Part
J relates to the extent of rights to train slots held under a Track Access
Contract, and how, where commercial or other considerations supporting a given
set of rights change, those rights can be varied, surrendered or transferred to
another Train Operator. These were
initially not processes where the Access Disputes Panels were given any
jurisdiction. Further subsequent revisions
to the whole of Part J have the consequence that all disputes arising out of
the operation or interpretation of Part J are to be referred initially “for
determination in accordance with the ADRR”, with, where a party “is
dissatisfied with the decision reached” a right to appeal to the ORR in
accordance with Condition M. It should
be noted that any process that relates to the definition of the Access Rights
held by any party must result in changes to the relevant Track Access
Agreement; part of the function of all such changes to be subject to the formal
approval by the ORR.
In
August 2007 ADP23 considered certain fundamental aspects of Conditions J7 and
J8. The determination was subsequently
appealed to the Office of Rail Regulation.
In its Determination of the appeal, (published in January 2008) ORR “set
aside” Determination ADP23 in its entirety. The text of ADP23 is accessible on this website, but, in view of
the range of the ORR’s criticisms of the Panel’s determination, the relevant
parts of this Directory include only the findings of the ORR, and do not quote
from that determination.
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”)
|
|
J1.2 Interpretation - “Y-Path” |
ADA21 |
March 2015 |
“ORR considers that the definitions
in the Network Code and in the track access contracts are not
inconsistent. A QAR [“Quantum Access
Right”] with a Y-Path in the Rights Table should appear as a Y-Path in the
Working Timetable, assuming that the Train Operating Company has made an
access proposal for both. The track
access contract concerns the allocation of QARs. The Working Timetable is how those rights are expressed in a
timetable period as Train Slots.” [ORR determination of appeal
against determination ADA21, para. 70] |
|
J1.2 Interpretation
- “Primary Purpose Customer” |
ADA21 |
March 2015 |
“The definition of a Primary
Purpose Customer is a customer(s) other than the third party referred to in
Condition J7.1.2(a). …. ORR considers that this must be the
customer where the QAR [“Quantum Access Right”] concerned relates to
transport services provided to that customer. It cannot be just any other customer of the Incumbent reliant
on another QAR. The Primary Purpose
rule relates to the transport service using a specific QAR.” [ORR determination of appeal
against determination ADA21, para. 63] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”)
|
|
J4.8 Counter
Notice |
ADP42 & 44 ORR Appeal |
November 2009 March 2010 |
37. “….the Panel also finds that Condition
J4.9.1 [now
J4.8.1] states that when
serving any Counter Notice, the Train Operator “must provide evidence
with the Counter Notice in support of its contentions.”…. 38. The Panel was advised, by the Disputes
Chairman that a requirement that a proposition be supported by evidence is,
in this particular instance, not legally satisfied merely by an assertion
made without support of evidence. 39.
The Panel considered the Counter Notices as served by DBS, and
concluded that, notwithstanding such other background information that it
might have been given, such as the letter from Stobart supplied to Network
Rail on 11th November 2009, and representations made at the
hearing, its mandate to consider whether or not DBS had a “reasonable
on-going commercial need” had to be determined on the evidence, as
opposed to any assertion, provided “with the Counter Notice in
support of its contentions”. 40.
After
careful consideration the Panel
concluded that DBS had not supplied any evidence of “reasonable on-going
commercial need” with its Counter Notice, and that neither an
assertion, nor a letter (that of 28th September) sent on November
11th (four weeks after the Counter Notice), fulfils that
requirement. Failure to comply with
such an unequivocal formulation as ““must provide evidence with the
Counter Notice in support of its contentions” has therefore
to imply that 40.1.
the Counter
Notice does not have effect; 40.2.
