in
particular Section 3 “PARTP”. These
two documents are inter-dependent, and it is this inter-dependence which
determines which has primacy in relation to the circumstances of this
case. Thus 11.1. Conditions D2.1.1 to D2.1.7 [now D2.2] prescribe the process and timescales for
the annual (and intermediate) review of the whole corpus of Rules …, both
National and in respect of Territory, Region or Route. This process is, by virtue of its
inclusion in the Network Code, directly subject to the scrutiny and approval
of the Office of Rail Regulation.
However, the process only has significance to the extent that it
results in the “applicable Rules of the Plan or the applicable Rules of the
Route ” documents which, whilst not directly subject to Regulation, have de
facto Regulated status; they depend upon the agreement of the Train
Operators, which agreement can be tested through the Access Dispute Resolution
process, up to and including Part M appeal to the Office of Rail Regulation. 11.2. Condition A1.4 [now A1.19h)] stipulates that “In the event of any
conflict of interpretation between this code and an Access Agreement (not
including this code) the following order of precedence shall apply: (1) this code; and (2) the Access
Agreement”. One practical exemplification
of this is that the Rules of the Plan/ Rules of the Route acquire their
contractual standing from the operation of Part D, whilst the status of Firm
Rights, which derive from a Schedule 5 of a Track Access Contract, are
explicitly subject to “the applicable Rules of the Plan or the applicable
Rules of the Route”. 11.3. Conditions D2.1.1 to D 2.1.7 [now D2.2.1 to D2.2.6] serve to empower only the “applicable
Rules of the Plan and Rules of the Route”.
Where those “applicable Rules” require intermediate amendment,
Condition D2.1.10 [now D2.2.7]
requires and empowers Network Rail to devise, and to obtain the agreement of
Train Operators, for a structured and disciplined amendment procedure. This is the basis for Procedure for Altering
Rules of the Route or Rules of the Plan other than through the Twice-Yearly
Process Having Effect from a Passenger Change Date (“PARTP”). {TTP194} |
|
D2.2 General
Principle - Need to carry
out a Timetabling exercise |
TTP271 |
April 2009 |
“ 22.6. whereas it may not be a sensible
use of Train Planning resources to require Network Rail in every instance, to
carry out full planning exercises to demonstrate that diversion Train Slots
can be made available, where, as in this specific case, Network Rail, on the
basis of other information and experience is prepared to commit to a standard
of alternative provision, then Network Rail is to be encouraged to make that
commitment at the earliest realistic date, and so enable timetable and
resource planning to commence earlier.” [paragraph 22.6.
TTP271] |
|
D2.2 General
Principle |
TTP371/513/ 514/570/571 |
December 2014 |
“It may well be that there had been some unanticipated
cumulative effect of individual items of Network Change on the …. route over
recent years which is now giving Network Rail cause for concern regarding
performance delivery, but there had not been demonstrated any contractual
entitlement to revise the Timetable Planning Rules (with the consequent
potential for reduction in capacity). … It is not the function of a Panel to punish any party but
unilateral changes to the Timetable Planning Rules which have not been
subject to proper consultation cannot simply be endorsed by a Panel, as that
will risk fossilising possible reductions in the capacity of the
Network. Whilst recognising the
importance of performance, the Panel was conscious of the need for
determinations to seek to deliver all the objectives of the Network Code, including
those related to capacity, whilst in particular ensuring that the contractual
rights of Access Parties are respected.” (TTP371/513/514/570/571 paras. 4.2.6 &
4.2.7) |
|
D2.2 General
Principle |
TTP371/513/ 514/570/571 |
December 2014 |
“a Timetable Planning Rule
change related solely to a Network Change should not be put into effect
before the associated Network Change is implemented” (TTP371/513/514/570/571, paragraph 5.1) This paragraph of the Panel
determination was the subject of an appeal to ORR and was overturned. |
|
D2.2 General
Principle |
TTP807/808 |
June 2015 |
“6.1.1 …. Timetable Planning Rule changes may not be implemented if the
associated Network Change has not been established and implemented under
Condition G.10 of the Network Code. …. 6.1.2 This determination does not prevent Network Rail proposing TPRs
changes but these should be conditional upon the Network Change being
established and implemented, and the changes to the Rules need to state
whether TPRs changes are subject to the implementation of Network Changes. 6.1.3 This determination does not remove the onus upon Network Rail and
Timetable Participants to discuss and to agree TPRs values in the absence of
established Network Change.” (TTP807/808) These paragraphs of the Panel
determination were the subject of an appeal to ORR and were overturned. |
|
D2.2 General
Principle |
TTP1064 |
April 2017 |
“It
is … our view that the TTP’s statement that all available sources of
information should be used, is to be read in conjunction with the TTP’s finding
that ‘… professional judgement must be
applied in assessing which inputs are likely to be useful …’. This recognises that, having applied its
professional judgement, there may be reasons why Network Rail decides not to
use all sources available to it. A
decision not to use all possible sources does not automatically mean the
changes are therefore unreliable and should not be implemented.” (Para. 23 of ORR
determination of appeal against determination of TTP1064) |
|
D2.2.2
Preliminary Rules - “Sectional
Running Times” |
ttc02, ttc09 |
December 1994 November 1995 |
Rules of the Plan [now Timetable Planning
Rules] have to be properly
consulted on by the parties in accordance with Part D …. The case for making changes to parameters
like Sectional Running Times, and responsibility for associated research,
lies with the party wishing to make the changes; implementation should be through Condition [D2.1]. [now D2.2]
{ttc9} It is not sufficient for Railtrack and
Train Operators simply to agree the data to be used; it must have justifiable foundations; it cannot be moonshine {ttc9}. …. it may also be appropriate for an x%
contingency allowance to be added to provide further robustness provided this
is accepted and agreed by the parties concerned. {ttc2} If it is
demonstrable that the calculated data is not fit for purpose and is inferior
to practical or historical data, then the parties may wish to agree to adopt
the latter. {ttc9} |
|
D2.2
Preliminary Rules - “Sectional
Running Times” |
ttc67 |
October 1998 |
Sectional Running Times (SRTs)
are a major element of the Rules of the Plan [now Timetable Planning Rules]. SRTs for all sections of route and for
each relevant type of rolling stock, should be derived using established
methods and agreed as part of consultation on the Rules of the Plan [now Timetable Planning
Rules] between Railtrack and
those Train Operators affected; the
implementation and use of such agreed rolling stock specific SRTs is
generally a matter of right for Train Operators; {ttc67} Where there is a permissive
dispensation from using the SRTs that would normally apply to that type of
rolling stock, the use of alternative SRTs arising from this dispensation
must be agreed between Railtrack and those Train Operators affected through
the normal timetabling processes including the rights of appeal. {ttc67} In areas of significant route
complexity and rolling stock variety, such as in the immediate vicinity of
Manchester Piccadilly Station, it is open to Railtrack to incorporate into
the Rules of the Plan [now
Timetable Planning Rules] a
practical simplification of SRTs to be applied across groups of trains in
place of the normal rolling stock specific SRTs. However, such an option may be challenged by any Train Operator
to the Timetabling Committee. {ttc67}. |
|
D2.2
Preliminary Rules - “Sectional
Running Times” |
ttc93, ttc109/110 |
January 2000 November 2000 |
If, as a consequence of a Network Change, whether
or not a function of Safety considerations, the SRTs become inappropriate for
the capabilities of the Network, then the SRTs should be amended in
accordance with the prescribed Rules of the Plan [now Timetable Planning
Rules] procedures. Such process of amendment is not to be
undertaken without due regard to the impact upon Firm [Contractual] Rights. {ttc93, ttc109/110} |
|
D2.2 Procedure for revision
of Rules and scheduled Train Slots |
ttc 232, ttc251, ttc265 |
September 2004 January 2005 February 2005 |
Any use made of “Procedure for Altering
Rules of the Route/ Rules of the Plan other than with effect from a Passenger
Change Date” (PARTP) to introduce late possessions has to be the subject
of tests of reasonableness; as to the nature of the proposals, the
circumstances behind the lateness, the available alternatives and the extent
of detriment to Train Operators.
{ttc232} “The operation of Network Code Part D
relies on clear and precise compliance with all the laid down
procedures. This in turn implies the
careful recording of all material decisions”. {ttc251}
All such processes may be subject to error; however the correction of
any error has to be undertaken within the same disciplined processes as the
original error, using the appropriate formal amendment procedure, and
allowing all the concomitant appeal rights.
“Given the disciplined nature of the
Timetabling process, it cannot be acceptable that the formal amendment
procedure can be dispensed with, or that the rights of appeal of a Train
Operator can be curtailed, by the making of a simple assertion, by Network
Rail, that an error has been incorporated into the published CPPP. By the same measure it is not open to a
Train Operator to bring a matter to appeal, beyond a due date, citing as
grounds that its previous failure[to
appeal] was also “an error”.”
{ttc251} “For the avoidance of
doubt, Network Rail is to understand that the Committee does not take kindly
to situations, such as this, where, because past failures of planning and/or
delivery of works have narrowed down the scope for discretion, the potential
outcome of disputes is constrained.” {ttc265 |
|
D2.2
Preliminary Rules Proposal Relationship
to “Efficient Engineering Access (EEA) Strategy” |
TTP271 |
April 2009 |
“18.
