Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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Definitions:“Environmental Damage” |
ADP18 |
August 2006 |
5. The Panel considered the structure of Part
E of the Network Code, given that this was the ground upon which the
reference had been brought, and found that the definition of an environmental
problem derives from a hierarchy of conditions, and that a failure to fulfil
one condition ought logically to frustrate fulfilment of later dependent
conditions. Thus 5.1. it must be evident that the matter at
issue is one that adequately fulfils the criteria for “Environmental
Damage”; then 5.2. that the defined Environmental Damage, or prospect of
Environmental Damage is such that “in Network Rail’s reasonable opinion [it]
could result in Network Rail incurring any material liability or being
subject to the Direction of any Competent Authority”; and that 5.3. “Network Rail’s … opinion” must be
demonstrably “reasonable” by reference to both a clear and proper
understanding of its legal responsibilities, and to a due assessment of the
risks arising from the perceived condition..
{ADP18} |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim
extracts given in Italics)
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E2.1.2
“Relevant Criteria” |
ADP18 |
August 2006 |
“6. If, taking all matters into account,
Network Rail has demonstrated that an Environmental condition exists, then the
liability of Train Operator to take action, and/or to meet the costs of
addressing that Environmental Condition is dependent upon fulfilment of a
further hierarchy of conditions, namely that 6.1. the Environmental Condition is “a
direct or indirect result of the activities of a Train Operator” and that 6.2. “Network Rail
reasonably considers that action is required to prevent, mitigate or remedy
that Environmental Condition” and
that Network Rail shall have due regard ·
“(a) to the likelihood that the
person in question may be liable (other than pursuant to this Part E) to
make any payment or to take or omit to take any action in relation to the
Environmental Condition or Direction in question, whether under any Access Agreement
to which it is a party or otherwise; · (b) in
relation to the steps to be taken and the objectives of those steps, to the
efficiency and economy with which the steps may be taken, and the
effectiveness of those steps, if that person takes those steps, irrespective
of the matters referred to in paragraph (a) above; and ·
(c) all
other relevant circumstances of the case” [Part E. Condition
2.1.2 “Relevant Criteria”]” {ADP18}. |
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E2.1.2
“Relevant Criteria” |
ADP18 |
August 2006 |
“8. … taking account of the provisions
of Part E of the Network Code, the Panel considered that, in order to resolve
the particular circumstances of the case, it had to address two issues of
principle, namely 8.1. where does the onus of proof lie to
establish 8.1.1. that there does exist an Environmental
Condition; 8.1.2. that it does require to be addressed; and that 8.1.3. it is causally “a direct or
indirect result of the activities of a Train Operator” and therefore potentially to the charge
of the Train Operator to remedy? And 8.2. what is the range of “normal behaviour”
that either the Train Operator or Network Rail is entitled to expect of the
other as part and parcel of the normal discharge of contractual obligations
under the Track Access Contract, that do not warrant invoking the provisions
of Part E.” {ADP18} |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
|
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E2.2.1
“Obligation [of Train Operator]” |
ADP18 |
August 2006 |
“12.5. in the absence of a demonstrable Environmental Condition (or
Direction of a Competent Authority) there are no grounds for Network Rail to make
an assessment, nor to promote measures of mitigation; in which circumstances the issue of which
party (other than Network Rail) might pay for such mitigation measures does
not arise”….{ADP18 “the
Panel’s determination” |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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E2.3 |
ADP18 |
August 2006 |
“9. The Panel found that the overall responsibility
for the safe operation of the Network was vested with Network Rail, and that
therefore it was logically the responsibility of Network Rail to discover
risks, threats and Environmental Conditions, and to prescribe, and, if
necessary, deliver the appropriate remedies or mitigations. It follows that 9.1. the onus of proof as to the existence of
an Environmental Condition, and a liability of a Train Operator, rests
unequivocally with Network Rail; 9.2. Network Rail has the protection of
Condition E 2.3 to ensure that it cannot be frustrated in carrying out any
necessary actions to address an Environmental Condition, but that 9.3. a test of the reasonableness of a proposed
action is that it is one that Network Rail would consider necessary even
where it is not demonstrated that it should be explicitly paid for by a Train
Operator. 10. The
Panel considered that in relation to the question of “normal behaviour” 10.1. it was likely that any rail vehicle powered by under-floor
diesel would, in the course of functioning normally, exude some quantity of
oil, but that the Train Operator would have a vested interest in keeping such
losses of oil to an absolute minimum; 10.2. the normal
operation of rail vehicles on track is covered under the variable element of
the track access charges paid by operators, and as such any action necessary
to contain or remove such oil could reasonably be construed as part of
Network Rail’s obligation to the Train Operator; by contrast 10.3. action (or inaction) by a Train Operator resulting in a
serious malfunction of rolling stock, with consequential spillage
contamination, would not be normal behaviour, and, in consequence it would be
reasonable for the costs of remediation or mitigation of a resultant
Environmental Condition to be attributed to a Train Operator in accordance
with the provisions of Condition E2.1.3.” {ADP18} |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics)
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