the Panel
has no basis or requirement to consider the merits of any arguments brought
by DBS in relation to “reasonable on-going commercial need”; and 40.3. Network Rail is entitled to proceed as if,
in accordance with J4.9.2 [now J4.8.2], “ no [valid] Counter Notice is
served within 10 Working Days of receipt of a Failure to Use Notice: (a) the Train Operator [now Part J Access
Beneficiary] will be
deemed to have agreed to the surrender specified in the Failure to Use
Notice;” and therefore 40.4Network Rail shall be entitled to proceed
to carry out the processes for “Surrender of Access Rights” as prescribed in
Conditions J4.12 and J5.4(d) [now J5.3.1(f)],
and their transfer to the Applicant…” The logic of the arguments addressed in the immediate
foregoing paragraphs were considered by the ORR, to be “correct in terms of
DBS'
challenge on the grounds of reasonable on-going commercial need”.
This endorsement, which may be of value in other instances,
was rendered irrelevant by the ORR’s other findings in respect of the proper
interpretation of J5.3 (qv). The
adequacy or otherwise of the form of a Counter Notice, is of but academic
interest, where the initial Notice has been deemed to have been inadequately
formulated. [THE OFFICE OF RAIL REGULATION'S
DETERMINATION OF THE APPEAL BY DB SCHENKER RAIL (UK) LIMITED
("DBS") PURSUANT TO CONDITION J13.3 AND PART M OF THE NETWORK CODE
AGAINST DETERMINATIONS ADP42 AND ADP44 OF THE ACCESS DISPUTES PANEL (THE
"PANEL") OF THE ACCESS DISPUTES COMMITTEE IN RESPECT OF A JOINT
REFERENCE BY DBS AND NETWORK RAIL INFRASTRUCTURE LIMITED ("NR")
CONCERNING THE VALIDITY OF TWO THIRD PARTY FAILURE TO USE NOTICES SERVED BY
NR ON DBS.] |
|
J4.3 Failure to Use |
ADA05 |
March 2011 |
“….acceptable
reasons for a Failure to Use all revolve around a factor which is quite
clearly outside the control of the train operator – a commodities
fluctuation, a fire, a strike. In
these cases, the cessation of use follows directly from a decision or action
which was taken by someone other than the train operator. …. though the list is non-exhaustive we
consider it would be wrong, having regard to the intention of Part J, to
allow reasons which do not share that characteristic. It logically follows then, that a Failure
to Use which flows from an action taken by the train operator and which is
within its control is not an acceptable reason for a Failure to Use. In ORR’s view, a Failure to Use arising out of the decision
(taken here for economic reasons) to close the … terminal is a classic
example of a decision within the control of the operator. As such it is not an acceptable reason for
a Failure to Use. The economic nature
of the decision is not the decisive factor in considering acceptable reasons
for a Failure to Use.” [ORR determination of appeals against ADA05
determination, paras. 84 & 85] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or
between quotes)
|
|
J5.1 Third Party
Failure to Use Notices |
ADP41 |
November 2009 |
The Panel was asked to
determine when, (i.e. what were the preconditions to be met) Network Rail
could issue a Third Party Failure to Use Notice. “ 19.
. The Panel …. construed J5.1 on the following
basis. 20.
The issuing
of a Third Party Failure to Use Notice by Network Rail to an Incumbent is
dependent upon the fulfilment of four specific stated pre-conditions: as these pre-conditions are all linked by “and”,
the Panel considered that all
four must be met or no notice can be issued. 21.
J5.1 (a) states that the route to the issuing of a notice starts with “an
application from …. (the “Applicant”) for a Quantum Access Right to a Train
Slot”; this means that the Applicant (in this case FSR) is seeking (i.e.
does not already possess) Rights such that it may become the Train Operator
authorised to make use of a specific Train Slot; this in itself
implies that the Train Slot sought is one that pre-exists the application and
is not a Train Slot already secured by the Applicant (i.e. FSR); 22. “Train Slot” is
itself a defined expression, (“a train movement or a series of train
movements, identified by arrival and departure times at each of the start,
intermediate (where appropriate) and end points of each train movement” [Network
Code Part D]) and relates to the totality of the capacity Network Rail is
required to allocate for the complete passage of the relevant service. 23.