The Panel considered the standing of the EEA document, and found that 18.1it
has no contractual force within the context of the individual Track Access
Agreements; however 18.2the
objectives that it is intended to fulfil have significant industry support;
and 18.3by
their nature any such statement of guidelines will inevitably be taken into
account in any objective assessment of the reasonableness of Network Rail
proposals; that said 18.4the RoUs in dispute in this case appear to
conform to the letter of the relevant part of the EEA for the WCML.” [TTP271. Paragraph 18] “23.4 The Panel
… supports the view that the principles set out in an EEA statement will
inform the deliberations prescribed in Condition D2 [“Consultation Process
to establish the Rules”] but will not override, or substitute for
them.” [TTP271. Paragraph 18] |
|
D2.2.3
Preliminary Rules Relationship
to First Working Timetable |
TTP271 |
April 2009 |
“17. The Panel noted and understood the
motives of WCT in seeking to have this matter addressed early, because of its
concerns about the operation of Condition D during the Timetable Finalisation
Period. The Panel considered that 17.1this
dispute relates to the firming up of the Rules of the Route; WCT is entitled to pray the detail of its
Firm Rights in aid of an argument that a specific possession should not be
granted. However, once a final
decision has been reached (including as a consequence of any recourse to the
appeal procedures in Condition D5), any translation of the Firm Rights into
Train Slots is subject to the Rules of the Route [now Engineering Access
Statement]. 17.2
to
the extent that WCT’s concerns related to a fear that …. it might be
prevented from achieving a satisfactory pattern of (diverted) Train Slots,
because of commitments made to other Train Operators, it (the Panel) would
need to bear in mind that [the right] conferred upon Network Rail … to vary
Train Slots “in order to give effect to a decision of the relevant ADRR panel
or the Office of Rail Regulation as provided for in Condition D5”.
[TTP271.
Paragraph 17] |
|
D2.4 and D3.3 |
TTP257 |
January 2009 |
18. “… the Panel noted that if a Train Operator
required the Train Slots concerned to continue beyond the six months limit,
it would need to obtain Firm Rights approved by the Office of Rail
Regulation. In the specific case of
4R60/61, as Network Rail had confirmed that it would not support the inclusion
of these Train Slots in the final submission for FL’s 5th
Supplemental Track Access Agreement, the practical effect would be that 18.1. once the six months period had been
exceeded (i.e. on 8 March 2009) , the Train Slots would no longer be
underpinned by any access rights at all and that, therefore, 18.1.
Network Rail
would be entitled to remove such Train Slots from the 2009 Timetable, on the
authority given in Condition D1.6.2. [now D8.4.1] |
|
D2.4.1 and D4.2.2 Expectation of rights |
TTP834 |
October 2015 |
“With regard to the …. concept of an “expectation of
rights” used both as a potential ingredient of an Access Proposal under
Condition D2.4.1(a) and in relation to allocation of priority under Condition
D4.2.2(d)(iii), I concluded that the onus is not on a genuine and bona
fide Timetable Participant relying in its Access Proposal on an ‘expectation
of rights’ rather than Firm Rights and/or Contingent Rights, by virtue of any
provision of the Network Code or otherwise, at the time of its PDNS to
substantiate positively that it has such an expectation, by pointing to some
particular action taken or stage reached by it already in the regulatory
process for applying for Rights.
Clearly an already submitted Section 22A application to ORR is not a
necessary constituent of an expectation…” “Consequently if [Network Rail] wished to challenge an
obviously serious Timetable Participant’s bona fide expectation of rights, …
the onus would lie with [Network Rail] to provide some positive proof of the
lack of such an expectation, rather than the other way round.” [TTP834, paras. 6.4.2 and 6.4.3] |
|
D2.7.1
New Working Timetable Publication |
TTP1331 &
TTP1376 |
March 2019 |
115. Condition D2.7.1 requires Network Rail to
have made a final decision on the New Working Timetable, which it intends to
implement as the Working Timetable on the Timetable Change Date (subject only
to variations made through the appeal process and Condition D3
processes). The timetable on which
that final decision is made must be published by D-26. 119. By D-26 Network Rail must reach a final
decision, providing certainty for Timetable Participants that there will
thereafter be changes only through appeals and through the limited processes
set out in condition D3. 143. We see no basis under the Network Code for
revising the New Working Timetable once Network Rail has made a final
decision and published the timetable (other than as permitted through
appeals or Condition D3). (Paras. 115, 119 &
143 of ORR determination of appeal against determination of TTP1331 &
1376) |
|
D2.7.2
Appeal |
ttc18, ttc129 ttc161A ttc161C |
October 1996 February 2002 September 2002 October 2002 |
The Committee has emphasised that there
should be rigid compliance with prescribed deadlines and observance of due
process such as prescribed consultation on changes to the Rules of the
Route/Plan [now,
the Rules]. It has also reiterated that
Railtrack should distribute in a timely fashion to each Train Operator the
information that effectively forms the complete set of offers to all
Operators. …. Where a Bidder receives a decision from
Railtrack after the end of the Decision Period then the period of 7 days
permitted for the making of a reference to the Committee applies from the date
of receipt of the decision.
{ttc18/(Det19)} Where parties have engaged in thorough dialogue
with a view to resolving differences, such discussions must not be allowed to
proceed beyond dates laid down for having made any appeal to the Timetabling
Committee, else the Timetable Development process can be compromised, and the
Committee’s discretion in respect of the available options curtailed. {ttc 129} Where Train Operator and Railtrack are
agreed that there is a need for more time to resolve differences in respect
of proposals for change to the Rules of the Route/ Rules of the Plan [the Rules], and such time can be found without any
jeopardy to the Timetable Production Process, the Timetabling Committee may
be asked to agree specific revised timescales and conditions. {ttc161A} Where Railtrack is asserting in respect of
changes to Rules of the Route [Engineering Access Statement] that certain works are necessary, in
order to ensure that there is improvement of Network Quality against
quantified indices of performance, it is reasonable that, in order to answer,
or pre-empt, any challenge from an affected Train Operator, Railtrack should
be required to present an assessment of the extent of the improvement that is
planned to accrue from the disruption.
{ttc161C} |
|
D2.7.2
Appeal |
ttc155 |
October 2002 |
Where, as a necessary
consequence of proposals in respect of changes to the Rules …., a Train
Operator is to experience significant disruption of services, then it is
reasonable for the Train Operator to expect Railtrack to provide, with the
minimum of delay, the following information and assurances
In all of these
considerations, the parties should ensure that questions are posed, and
answers given, to timescales that do not constrain the timetable production
process. In particular it is not
appropriate that discussions are prolonged beyond the making of a reference
to Timetabling Committee, where the result is to delay any hearing to a date
where possible adjudications may be constrained by the need to respect the
timetable production schedule. Both
parties have equal responsibility in ensuring that references are made in
reasonable time. {ttc155} |
|
D2.7.2
Appeal |
TTP1331 &
TTP1376 |
March 2019 |
95. ORR considers that Condition D2.7.2
provides the TTP with jurisdiction to consider any issue which it is necessary
for it to consider to properly determine a Timetable Participant’s appeal
against the New Working Timetable. …… (d) In determining a particular appeal against
the New Working Timetable, it may be necessary for the TTP to reach a
conclusion on points relating to the interpretation or operation of the Network
Code which might be relevant in future timetable preparation or disputes… (e) If it is necessary for the TTP to form
conclusions on such points to determine the appeal, it must do so. Such determinations then form persuasive
authority in any future appeal. …. (h) … in order to consider an appeal, the TTP
must necessarily conclude what is the New Working Timetable published under Condition
D2.7.1 which should be treated as the timetable which is capable of appeal. The TTP cannot make a determination
without having formed a view on the timetable which is the relevant starting
point for the purpose of the appeal process. 96. …despite having jurisdiction to come to
conclusions on matters of contract, points of principle and the production of
the New Working Timetable, … the TTP’s jurisdiction is limited to determining
the appeal against the New Working Timetable. The Network Code does not empower the TTP to make binding
pronouncements on the interpretation or operation of the Network Code, or on
the compliance of Network Rail with its contractual obligations, to the
extent not necessary for it to determine the appeal before it against the New
Working Timetable. (Paras. 95 & 96 of ORR
determination of appeal against determination of TTP1331 & 1376) |
Network Code Section |
Determination
|
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
||
|
D3
Procedure for amendment of Rules and amendment of scheduled Train Slots |
TTP194 |
February 2008 |
“22.1 a failure
by Network Rail to complete preparatory works should not constitute
for Train Operators an “emergency situation” such as contemplated in PARTP
3.1.3 22.2 Network Rail’s entitlement to modify the
Rules of the Plan/ Rules of the Route is limited to the discretions set out
explicitly in PARTP. PARTP as
currently drafted, must be assumed to reflect the wishes of the larger rail
industry; as such it does not confer on Network Rail any entitlement within
the contract structure of Track Access to impose change unilaterally, and
without the prescribed consents of affected Train Operators;” {TTP194} |
||
|
D3
Procedure for amendment of Rules |
TTP194 |
February 2008 |
23. “By way of clarification, and for the avoidance
of doubt, the Panel offers the following guidance to the parties to this
dispute; 23.1. PARTP represents the translation into
practical processes of certain duties and obligations imposed upon the
parties by the Network Code; to the extent that, as in paragraph 3.1.3, it
contemplates some derogation from its general applications, it should be
understood that that derogation only relates to narrowly defined
pre-conditions, and does not imply that PARTP is merely a basis for
negotiation; 23.2. any non-compliance with PARTP is a breach
of a contractual obligation unless preceded by formal amendment of PARTP …. 23.3. it might assist those involved in the
detail planning of engineering works if they were asked to consider that
compliance with PARTP is an obligation that exists to protect the customers
of Train Operators from unwarranted and short term disruption, and that, in
that regard, PARTP is to be treated with the same deference in relation to
the Track Access Contract, as Railway Group Standards are in relation to engineering
matters; |
||
|
D3
Procedure for amendment of Rules |
TTP210 |
May 2008 |
14. “The Panel noted that there is, on the
face of PARTP, no explicit duty laid upon Network Rail that it should state
its reasons for the decisions taken in accordance with PARTP 3.5.2. The Panel was advised that in a
contractual matter of this nature, the so-called Wednesbury reasonableness
test applies, such that a duty to take account of specified considerations,
(in this case the representations of Train Operators, and the Decision Criteria,
as well as the terms of the Provisional Order by ORR … carries with it a duty
to give details of the rationale by which the responsible party (in this case
Network Rail) has discharged that duty.
Given this principle the Panel concluded that, 14.1. any challenge to one of Network Rail’s
decisions from a Train Operator, resulting in a reference to a Timetabling
Panel, must focus substantially upon the merits of that rationale; 14.2. where there is no exposure of that
rationale, there is scope for construing the decision as capricious, and/or
unfounded as well as not complying with the
legal obligation to give reasoned decisions; and therefore 14.3. any determination upholding a decision
where that rationale had not been explicitly exposed, would itself be liable to
criticism as capricious, and/or unfounded, as
well as breaching the Wednesbury principles.” [TTP210] |
||
|
D3.4
Network Rail Variations with a least 12 Weeks Notice |
TTP773 |
April 2015 |
“ …. the elements of information which Network Rail should provide to
a Timetable Participant in order to achieve compliance with Network Code
Condition D3.4.10(b) are: (a) available capacity through the restricted area and over
alternative routes; (b) proposed
allocation to individual operators normally operating through the restricted
area or on diversionary routes; (c) impact
of (a) and (b) on journey times, rolling stock required (for, e.g.
performance or passenger capacity), service groups, demand for services
catered for where possible and, in the case of a multi-Route operator, impact
on other services across the Network; (d) impact
on the commercial and contractual obligations of a Timetable Participant. These elements are indicative and not
prescriptive. The approach of Network
Rail must remain one of taking into account the provisions of, in particular,
Conditions D2.5 and D4.6.” [TTP773] |
||
D4 DECISIONS BY NETWORK RAIL
Network Code Section |
Determination
|
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
D4.2.2
Priorities in considering “Spot Bids” |
TTP257 |
January 2009 |
18 “In this case, the Panel finds that 18.1Network
Rail is expected, even in its treatment of Spot Bids to maximise use of
Network capacity. This includes
flexing of Spot Bids to maximise remaining “white space”” (National Rules of the Plan …) [now Timetable Planning
Rules]; 18.2line capacity on the Felixstowe Branch,
and Loading Capacity in the Port of Felixstowe are both known to be constraints
on the number of Train Services that can be operated, requiring carefully
considered judgements as to how increases are achieved; 18.3……
In the situation where a number of Freight Train Operators may be
responding to the same traffic invitation to tender Network Rail may
reasonably engage in appropriate, and even-handed, dialogue to establish the
feasibility of alternative proposals, and, where practicable, to protect
itself from allocating resources in ways that may potentially frustrate a
third party contracting with the Train Operator of its preference. …….; {TTP257} |
|
D4.2.2 Exercise
of Rights” |
TTP257 |
January 2009 |
“The Panel therefore determined, that, in respect of each of
the issues raised by the parties, as follows: Network Rail is not entitled, or empowered, of its own authority, to remove
FL’s right to use Train Slots 4R60/61 during the remaining term of the first
6 months for which Network Rail made
an Offer on 26th August 2008.
FL’s rights to access these Train Slots must, in the absence of the
conclusion of an appropriate Supplemental Track Access Agreement, lapse when
the rights conferred by the Spot Bidding process lapse. The Panel interprets the date of that
lapsing to be 6 months after the date at which the Train Slots were first
incorporated into the Working Timetable, (i.e. 6 months after Monday 8th
September 2008)”. (TTP257: Final Determination Bullet 1) |
|
D4.2.2
Exercise of Rights” |
TTP257 |
January 2009 |
19 “That
said, the Panel is being asked by both GBRf and Network Rail 19.1to accept that a situation has been
created whereby a Train Operator (GBRf) that has secured, through an
agreement with a third party (FDRC), traffic new to rail, cannot operate that
traffic until the two Train Slots concerned can be flexed or removed from the
WTT to make room for two others ,
and 19.2to intervene and issue directions that
such a change can be effected. 20 In effect therefore in making this reference
to the Panel, both GBRf and Network Rail are seeking a determination on the
basis that 20.1Network Rail acknowledges that, in making
the Offer to FL for the Train Slots 4R60/61, it has acted in a way that it
might not have acted, had, at the time of making that Offer, it been in
fuller possession of the facts presented to the Panel; 20.2the contractual checks and balances within
Part D of the Network Code prevent Network Rail revoking or modifying any
Offers, unless all parties affected are in agreement, or unless an external
authorised body (in this case this Panel) issues the necessary determination.”
[TTP257] |
|
D4.2.2 Modification
or rejection of “Spot
bids” |
TTP257 |
January 2009 |
“17. The Panel took cognisance of the fact
that FL was currently operating Train Slots 4R60/61 as Spot Bid
Services. Network Rail grants the
right to operate such Spot Bid Services by virtue of the Offer that it makes
in response to a Spot Bid …….
However, under the terms of paragraph 2.5 of Schedule 5 to FL’s Track
Access Contract the right to operate Spot Bid Services is time constrained (“The
duration of any Spot Bid Services shall not exceed six months”). This limit applies even if the Spot Bid
in question has been described as a “rolling Spot Bid”; this is a “custom and
usage" term that has no defined contractual status. ” [TTP257] |
|
D4.2.2 Validity of an Access proposal |
TTP834 |
October 2015 |
ATW’s “[The TOC’s]
Access Proposal for the … December 2015 Timetable was a valid bid for those
Train Slots. It had already been
validated as TPR compliant by being accepted into the May 2015 Timetable and
there were no other objective technical reasons for its rejection from the
December 2015 Timetable. The
decisions to be made by Network Rail – including any of NR’s internal organs
– in discharging its contractual and regulatory obligations within the rail
industry are required to be objective, in accordance with the relevant
contracts and regulations, not subjective …” “… under the Network Code as
presently constituted and incorporated in Timetable Participants’ Track
Access Contracts, NR is not entitled to reject an otherwise contractually
compliant Access Proposal other than in accordance with the relevant
provisions of the Network Code for the time being in force.” [TTP834 paras. 6.4.1 and 8.1.5] |
|
D4.2.2 Accommodation of an Access proposal |
TTP834 |
October 2015 |
“With regard to [Network Rail’s] published processes and
criteria for “selling” Rights, including its SOAR Panel, I drew … attention
that the Network Code in Condition D4.2.2 specifically implied an overriding
principle that it did not have the right to refuse an otherwise
compliant Access Proposal; this said “Network Rail shall endeavour wherever
possible to comply with all Access Proposals submitted to it” etc. … I concluded that there is nowhere whence
it can derive any contractual entitlement not to sell an access right in
cases where there is specific technical capacity (in the sense of TPR
compliance) and no operational conflict.” “The published terms of reference of the SOAR Panel … are
primarily “To authorise sales of track… access rights… including any decision
not to sell rights when sought through the Section 17/22A process”, and to
that end to check or consider a wide range of issues and matters, including
consistency with “policy and any regulatory considerations” and “performance
and deliverability issues”. However
they nowhere mention contractual compliance with operators’ track access
agreements incorporating the Network Code …
A decision by [Network Rail] to reject a train operator’s bid for
Train Slots which are available and TPR compliant, on the basis solely of a
decision by the SOAR Panel (according to its terms of reference) that it does
not wish to “sell” the relevant rights, is likely to constitute a breach by
[Network Rail] of that train operator’s track access contract.” In their present form, the Part D processes do not confer
a discretion on [Network Rail] determine whether it wishes to “sell” Rights
at all, whether on general grounds of caution as to potential network
congestion, service recovery or industry reputation, or in any way otherwise
than on the basis of compliance with the TPR. It is the function of the TPR to denominate the configuration
and technical characteristics of services, and of their relationship with
each other, that can safely and productively be accommodated within the known
existing capacity and other parameters of the Network.” “The SOAR Panel is an appropriate internal Network Rail
process to assess its views on the granting of access rights in the wider
context of its stewardship of the network as a whole, but it cannot override
the contractual obligations to which [Network Rail] is subject for the time
being.” [TTP834, paras. 6.4.4, 6.5, 7.3,
7.5] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
D4.4.1Flexing Right |
ttc12 ttc93 |
May 1996 January 2000 |
[In its earliest years of operation the Committee was asked to determine in circumstances where Access Parties had consented, without benefit of formal amendments to contracts, to flexing of rights beyond the scope of their contractual rights. The following two determinations served to give the parties notice of the potential hazards of such behaviour] In giving general directions the Committee
{ttc12} did include a proviso that "where services are to be flexed,
the amount of flex should not exceed any flex that would have been allowed by
the relevant Track Access Agreement ... unless the Train Operator affected
has otherwise duly agreed the flex". The relationship between successive Timetables
becomes an issue in the situation where a Train Operator may have been too
acquiescent in allowing Railtrack to exercise flexing rights; thus in determination ttc93: “In
respect of trains where there had been previous tacit acceptance of a degree
of flex exceeding that to which Railtrack is entitled, then this could
reasonably be interpreted as a preparedness on the part of the Train Operator
to accept some amendment to the Access Agreement. However, Railtrack is not entitled to presume that such
acceptance in one Timetable would also apply in a subsequent Timetable; nor is it relieved of the responsibility,
…. to consult properly in each and
every instance where it has exercised a Flexing Right.” {ttc93} |
D4.4.1Flexing Right |
ttc252 |
February 2005 |
In circumstances where
works require Network Rail to make a choice between several Train Operators
as to which should bear the greater share of detriment from the proposal, a
Committee/Panel, will look to see practical evidence of constructive dialogue
with all the affected parties.