In J5.1(b) [now J5.1.1(b)] this definition is further qualified, in
relation to both the Applicant and the Incumbent, viz (b)
the Train
Slot: [i.e. the Train Slot that is the subject of the
application] (i)
is one in respect of which the Applicant can
demonstrate a reasonable commercial need; and (ii)
was secured in exercise of a Quantum Access Right
of another …. (the “Incumbent”); and (iii)
is one in respect of which there is a …. Failure
to Use by the Incumbent, 24. The Panel noted that the parties had
focussed their disagreement upon the meaning of Condition J5.1(b) (ii), and
the Panel considered this first, as failure to fulfil any one of the four
pre-conditions would validate Network Rail’s decision to decline to issue a
Third Party Failure to Use Notice. 24.1. J5.1 (b) (ii)
makes clear that the Train Slot that is the subject of an application needs
to derive from the Quantum Access Right of …. “the
“Incumbent”, which cannot therefore be FSR “the Applicant”. Furthermore, as a Train Slot has no
substance other than when incorporated as an entry in a Working Timetable, “was
secured in exercise of a Quantum Access Right” can only mean that the
Right was converted by the Incumbent from latent obligation to practical
reality by the process of Bidding and Offering prescribed in Part D
(Timetable Change). Had DBS, the
Incumbent, made a bid, the Train Slot that would have been secured would have
been one permitting the passage of a Freight train over the Forth Bridge en
route between Hunterston and Longannet (or vice versa). 24.2. FSR did not
make explicit precisely what Train Slot(s) it currently has “secured in
exercise of” its Contingent Rights; however, to the extent that those
Train Slots relate to services between Edinburgh, Fife and Aberdeen, FSR’s
Train Slots have very little in common with the Quantum Firm Rights to move
coal from Hunterston to Longannet held by DBS (at most no more than timings
between Dalmeny Junction and Inverkeithing or Charlestown Junctions); therefore 24.2.1. it would not be
reasonable to equate a Train Slot between Hunterston with Longannet with one
between Edinburgh and Aberdeen, and 24.2.2. the common
fragment of both Train Slots (i.e. across the Forth Bridge) does not qualify
to fulfil the definition of a Train Slot; therefore 24.3. FSR’s case
falls because 24.3.1. DBS has not
secured a Train Slot, and even if it had 24.3.2. the Train Slot
secured in relation to movements between Hunterston and Longannet, would not
have sufficed for a passenger service between Edinburgh, Fife and Aberdeen. 25. On the basis of
this construction of Condition J5.1(b) (ii) the Panel questions Network Rail
preparedness to concede that FSR fulfilled Condition J5.1(b) (i). Whilst
FSR has a “reasonable commercial need” for paths across the
Forth Bridge to operate passenger services between Edinburgh, Fife and
Aberdeen ,FSR’s “commercial need” cannot be fulfilled in terms of the Train
Slots that might be “secured in exercise of” DSB’s Level 1 Rights. 26.
As FSR does not fulfil either of J5.1 pre-conditions (b) (i), or (b)
(ii), a consideration of (b) (iii) might be considered superfluous. In the event, the parties and the Panel
were agreed that there was no Failure to Use by the Incumbent as the
Incumbent, for responsible and previously tested reasons, had elected not to
exercise the right to secure a Train Slot between Hunterston and Longannet
via the Forth Bridge in the December 2009 Working Timetable. The Panel therefore concluded that,
because of its failure to meet the requirements of J5.1(b)(ii), by extension
FSR’s notice did not meet the requirements of J5.1(b)(iii). ” [ADP41] |
Network Code Section |
Determination |
Date of Hearing |
Points made within Determination (Verbatim extracts given in Italics, or between “quotes”)
|
|
J7.1.2(a) |
ADA21 |
March 2015 |
“… for Condition 7.1.2(a) parties
must look at the transport services actually provided and not entirely rely
on what is in the contract with the customer.” [ORR determination of appeal
against determination ADA21, para. 61] |