{ttc252] |
|
D4.1.1 Flexing Right |
TTP324 |
March 2010 |
“36 The Panel considers that Network Rail has not, in
this instance, and in relation to its advocacy of the particular form of 2TTR
[a Two Track Railway Timetable], properly understood the function of the
Decision Criteria, or the limits of Flexing Rights. Thus … 36.2 a Flexing Right is not
available other than in the circumstances specifically contemplated in the
definition of the term, namely 36.1.1.
in
preparation of the First Working Timetable [now New Working Timetable]or in
responding to a Spot Bid [now Train Operator Variation Request], in which
case limited to options that are “consistent with the Firm Rights (if any)
of the Bidder” [now evaluated Firm Rights of the relevant Timetable
Participant]; or 36.1.2.
where
there may be cause to vary an accepted offer, to comply with directions from
an Appeal body …., to accommodate certain kinds of special passenger service,
or 36.1.3. to accommodate a
Restriction of Use included in the Rules of the Route [now Engineering Access
Statement], where a Train Operator has failed to bid [appropriately] .” [TTP324] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
|
|
|
|
|
There are very
few Timetabling Dispute references which do not require some consideration of
the of the Decision Criteria. The
following aspects of Determinations are included because they relate to cases
where there has been qualification of the particular significance of a
specific aspect of the Criteria. |
|
General
Principle |
TTP324 |
March 2010 |
“The Panel considers that
Network Rail has not, in this instance, and in relation to its advocacy of
the particular form of 2TTR [a Two Track Railway Timetable], properly
understood the function of the Decision Criteria, or the limits of Flexing
Rights. Thus 36.2.
the Decision Criteria only come into any
force in those circumstances explicitly contemplated by the Network Code,
where there is the potential need for Network Rail to exercise its discretion
in relation to possible conflicts of priorities, for example 36.2.1.
as
between the Firm Rights of two or more Train Operators, ….; or 36.2.2.
as between the Firm Rights of any Train
Operator and those of Network Rail, ….. In either case, recourse
is to be had to the Decision Criteria as providing the benchmark for deciding
which of several permissible courses of action is the better justified. The Decision Criteria cannot be prayed in
aid as a reason for initiating a new policy, or for circumventing provisions
within the Track Access Contract.” [TTP324] |
|
General
Principle |
TTP376/377 |
September 2010 |
“8.5.1 Various provisions of Network Code Part D require Network Rail
to have 'due regard' to the DC. This
language by itself is not of much assistance in determining how the DC are to
be evaluated and applied in any particular instance, since 'due' is a
relative term that only has any meaning in relation to a suitable given benchmark. Up till now neither the Network Code nor
precedent TTP determinations on the point have offered such a benchmark. 8.5.2 … I ..[am].. assisted by …….. the new Decision Criteria
section of the Network Code effective from 1 October 2010, contained in new Condition
D4.6. This reflects a welcome change
of language in the whole of the new Part D, whereby NR is now required simply
to 'apply' the DC in appropriate circumstances, rather than have 'due regard'
to them. In evaluating the former
version of the DC for the purposes of this Determination, I propose to
interpret 'have due regard' accordingly. 8.5.3 Many of the Decision Criteria, in both the old and new
versions, are in direct conflict with each other, in that they cannot all be
satisfied at the same time. Some
Criteria however conflict not so much with each other but internally, that
is, in the application of the same Criterion to different parties and in
differing circumstances. Any system
adopted to rationalise their application must at least accommodate both these
distinct kinds of conflict. 8.5.4 For the first time the new Condition D4.6 goes some way
towards recognising and accommodating the fact that there are two different
ways of applying the DC. First, NR "must consider which of the Decision
Criteria are relevant to the particular circumstances and apply those it has
identified as relevant so as to reach a decision which is fair and not unduly
discriminatory as between any individual affected Timetable Participants or
as between any individual affected Timetable Participants and Network
Rail." Secondly, "Where, in light of the particular
circumstances, Network Rail considers that application of two or more of the
relevant Decision Criteria will lead to a conflicting result then it must
decide which is or are the most important Decision Criteria in the
circumstances and when applying it or them, do so with appropriate weight”. 8.5.5 At least two weighting systems are therefore possible:
weighting the relevance and degree of satisfaction of each individual
Criterion in a scale relative to the others, in its application to all
potentially affected parties in the particular set of facts under
consideration; or weighting the extent to which the application of each
relevant Criterion favours the position taken by one dispute party or
another. ……. 8.5.6 … The exercise thus
becomes entirely one of assessing and balancing the practical merits of the
parties' various competing interests in relation to the application of the
single relevant Criterion, rather than comparing the merits of competing
Criteria.” [TTP376/377] |
|
General
Principle |
TTP337/359/382 |
January 2011 |
“…EAA is, effectively, a set of
principles developed through discussion with the industry and DfT. These principles go to the efficiency of
Network Rail’s engineering work, including the optimisation of possessions,
with the aim of enabling Network Rail to maintain and renew its network
infrastructure more efficiently, while minimising major disruption and
contributing to offering operators and end users an improved availability of
the network. …. The principles
embodied in EEA are not manifested in a particular contractual agreement.” “Because EEA is a set of
principles, rather than a set of ordered rules, it is not possible always to
fulfil each and every principle.
Indeed, at times principles which are consistent in theory may emerge
as conflicting in a particular practical situation.” “There is no basis for elevating
EEA above the other factors that Network Rail, and the Panel, balanced (there
is no specific reference to it within the Decision Criteria). Indeed, the nature of EEA means that there
is no one EEA principle which could be applied as the deciding factor.”
[ORR determination of appeal against TTP337/359/382 determination,
paras. 59 - 62 |
|
General
Principle |
TTP337/359/382 |
January 2011 |
“The Decision Criteria …… do not
specifically include a provision that Network Rail must comply with its
Licence obligations, although clearly criterion (a) (“sharing the capacity […] of the Network […] in the most efficient and economical manner
in all the interests of all users of railway services having regard, in
particular, to […the
proper maintenance, improvement and enlargement of the Network”)
requires similar considerations to those covered by the General Duty. ORR underlines that it was the Panel’s
role to determine whether Network Rail correctly applied the Decision
Criteria, not to determine whether Network Rail was in breach of its Licence
Conditions.” [ORR determination of appeal against TTP337/359/382
determination, para. 70] |
|
General
Principle |
TTP1064 |
April 2017 |
“… strategic initiatives such as
TRIP, will not normally engage the individual Considerations … in the
Decision Criteria. …the Decision Criteria should be applied to each change
made by Network Rail to TPRs. … it is not sufficient for a party to make
generalised claims about a failure of process without substantiaiting that
claim with the specific examples where it alleges Network Rail has failed to
meet its obligations.” (Paras. 27&28 of ORR
determination of appeal against
determination of TTP1064) |
|
Note;
with effect from the November 2006 issue of Part D, the decision criteria (b)
to (n) were re-numbered (c) to (o); further adjustments have taken place with
effect from October 2010 and subsequently.
The following entries are ordered by reference to the current
lettering, but the textual references have not been altered and refer to the
paragraphs applicable at the time of the determination of the case. |
|||
|
D4.6.1 “share
capacity” |
ttc63 |
October 1998 |
When Railtrack
sought to justify some of its decisions by reference to Access Condition
D4(a), and the passenger loadings on conflicting trains, the Committee
considered that such data should inform discussions between Railtrack and
Train Operators, but should not
necessarily be an absolute determinant of priorities; in other words passenger loadings are a
valid component “to be weighed” as part of the assessment of priorities. {ttc63} |
|
D4.6.1 “share
capacity” |
TTP337/359/382 |
January 2011 |
“The Panel identified that, having
considered the evidence on passenger numbers before it and the nature of the
alternative disruptions proposed (i.e. bussing of passengers or
alternative/longer train journeys), the public order concerns …… should be
included in the balancing exercise ORR does not accept
… argument that the Panel’s conclusion should be rejected ….” [ORR determination of appeal against TTP337/359/382
determination, paras. 75 & 76] |
|
D4.6.1 “share
capacity” |
TTP376/377 |
September 2011 |
“8.5.7 In trying to achieve … balance of competing interests, in the
absence of any other contractually explicit yardstick for determining what
lies at the heart of DC D6(a) – "sharing the capacity….of the Network…
in the most efficient and economical manner in the interests of all users of
railway services…" – I concluded …. that the most sensible metric
was that of benefit to the ultimate consumer, the passenger or freight
customer, in the sense of looking for the solution that demonstrably provides
the greatest good for the greatest number.” [TTP376/377] |
|
D4.6.2(a)
- formerly “necessary work on … the Network” |
ttc182, ttc189, ttc212, ttc256 NV50, NV55 |
August ’03 Oct ‘03 March ’04 March ’05 Nov ’03 Feb ’04 |
The necessity to
find possession time for the carrying out of works made essential either by
the deteriorating condition of track, or of the need to fulfil contractual
obligations in respect of improvements to the Network, is not a sufficient
argument for curtailing the duly asserted rights of Train Operators. The requirement remains for Network Rail
to make the case, whether under proposals for Rules of the Route, Major
Project notice, or Network Change, and to enter into such dialogue as the
relevant Track Access Condition requires.
(ttc182}, {ttc189}, {ttc212}, {ttc256} {NV50}, {NV55}. |
|
D4.6.2(a)
- formerly “necessary work on … the Network” |
ttc189 |
October 2003 |
“Network Rail should make arrangements to
ensure that it puts in place monitoring arrangements capable of demonstrating
the effectiveness and efficiency of the use made of the possessions enabled
by the introduction of “2 Track Railway timetable”. {ttc189} |
|
D4.6.2(a)
- formerly “necessary work on … the Network” |
ttc256 |
March 2005 |
Where Network Rail’s decision is
challenged then the requirement for a Committee is… “to weigh up, by
reference to the Decision Criteria …., the relative standings of ·
the Firm
Rights of the Train Operator to operate trains at specified times; ·
the scale
of any detriment to the Train Operator’s business (including the ability to
meet contractual obligations to outside parties) resulting from the taking of
the proposed possessions; ·
the
extent to which the Train Operator would be able to provide alternative
services, either using diversionary routes or by road transport; ·
the
rights of Network Rail to take the possessions, in effect to cause them to be
included within the “applicable Rules of the Route” ; ·
the extent to which the need for the
possessions can be substantiated by reference to such factors as o
the need to do works (whether renewals or
maintenance); o
the implications of doing the works at the
times specified, or over the durations specified; and o
the engineering choices made by Network
Rail. ·
the impact on the business of other
operators on the route concerned of the proposed duration and dating of the
possessions and any change to these sought by the appellant.” {ttc256} |
|
D4.6.2(f) – formerly “comply with any contract” |
ttc87 |
December 1999 |
“In respect of … “enabling a Bidder to comply with any
contract to which it is party (including any contracts with their
customers…)…in each case to the extent that Railtrack is aware or has been informed of such contracts”,
the Committee was of the view that ·
EWS’ access rights in relation to 1C00 and 1F02 (the
two Down Mail Trains) were formulated to support EWS’ contractual obligations
to the Royal Mail, and were known in all relevant respects to Railtrack. ·
“any
contract to which it is party” includes, for the Train Operator,
the Firm Contractual Rights within the Access Agreement itself. |
|
D4.6.2(f) – formerly “comply with any contract” |
TTP95A |
September 2006 |
7.
“The
Panel considered the points made by FGW in respect of the commitments that it
carried under its Franchise Agreement in respect of the frequency of service
between Reading and Gatwick. The
Panel noted FGW’s contention that Decision Criterion Network Code D6(b)
acknowledged “the necessity or desirability of…” “..enabling a Bidder to
comply with any contract to which it is party (including…the franchise
agreement to which it is a party)…”.
The Panel found that this obligation to a third party does not, of
itself, 7.1.
confer
upon the Bidder any rights of Access that are not already incorporated into a
Track Access Contract that has been approved by the Office of Rail
Regulation; 7.2.
require
Network Rail to act in any way that might be to the detriment of the
performance enjoyed by other Train Operators, particularly those with
approved and documented Firm Rights, and 7.3. provide any means of getting round, or
over, physical limitations within the track layout that preclude the plotting
of an appropriate Train Slot.” {TTP95A} |
|
D4.6.2(f) – formerly “comply with any contract” |
TTP242 |
October 2008 |
This
dispute turned, in part, on a mismatch between the Maximum Journey Times
specified in Schedule 5 of the Train Operator’s Track Access Agreement, and
the details in the Service Level Commitment (“SLC”) documented in the
relevant Franchise Agreement. The
Panel was therefore asked to find that, if there was a discrepancy between
the Train Slots offered and the Train Operator’s SLC this would constitute a
breach of Decision Criterion D6(c), with the implication that the SLC should
prevail over all other Decision Criteria, whence the application from the
Train Operator that the Panel should “Determine whether by disregarding the stated requirements
of the funder of the Railway (both services and infrastructure) in Scotland,
Network Rail can be seen to be adhering to the decision criteria.” The Panel
summarised it’s consideration of this point in the following terms 19.1. “The Panel notes that this comment is made
in relation to the terms of the SLC on FSR, and the implication that Network
Rail’s exercise of discretions has not adequately taken account of the
SLC. The Panel finds that 19.1.1. its [i.e the Panel’s] locus is set in
relation to the terms of the Track Access Contract, and that, whilst it must
take account of the existence of external factors that have a bearing upon
the operation of the Track Access Contract, it cannot find that an external
factor should weigh with its determination to the detriment of due
consideration of factors within the Track Access Contract and the Network
Code. In particular, where the SLC
and the Track Access Contract are not uniform in their impact, the Panel must
find on the basis of the terms of the Track Access Contract; 19.1.2. the SLC falls to be considered under
Condition D6(c): as such it has to be
considered by Network Rail along with each of the other Decision Criteria
….[emphasis added]. The
Panel is satisfied that Network Rail in its determination of the respective
weight to be given to the different Decision Criteria has not behaved either
capriciously, or in ignorance of the provisions of the SLC, and therefore
should not be censured on this ground; 19.1.3. to the extent that FSR is disadvantaged by
a difference in the force of the terms of its Track Access Contract and the
SLC, FSR has both the scope and the opportunity to seek amendments in one or
both to achieve any necessary alignment.” (TTP242
para 19) This
determination was appealed to ORR by the Train Operator. In a letter of 11 December 2008, ORR
advised the parties that “ORR has now concluded that it should not hear the appeal, and that
the decision of the TTP should stand”. In paragraphs 17 to 21 of that
letter ORR addressed the above point, and concluded that one of the reasons
that an appeal would have little prospect of success is because “The Grounds contained in
FSR’s Notice of Appeal do not have any real prospect of demonstrating that
the TTP’s decision on the issue was wrong, since they are based primarily on an alleged failure to
consider material which, by FSR’s own admission, is not currently encompassed
by the Decision Criteria” (para 17). “…in
exercising a flexing right Network Rail is required to have “due
regard to the Decision Criteria”. In ORR’s view, an obligation to have “due
regard” requires Network Rail to consider each of the Decision Criteria
and to give them appropriate weight in the circumstances of the particular
case”(para 21). |
|
D4.6.2(f) – formerly “comply with any contract” |
TTP337/359/382 |
January 2011 |
“ORR accepts …. argument that neither operator should
be able to claim that its commitments are greater than those of the
others. ….. Therefore, ORR determines that the Panel was correct not to
consider the SLCs, or other contractual obligations of the parties, in any
detail.” [ORR determination of appeal
against TTP337/359/382 determination, para. 63] |
|
D4.6.2(f) - commercial interests |
TTP1064 |
April 2017 |
“The TTP noted … that the commercial interests of any
Timetable Participant and Network Rail are included in the Considerations,
all of which are given equal status in Condition D4.6.2. The TTP went on to note that : ‘When applying the Considerations in any
particular case, D4.6.3 requires Network Rail to identify those which it
regards as relevant and apply those to achieve [a] result which is fair and not unduly discriminatory. Only if two or more of the Considerations
conflict will Network Rail then weigh the Considerations to arrive at an
appropriate decision.’ Taking the above into account, the TTP found that ‘… an amendment to a TPR which is
operationally necessary cannot be “trumped” by any commercial interest … once
its weighting has been properly applied any consequential commercial issues,
such as a failure to achieve SLCs under a Franchise Agreement, are not seen
as a matter falling to be dealt with under Part D of the Network Code …’ It is clear that the TTP understood that
commercial interests of a party were a relevant factor when applying the
Decision Criteria but correctly held that it was just one of a number of
factors set out in Condition D4.6.2 that Network Rail had to take into
account. It does not therefore follow
that the application of the Decision Criteria is incorrect simply because the
commercial interests of a party has not been the overriding consideration in
whether to implement a specific change.” (Paras. 34&35 of ORR
determination of appeal against
determination of TTP1064) |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
D4.7.1(b)(ii) |
ADP10 |
August 2005 |
18.1“where…
an Appeal Body has not upheld FL’s or FLHH’s reasoned objection, the proposed
Restriction of Use to carry out renewals can become part of the “applicable
Rules of the Route” [now Engineering Access Statement], and 18.1.1 FL’s & FLHH’s Firm Rights become subject to any proposed
Restrictions of Use that are incorporated within the “applicable Rules
….”; and 18.1.2 FL
or FLHH’s entitlement to compensation in such cases is through the terms of
…their respective Track Access Agreements, and otherwise the parties are
required to meet their respective costs where they lie.” |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
General
Principle |
TTP1064 ORR decision of
12 July 2017 |
April 2017 |
“While it is clearly for each party to a dispute
to determine how best to put its case to protect its legal and commercial rights,
it is self-evident that extensive use of external advisors increases the
costs of a dispute. It is also worth
bearing in mind that, if one party makes extensive use of such advisors, the
other party may feel it has to do so as well. … the dispute resolution
mechanism contained in the ADR Rules and Part M of the Network Code is not
intended to operate like commercial litigation and neither the TTP nor ORR is
set up to deal with disputes argued in this way. The processes are intended to lead to a legally robust
conclusion without being legalistic.” (Para. 59 of ORR
determination of appeal against determination
of TTP1064) |
|
General
Principle |
TTP337/359/382 ORR decision
of 18 March 2011 |
January 2011 |
In considering an appeal against the Timetabling
Panel determination, ORR addressed the matter of submissions to Panel
hearings whereby redacted material is provided to the appointed Panel members
but full data is supplied only to the Hearing Chair. A TOC involved had put forward argument
that “the Panel members, as a result of not being provided with the specific
passenger information, were only able to make “a subjective assessment of the dispute going forward” .“ ORR considered “that, generally speaking, best practice is to provide all members
of the Panel with the same information for the purposes of their
decision-making”. [ORR’s
appeal determination of TTP337/359/382, paras. 72-77] |
|
D5.1.1 Grounds for making an appeal |
TTP96 ORR decision
of 24 October 2006 |
October 2006 |
TTP96,
which related to the flexing, by Network Rail of Train Slots for GNER in
order to accommodate Train Slots for GCR, never came to actual hearing, but
required first the Disputes Chairman, and then the ORR, to interpret the
rights of GCR to participate in the proposed hearing, and also, in the event
of need, to have a right of appeal.
In its judgement of 24 October (q.v.), the ORR found that the
definition of Bidder [now “Timetable Participant”] , in Network Code Part D,
potentially embraces more individuals or parties than did the definition of
Industry Party then contained in the Access Dispute Resolution Rules. This, combined with the wording then in
D5.1.1, “if any Bidder is
dissatisfied with any decision of Network Rail” provided a broad entitlement to
gain the benefit of a determination by a Panel under the Access Dispute
Resolution Rules. In particular, it
would have given GCR, as Bidder, but not yet a holder of Access Rights, the rights both to bring an appeal in
relation to the treatment of its own bids, but also to appear as an
interested party, with the same standing as any other interested party in a
dispute brought by any other Bidder. {Decision on Grand
Central Railway’s Notice of Appeal against the decision of the Timetabling
Panel made on 4 October 2006} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
D5.2.1 |
TTP96 ORR decision
of 24 October 2006 |
October 2006 |
Whilst the wording of 5.2.1 has been amended
since this determination , the principle contained in this ORR determination
is believed to remain valid:- As with
D5.1.1, the wording of D5.2 If
Network Rail or any Bidder is dissatisfied with any decision of the relevant
ADRR panel in relation to any matter referred to it under Condition D5.1” the
right to take a matter to the Office of Rail Regulation is open to the wider
range of parties or persons encompassed within the definition of Bidder,
rather tha a narrower definition of Industry party. {Decision on Grand Central Railway’s Notice
of Appeal against the decision of the Timetabling Panel made on 4 October
2006} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
General Principle |
TTP376/377 |
September 2010 |
“8.1 ………
I identified certain general issues of law (including matters of contractual
interpretation) which I considered to be raised by the dispute ……. [It is] right to explain my conclusions
on these issues …… since they will inform the extent of what I can determine
in relation to the specific practical issues in dispute. …[It] is appropriate to raise these issues
for consideration in some detail …. both to provide possible clarification to
inform future Panels constituted under the new ADRR regime, and also being
mindful of the ADRR Rule A5 requirement ….. that the Panel must "reach
its determination on the basis of the legal entitlements of the Dispute
Parties" etc. 8.2 The
first such issue concerns the power of a body such as an ADC tribunal or
panel to reopen the exercise of a general discretion by a body whose decision
is appealed, here NR. Under the
various provisions of NC Part D, NR (for these purposes to be considered in
its role as a quasi public body holding a statutory monopoly) is required in
effect to exercise a discretion in balancing a range of competing
interests. These interests include
(but not exhaustively) those spelt out by the DC, to which Network Rail is
specifically mandated to have 'due regard'. 8.2.1 The
question that arises is whether, in reviewing the result of the exercise of
that discretion at the suite of a dissatisfied party, the Panel is legally
empowered to revisit the whole exercise from scratch and substitute its own view
as to the result of how the Panel itself would have exercised the discretion
in the same circumstances. Or,
whether the Panel is empowered (or constrained) to determine something less
than a wholesale reopening of the matter, by reference to the Panel's view of
the degree of 'reasonableness' shown by NR.
The alternatives could range from substituting a distinct result
proposed as being more reasonable by one (or more) of the other dispute
parties; to simply upholding (as being at least sufficiently reasonable) or
rejecting only the specific result proposed by NR; to leaving Network Rail's
result alone unless it is found to have been so unreasonable as to have been
perverse (sometimes referred to as the 'Wednesbury' test of reasonableness,
after a case of that name which was referred to in reference TTP210). 8.2.2 This
issue is governed largely by the interpretation of the relevant provisions of
Part D which introduce the DC and refer matters arising to ADRR for
'determination'. However it is also
governed by general principles of law applicable to the exercise of a
discretion by a body carrying out a public function, such as NR. The issue has been implicitly relevant to
many previous TTP decisions, and in some cases has been expressly considered. 8.2.3 The
most recent revision of NC Part D, effective as of 1 October 2010 (i.e. two
days after this Hearing) is of help here.
The new Condition D5.3.1(c) is clearer and more direct than its
previous equivalent old Condition 5.3.1(c) …., in providing explicitly that
[the Panel] "may substitute an alternative decision in place of a
challenged decision of Network Rail", provided that such power
"shall only be exercised in exceptional circumstances". 8.2.4 Under
the former version my conclusion in any event would have been that, in order
to have a meaningful appellate role, the Panel must at least have
jurisdiction to consider more than merely whether NR has been totally
perverse or not, but I was uncertain to what extent the Panel had power to go
any further than that. However, in
the light of the new Part D provision, even with its unfortunately vague
proviso, I believe it is clear that the Panel has power to reopen the
exercise of NR's discretion from the beginning. 8.2.5 New
Condition D5.3.1(b) also gives the Panel a more broadly expressed power than
previously, simply to uphold NR's decision: "it may direct that a
challenged decision of Network Rail shall stand". In the light of the general broadening of
Condition 5.3 in the new version, …. it is reasonable to interpret this as
permitting just as extensive a revisiting of NR's decision where the eventual
determination is to uphold the decision, as where it substitutes an
alternative decision by the Panel. In
other words ….. it permits an upholding of NR's decision even where NR's
reasoning has been imperfect, because the Panel can if necessary substitute
its own reasoning, even if the decision remains the same.” [TTP376/377] |
|
General Principle |
TTP376/377 |
September 2010 |
“8.3.1 Both … [TOCs] … ask
expressly for particular remedies in the shape of, in effect, the Panel
itself directly making (or injuncting Network Rail to make) certain
identified changes to the latest RotR [now Engineering
Access Statement] to have been published. The changes sought include substituting a
series of specific possessions which are different in duration or timing, or
both, from those determined by Network Rail as the outcome of its planning
process. Some are possessions that
have already been initiated, considered and rejected by Network Rail as
ineffective for their intended purpose; others are possessions first proposed
by the respective claimant, whether now or previously in the course of the
timetabling process, as its preferred alternative to those initiated by
Network Rail. 8.3.2 The question that
arises here is whether, or the extent to which, the Panel has the power to
make such very specific awards. This
would amount to the Panel in effect directing Network Rail as to how to plan
for and manage its engineering works; I have to question the extent to which
it is appropriate for any Panel to do so by substituting either its own view
or that of either or both of the claimants, as to what is necessary or
sufficient to achieve a desired engineering outcome for the benefit of the
network. 8.3.3
This
issue also is clarified to some extent by the new October 2010 version of NC
Condition D5.3.1(a), which now gives a rather more general power than
previously to the Panel to "give
general directions to Network Rail specifying the result to be achieved but
not the means by which it shall be achieved". (The previous equivalent, current for the
purposes of this dispute, empowered the Panel to " direct Network Rail to comply with directions which specify
the result" etc) Nevertheless, I think it is
appropriate to point out that there must still be some practical limits to
what the Panel can specifically require NR to do or refrain from doing.” [TTP376/377] |
|
General Principle |
TTP376/377 |
September 2010 |
“8.3.4 [TOC] …. specifically
seeks a ruling binding on "future possessions of 25 hours (or
comparable) duration affecting [TOC’s] services on the WCML", requiring
that they be planned on Sundays only, "including
but not limited to those in Period E of 2011 that [TOC] has separately
referred to ADC ……". No
limit in scope or time appears to be placed on this objective. Even without any detailed analysis of all
the possibilities that this admits, it must be the case that no Panel could
in any event grant such an open-ended request, even if it were to try to
include practical limits to it. To do
so would be to purport to tie NR's hands in operating the RotR [now
Engineering Access Statement] process for ever after, let
alone to prejudge the outcome of a separate dispute which has apparently
already been referred for determination.”
[TTP376/377] |
|
General Principle |
TTP1064 ORR decision of 12 July 2017 |
April 2017 |
“While we consider that the
wording of limbs (a) to (c) of Condition D5.3.1 could in future be clarified,
it seems clear to us that the power to give a general direction under
Condition D5.3.1(a) encompasses the power to quash a decision by Network
Rail.” (Para. 61 of ORR
determination of appeal against determination of TTP1064) |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”) |
|
|
|
|
With effect
from the yellow pages first issued in relation to the Timetable commencing
December 2005, the concept of the Major Project was abandoned, and superseded
by the Possessions Strategy Notice.
The great majority of the words previously used to define procedures
and rights in respect of Major Projects were been rolled forward into the new
Yellow Pages and subsequent iterations.
All determinations previously handed down in respect of the
interpretation of the provisions for Major Projects could therefore
potentially be argued as applying to a Possessions Strategy Notice. |
|
General
Principle |
NV9,NV13, NV17, NV18, NV26-31 NV37,38, 40,41,43 and 46, NV53 |
September 2001 January 2001 September 2001 November 2002 December 2003 |
The Major Project Notice procedure …. is
structured to allow a project that requires major adjustments to Rules of the
Route [now
Engineering Access Statement]
extending beyond the scope of a single timetable, to reach agreement in a way
that then cannot be overturned by the operation of regular Rules … review
processes …. In most circumstances, a Major Project
notice is used, at Network Rail’s discretion, to bring together a range of
possessions etc associated with a complex task. The Committee has, however, been asked to determine whether
Network Rail could be obliged to designate a given programme of works as a
Major Project. The Committee
determined that, if the works fulfilled the definition of a Major Project,
then there was an obligation that it be designated and handled as such. The key criteria are ·
“the
activity relates to “engineering, maintenance or renewal”; ·
it
requires “a possession or series of possessions of one or more sections of
track”; ·
that
requirement lasts “ a period of more than one year”; and the activity relates to a defined
“project” {NV53} |
|
Definition - “Major Project” |
NV53 |
December 2003 |
The concept of
“Major Project” was dropped from Part D with the advent of the Yellow pages,
and the introduction of the “Possessions Strategy Notice” procedure. However, the concept of the Major Project
is still referred to in Schedule 4 of some Passenger Track Access Contracts. The concept now
applies where Network Rail proposes implementing “means Works which
require a programme of Restrictions of Use extending over: (a) a
period of more than one year or (b)
a period which contains two or more Timetable
Change Dates” This
was tested in NV53, where the Committee concluded as follows “The Committee
then directed its attention to the issue of what, in this context, is a Major
Project, and whether the revised Forth Bridge repainting fell within the
scope of the definition of a Major Project.
The Committee took into account the following factors: 9.1. the implication of the discrete category “Major Project” is that it is something that can be differentiated from the normal run of renewal and maintenance activity that is carried out, year in, year out, subject to the terms of the “applicable Rules ….” 9.2. the definition brings together a number of
discrete elements, all of which would appear to require to be met, for there
to be an obligation on Network
Rail to categorise and manage an activity as a “Major Project”. …. 9.3. “project is not a defined term in either the Track Access Conditions, or the Railways Act, and therefore must be construed in line with common English usage. In this regard a project is something not “run of the mill”, but is non-repetitive, is undertaken to achieve a specific objective, implies the commitment of identified resources, and, probably, extends over a sustained period of time. 10.
The
Committee’s rationale was that the introduction of a changed method of
painting for the Forth Bridge involved the commitment of specifically
contracted resources, over a period of seven years, during the whole course
of which there was a potential requirement for possessions, all to achieve
the finite goal that future maintenance would be on a different system. It was the view of the Committee,
therefore, that this specific activity did fall logically within the scope of
the definition of a Major Project.
It followed therefore …[that the TOC] … was entitled to require Network Rail to
administer the specific activity as a Major Project and in accordance with
Track Access Condition Part D2.3 {D2.2}[now Condition D6].
In taking that view the Committee did so in the context of this
particular and unique set of facts.
It was not in any way moving in a direction whereby other more usual
types of maintenance could be categorised as Major Projects.”
{NV53] |
|
General
Principle |
TTP01 |
April/May 2005 |
12.
“The
Panel noted that the issue of the relative priority of Firm Rights and
proposals for possessions (whether in Rules of the Route [now Engineering Access Statement], or Major Project notices) has been
addressed in a number of previous determinations of both Network and Vehicle
Change Committee and Timetabling Committee.
In the view of the Panel, these past determinations had evolved the
following general principles. 12.1.Train Operators’ rights to run trains are
predominantly long term; 12.2.Network Rail’s obligation to supply Train
Operators with a secure Network is ongoing;
it cannot always be delivered without interruption to services, and
the relevant Parts of the Network Code, and the specific schedules in the
Track Access Agreements are framed to permit reasonable interruptions, and to
determine if, and how, Train Operators are to be compensated for the impact
upon their operations; 12.3.the normal process for planning such
matters is as set out in Part D of the Network Code ; 12.4.where the proposed engineering works /
“proposed method of implementation of the project” will have the effect that a Train
Operator will be frustrated, for the duration of the Timetable, from running
a service for which valid rights are held, this is likely to be seen as a
reasonable ground for challenging the proposal and causing it to be modified; 12.5.where the duration of the possessions is
only part of a Timetable, then any determination reflects an assessment of
the nature, and force of the rights enjoyed on both sides, tempered by
considerations of whether there are a number of options for delivering the
balance of rights, and whether that balance is the best met by the tabled
proposal.” {TTP01} |
|
General
Principle |
ADP21 |
November 2006 |
42.
“... a
key to understanding the concept of the Major Project depends on considering
the benefits that accrue to either party (Network Rail or the Train Operator)
from a decision that a particular set of works should be implemented as a
Major Project, subject to an established MPN. Under the provisions of Part D, Pink pages, those benefits
were: 42.1.
for
Network Rail, that all ROUs/SROUs for the duration of the timetables covered
in the MPN, were established, and could not …. be the subject of objection or
appeal. This level of certainty
allows for long term scheduling of tasks and the efficient deployment of
engineering resources; and 42.2.
for a
Train Operator, that the consequential individual ROUs, where they fulfilled
the requirements of Schedule 4
paragraph 2.7 b) and c), would qualify as SROUs under Schedule 4 paragraph
2.7a), irrespective of the duration of the possession, and would therefore be subject to the
(potentially more advantageous) compensation arrangements envisaged in
Schedule 4 Part 3 paragraph 2.7. 43.
With the
change of Part D to the Yellow pages, the concept of the MPN largely
disappears, to be replaced by that of the Possessions Strategy Notice. The key practical difference between the
two versions of the conditions is that, 43.1.
under the
Pink pages, the only means by which Network Rail could secure the ROUs for a
long term programme of works (of any kind) spanning more than one timetable,
was by declaring the works to be a Major Project, and triggering the relevant
provisions of Schedule 4 Part 3 paragraph 2.7 and 2.6. By Contrast 43.2.
under the
Yellow pages, the ROUs for a long term programme of works of any kind can be
secured by the establishment of a PSN.
A PSN, once established, under the provisions of Condition D2.2,
confers on Network Rail the same benefit in respect of incorporation of ROUs
into future Rules of the Route and future timetables as under the Pink pages,
but does not trigger the provisions of Schedule 4 Part 3 paragraph 2.7 and
2.6. 44.
That
said, there is, in Note 5 to the Yellow pages, an acknowledged need to
preserve the [Pink pages] status of a MPN in three specific circumstances,
namely 44.1. where there is an established MPN (Note
5(a)), 44.2. where the process of achieving an MPN has
progressed beyond the giving of formal notice of a Major Project, but
requires the formulation of the proposed method of implementation to become
established (Note 5(b)), or 44.3. whilst there are Track Access Agreements
that still use the term MPN “in defining a SROU”, then “In the event that Network
Rail wishes to implement a Major Project, it shall issue a Possessions
Strategy Notice in respect thereof … and identify that notice as one relating
to a Major Project (and for these purposes ‘Major Project’ shall have the
same definition as in the Preceding Code)” {ADP21} The
appeal to ORR against ADP21 did not result in any qualification being placed
on these findings |
|
General
Principle |
ADP21 ORR Determination of appeal by FCC against
ADP21 |
November 2006 July 2007 |
45.
,”…
”What is it that, in the regime of the Yellow pages, differentiates a Major
Project (as defined in the Pink pages) from a possessions strategy (as
defined in Yellow pages …)?”. 46.
I
note that both have in common the requirement for possessions/ ROUs
“extending over..(a) a period of more than one year; or…(b) a period which contains two or
more Passenger change dates”
, and conclude therefore that the two must be differentiated by that qualitative
component in respect of “engineering, maintenance or renewal ” that warrants
the use of the contractually undefined term of “project”. This I consider has to be a function of a
reasoned, and if necessary defended, judgement by Network Rail as to the
content of the task in hand, and not simply as to the number of tasks, or the
scale of the disruption to Train Operators.
47. I am particularly insistent that this need
for a reasoned case means that there is no obligation upon Network Rail to
declare a Major Project solely to make itself liable for higher levels of
compensation to Train Operators.” {ADP21} ORR’s analysis
47. “Whether
or not a particular set of works constitutes a “Major Project” for the
purpose of the Code and a TAA requires an objective assessment, which is
independent of the parties’ identity, subjective views, knowledge or
intentions. Once the substantive requirements for a “Major Project” have been
settled as a matter of law, the fulfilment of them in a given case is a
question of fact that must be determined in the light of the individual
circumstances of the case.” 54. “ORR therefore considers that a programme of works
will constitute a “Major Project”, for the purposes of … the Code and
Schedule 4 of the TAA, where it fulfils the following four cumulative
conditions: a)
the
works constitute a “project”, in the sense of a discrete set of co‑ordinated
activities, with definite starting and finishing points. The activities are undertaken by an
organisation to meet specific objectives within defined time, cost and
performance parameters and are “unique” in the sense that they are of unusual
nature and scope and/or are coordinated and implemented in an unusual way;
and b)
the
works involve engineering, maintenance or renewal activities; and c)
the works
require a possession or series of possessions over one or more sections of
track; and d)
the
works last for more than one year or for a period which contains two or more
Passenger Change Dates. ORR’s conclusion
on the facts of the present case
55. In the present case, conditions (b), (c) and (d) of
the test summarised above are clearly established on the facts. In relation
to condition (a) the Rewiring Works clearly involve a set of co-ordinated
activities undertaken by NR to meet the specific objective of renewing the
overhead line equipment on the ECML within defined, time, cost and
performance parameters. The
possessions, which cover one or more sections of track, were planned to take
place between May 2005 and December 2007 – a period of more than one year. The debate between the parties therefore
centres on whether the Rewiring Works are of unusual nature and scope and/or
are coordinated and implemented in an unusual way. 56. ORR considers that, in the particular circumstances of
the present case, the following considerations are material: a)
FCC gave
evidence, which was not contested by NR, that the Rewiring Works replace a
large proportion of the overhead line equipment, including its support
construction, which had not been wholly renewed or replaced for over 30
years. Even NR, in its letter of 11 May 2005, recognised that the nature of
the works was “unique”. The nature of the works therefore extends beyond
ordinary or “run-of the mill” maintenance or ad hoc renewals; b)
the
Rewiring Works have affected the whole of the operational route covering a
substantial length of track*. They have resulted in complete closure of the
ECML from Saturday until Monday on more than 20 occasions and on Sunday
morning on 48 occasions in less than 2 years. On numerous other occasioks,
there has been a severely restricted service over prolonged periods at
weekends and on bank holidays. The
scope of the Rewiring Works is therefore unusual; and c)
NR
decided to “package” a number of renewal works together so as to coordinate
the necessary possessions in a timely and cost‑effective manner and to
minimise the disruption to passengers and end-users of the railway. The way in which NR decided to implement
the works meant that it required more concentrated possessions than it would
otherwise have done. The way in which
the works were coordinated and/or implemented is therefore unusual. 57. In the light of the above considerations, ORR
considers that the Rewiring Works constitute a “Major Project” because they
fulfil all four substantive requirements, as set out at paragraph 54 above
including the fact that they are unusual in their nature and scope and in the
way in which they are coordinated and implemented.” * At the hearing, FCC gave evidence, which was
not contested by NR, that the Rewiring Works affected approximately 280 track
miles. |
|
General
Principle |
TTP310 & 312 |
January 2010 |
21.
“The Panel
found that the function of, and justification for, a PSN is that, once
properly agreed and documented, it provides, to Network Rail and Train
Operators alike, the necessary degree of certainty as to how a major scheme
will be delivered, against which to plan other activities. Thus 21.1.
Network Rail
can be certain that Restrictions of Use needed for the scheme will be
incorporated into the “applicable Rules of the Route” in the relevant
following years; and 21.2.
Train
Operators can reasonably argue against the inclusion in those future Rules of
the Route of Restrictions of Use that will affect their operations “around”
the PSN Restrictions of Use. 22.
A corollary
of the fact that decisions made regarding a PSN can have implications for
several future years, is that 22.1.
the audit
trail by which those decisions are documented for the benefit of persons or
bodies who may be accountable for enacting them in future, must be comprehensive
and all-embracing; and 22.2.
once
finalised, the detail covered by the PSN should not be open to amendment,
other than in accordance with the terms of the “Amendment Procedure”
included within the Rules of the Plan [now Timetable Planning Rules] …………..” [TTP310 and 312: paragraphs 21 and 22] |
|
D6.1 Possessions
Stategy Proposal |
ADP21 |
November 2006 |
22.
The Panel
found that the principal responsibility for administration of Part D of the
Network Code rests upon Network Rail.
It follows that, where there is a need to make a choice as to which of
the procedures envisaged in Part D should be adopted, that choice is one that
falls to be made by Network Rail.
This choice is necessarily informed by the terms of the applicable
Part D of the Network Code, and by the facts of the case as seen by Network
Rail, and may require to be defended, in the event that there is a formal
challenge brought by a Train Operator under Condition D5. 23.
The Yellow pages version of Part D clearly
envisages that Network Rail will in general rely solely upon the normal
processes for deriving the applicable Rules of the Route [now Engineering Access
Statement], but may
“at its discretion” have recourse to a PSN.
In addition, it has to consider, because of the provisions of Note
5(c) to Part D Yellow pages, whether there are circumstances such that it
could with advantage declare a Major Project, or is required so to do. However, note 5(c) is clear that the
requirement to issue a PSN(MP) is predicated upon an act of will of Network
Rail, namely “in the event that Network Rail wishes to implement a
Major Project, it shall issue a Possessions Strategy Notice in respect
thereof in accordance with Condition C2.2 and identify that notice as one
relating to a Major Project”. 24.
For the
avoidance of doubt, the Panel construed this Note 5(c) as imposing on Network
Rail the obligation, where it had decided that works fulfil the definition of
a “Major Project”, to progress those works under the cover of a PSN(MP). The decision as to whether works
constitute a “Major Project” is material, and liable to challenge under
D2.2.4. The failure to issue a
PSN(MP) is not, of itself, confirmation that there is no Major Project.
{ADP21} The
appeal to ORR against ADP21 did not result in any qualification being placed
on these findings |
|
D6.3 Possessions Strategy Notice |
TTP310 & 312 |
January 2010 |
23. “The
Panel finds that it is required to consider the Water Orton PSN (EEPW12v2)
issues raised by XC and GBRf from two specific perspectives, namely 23.1. whether the prescribed procedures defined
in Condition D … have been properly complied with, and 23.2. whether any of the Restrictions of Use set
out in EEPW12v2 take insufficient
account of the requirements of the two dissenting Train Operators, GBRf and
XC. 24. The Panel noted that, on the first point,
it is explicitly requested by NR to find that [the PSN] “was correctly consulted by Network Rail in accordance with …. the
Network Code” …., and that the
contrary view is argued by GBRf. The
Panel considered that if it were not able to uphold the position argued by Network Rail then 24.1. it would be appropriate to conclude that there
was no de facto PSN for the Water Orton Works: and therefore 24.2. there would be no grounds for addressing
the points of detail. 25. The Panel finds that [the Conditions] impose very specific preconditions that Network Rail is required to fulfill, as between
the conclusion of the consultation …. and the issuing of a PSN. It is the view of the Panel that it is
not sufficient for Network Rail to assert that it has fulfilled those
requirements, but that, if challenged, it must be able reasonably to demonstrate,
by reference to records, that they have been fulfilled, at the time, and not
retrospectively. 26.
The Panel
has had to consider the specific representations of GBRf regarding the
failure to respond to its document submitted on 2nd August 2009,
as reflected in its follow up response document of 6th October
2009. The failure by Network Rail to
respond to GBRf’s document dated 2nd August 2009 alone leads the
Panel to the conclusion that Network Rail had not fulfilled the requirements ….
before issuing EEPW12v2 on 16th September 2009. For this reason it follows that, in the
view of the Panel, it cannot find as requested by Network Rail, that [the
PSN] “was correctly consulted by
Network Rail in accordance with the ….Network Code” and that therefore
the effective position is that Network Rail is
not entitled to deem EEPW12v2 a “Final” PSN.” [TTP310 & 312; paras 23 to 26] |
|
D6.4 Appeal |
TTP01 |
April/May 2005 |
“16. The common characteristic of [references
made under the appeal provisions] is that a Train Operator contends that the
proposed “method of implementation” will impact adversely upon the conduct of
its business. A Panel, in order to
weigh the merits of the case before it, needs the information, to a
proportionate level of precision, to enable it to judge, ·
as
between the rights of the Train Operator and Network Rail, ·
the case
for the “method of implementation” proposed, and ·
the scale
of the hurt likely to be experienced by the Train Operator.” {TTP01
para 16} |
|
D6.4 Appeal |
TTP01 |
April/May 2005 |
13. “Whilst [ADR Rule A5] requires that the
Panel “shall reach its determination on the basis of the legal entitlements
of the dispute parties and upon no other”, the legal entitlement to any train
service is a function of not just the formulation of the train specification
in [Schedule 5 of a track access contract], but also the extent to which all
parties have complied, and with what diligence, with the procedures for
consultation and debate incorporated in the Network Code. In effect 13.1.the legal entitlements of Train Operators
are a fusion of the documented
expression of their Firm Rights , and their active compliance with the
procedures by which those rights can be exercised, implemented and
protected; and 13.2.the legal entitlement of Network Rail to a
degree of latitude in curtailing the benefits enjoyed by the Train Operators
is, by the same token, a function of being able to demonstrate that the
curtailment sought is a reasonable minimum, in proportion to other
considerations. 14.
In
short, where absolute legal considerations are in conflict, the issue of
proportionality is an over-arching aspect of the procedures.” {TTP01} |
|
D6.4 Appeal |
ADP10 |
August 2005 |
The
Panel was asked to determine that where proposed possessions would mean that
services for which Firm Rights existed would require potentially costly
diversions, a Train Operator was entitled to require Network Rail to meet
those costs as a condition of the Train Operator withdrawing its opposition
to the possessions. The Panel found
against this contention, on the following grounds: 17.1. “where, in the course of the operation of
the provisions of Condition D2 a Train Operator considers that it will suffer
an unreasonable impact from a proposed change to the Rules of the Route [now Engineering Access
Statement], it is
entitled to support its case against the proposal with whatever arguments it
considers appropriate, whether in dialogue with Network Rail, or within the
formal dispute resolution procedure;
17.2. all such arguments (including any
references to the Decision Criteria) are likely to be taken into account by
any Appeal Body (Timetabling Panel, or Office of Rail Regulation) in any
weighing up of the merits of the contested proposal; 17.3. the likelihood of additional costs is a
reasonable argument to adduce in support of a particular point of view;
however, the advancing of the argument does not mean that an entitlement is
thereby created, unless the argument is based upon an explicit contractual
right; 17.4. it does not accept FL’s argument that such
additional costs should be deemed Relevant Losses, nor that it has any
explicit contractual entitlement to compensation for additional costs in any
of the circumstances quoted;
therefore 17.5. in such circumstances, it is quite clear
that there is no power of veto of proposed changes to the Rules of the Route,
contingent upon the payment of any such compensation; and therefore 17.6. where, as was the case in several parts of
Timetabling Panel Decision no.1, an Appeal Body has not upheld FL’s or FLHH’s
reasoned objection, the proposed Restriction of Use to carry out renewals can
become part of the “applicable Rules of the Route”, and 17.6.1. FL’s & FLHH’s Firm Rights become subject to any proposed
Restrictions of Use that are incorporated within the “applicable Rules of the
Route”; and 17.6.2. FL or FLHH’s entitlement to compensation
in such cases is through the terms … of their respective Track Access
Agreements, and otherwise the parties are required to meet their respective
costs where they lie. 17.7. an Appeal Body does not have the
discretion to rule that a party has an entitlement that is not already
provided for in the contract.”
{ADP10} FL sought to appeal against this
determination, under the terms of Network Code Part M, to the ORR. ORR declined to hear the Appeal on the
grounds that “the appeal does not have a real prospect of success”. |
|
D6.4 Appeal |
ADP21 determination by ORR of appeal by
FCC |
July 2007 |
In formulating
its determination on ADP21, the Panel had been asked to determine which of
two successive versions of Part D should apply to the circumstances in
question. The issue was complicated
by the fact that during the period to which the dispute related the holder of
the Franchise had changed, and the Panel considered that this had a material
bearing upon which text and processes should be deemed to apply; specifically
that the operative version should be that which applied at the date of the
Franchise change. In its
determination of the appeal this issue was addressed by the ORR, and an
important principle established, both in relation to the applicability of
versions of documents, and also as to the responsibilities of current
franchise incumbents in respect of processes which will not conclude until
after the end of their tenure. 63. “The better view is to regard NR’s duties as
crystallising at a particular point in time. In the Determination, the Panel
concluded that the material time for assessing the applicable version of the
Code was the time when FCC took over the franchise in April 2006. In ORR’s
view, the transfer of the franchise has no bearing on the substance of NR’s
duties under the Code and should not have been determinative. The material
time for determining the application of the Code is the time when any notice
should have been served (if there was indeed an obligation to serve one).
That period may span from the time when the works were first in contemplation
until the project started to be implemented. ORR’s conclusion
64. In the present case, and based on the facts before us,
NR was contemplating the works at least from September 2004 and commenced the
Rewiring Works in May 2005. Accordingly, NR’s duties under the Code in
respect of giving notice of the Rewiring Works should be assessed by
reference to the Pink Pages, which were in force at that time.” 88. “For the above reasons, ORR makes the following
determination: (a) ; (b) ; (c) NR should have served a MPN on WAGN and
engaged in the MPN Process in accordance with …. the Code; (d) The failure by Network Rail to serve such
notice and to engage in the MPN Process could have been challenged by WAGN
under …. the Code up until the time when the project was implemented; (e) Once the works commenced, the remedy in
respect of a failure to comply with …. the Code was a claim for damages for
breach of the TAA in accordance with all the relevant provisions of the TAA; ….” [ORR Determination of Appeal against ADP21] |