This Page was last updated on 07 February 2011
Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics, or between “quotes”)
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General
Principle |
TTP376/377 |
September 2011 |
“[TOC}” raised the issue of the
adequacy of the Schedule 4 revenue compensation available to it for its disrupted
services, in relation to its assumed actual revenue loss resulting from
overall suppression of passenger numbers rather than just directly affected
trains, with the assertion …. that its potential revenue loss if the proposed
possessions are taken could exceed its Schedule 4 compensation. …. it seems that this cannot be a proper
consideration for a Panel such as this to take into account in evaluating the
proposed timing of possessions. As
far as the Panel is concerned, the level of Schedule 4 compensation,
including the extent (if any) to which it takes account of estimated levels
of disaffected would-be passengers, must be regarded as a 'given' determined
by policy and consultation, and ultimately by ORR.” [TTP376/377. para. 8.3.5] |
Part 3 |
NV50 |
November 2003 |
6.
The Committee therefore determined that: 6.1.
STS’ insistence that Network Rail should provide
all necessary Access Planning Resources to comply with the T-12 standard for
Informed Traveller, even in respect of Major Project notice works, is reasonable; 6.2.
the arrangements that Network Rail had stated that
it proposed to take to strengthen the Access Planning capability, appeared
appropriate, and should be implemented; 6.3.
the Committee requires Network Rail to monitor
actual compliance with T-12 timescales in respect of all the works covered by
this Major Project notice; and that 6.4.
provided that Network Rail can demonstrate that it
has genuinely deployed best endeavours to achieve T-12 compliance, failure
wholly to achieve T-12, shall not be a sufficient reason to require works or
a blockade to be cancelled. |
Part 3 paragraph 2.6 “Major
Project” and “Significant Restriction of Use” |
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 “Possession Strategy Notice” procedure. However, the concept of the Major Project
is still referred to in Schedule 4 of some Passenger Track Access Contracts,
and therefore the definition, as given in the October 2005 Pink Pages retains
force ( see note 3 of the Yellow Pages dated 12 January 2007). As defined in the
Pink pages “Major
Project” “means any engineering,
maintenance or renewal project which requires a possession or series of
possessions of one or more sections of track extending over: (a)
a period of more than one year”: or (b) a
period which contains two or more Passenger Change Dates” This
was tested in NV53, where the Committee concluded as follows 9.
“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 of the Route/ Rules of the Plan” 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”. These are: 9.2.1. the activity relates to “engineering, maintenance or renewal”; 9.2.2. it requires “a possession or series of possessions of one or more sections of track”; 9.2.3. that requirement lasts “ a period of more than one year”; and 9.2.4. the activity relates to a defined “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 from that that SRR 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}. 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] |
Part 3 paragraph 2.6 “Major
Project” and “Significant Restriction of Use” |
ADP21 ORR
Determination of appeal by FCC against ADP21 |
November 2006 July 2007 |
This
determination sought to clarify which Network Rail Works should be deemed to
be a Major Project for the purposes of
administering a significant programme of Restrictions of Use, and in
consequence, what level of compensation payment should be made to a Train
Operator. The Determination
required to reach its conclusions taking account of the fact that the
relevant provisions of Network Code Part D relating to Major Projects had
been deleted, that a new concept, the Possession Strategy Notice had ben
introduced in its stead, and that vthe “Major Project” now only figured (in
the Yellow Pages of the Network Code) as a footnote. The
Panel’s determination was taken to appeal by the Train Operator; central to that appeal was a
consideration of the definition of
“Major Project”. The ORR’s
conclusions on that point were as follows 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.” 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[1].
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 occasions, 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. . |
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Network Code Section |
Determination |
Date of Hearing |
Points made within Determination
(Verbatim extracts given in Italics, or between “quotes”)
|
Part 3
Paragraph 4 Notification
Factors |
ADP20 Interim ORR
determination on Appeal |
January 2007 October 2007 |
TheORR’s findings on appeal in this case are best
understood by treating them as individual comments ( some upholding , and
some qualifying),on the findings of
the Panel)
56.10. “the column C Notification Factor applies
only where the facts of the case fit the wording of paragraph 4.1 of Schedule
4. If they do not (for example,
because the ROU was not reflected in the First Working Timetable, and this
was not because of a request by FGW that it should not be) Network Rail
cannot claim the benefit of column C whatever FGW’s shortcomings may have
been; “ORR upholds the Panel's
finding at paragraph 56.10 of the Interim Determination” 56.11.
the use
of the word “because” in paragraphs 4.1(b)(iii) and 4.2(b)(ii) of Schedule 4
to the Track Access Contract means that the column C (or as the case may be
D) NF applies only where Network Rail’s failure to upload to TSDB by T-12 has
been caused by FGW’s failure to submit a Revised Bid by T-18 (taking account
of all that is said in this determination).
A “but for” test should be applied.
This test would not be satisfied if it appeared that the true cause
was a complete failure of Network Rail’s systems. It would be unlikely to be satisfied if what FGW had prepared
and intended as a Revised Bid failed to qualify as such only because it was
submitted a day late. ORR upholds
the Panel's finding at paragraph 56.11 of the Interim Determination
in that it agrees that the word "because" in paragraphs 4.1
(b)(iii) and 4.2(b)(ii) of Part 3 of Schedule 4 pt the T AA means there must
be a causal connection between the train operator's failure to submit a
Revised Bid in accordance with Condition 04.8.3, and the fact that the ROU
was not reflected in the Working Timetable on the relevant day. ORR rejects
the Panel's finding that the appropriate test for causation is the "but
for" test and finds that the correct test is whether the failure to
submit a Revised Bid is a substantial cause of the fact that the ROU is not
included in the Working Timetable, even if there are other concurrent causes” 56.12. given the
discretions and authorities at Network Rail’s disposal in the operation of
Condition D4.8.2, instances when a failure to “upload to TSDB at T-12” is “because the Train Operator has failed to
give Network Rail a Revised Bid in accordance with Condition D4.8.3”, and the “but
for” test is therefore satisfied, are likely to be specialised and
infrequent. “ ORR rejects the Panel's finding at paragraph 56.12
of the Interim Determination” 56.13. Schedule 4, and
in particular paragraphs 5 and 4, are drafted on the basis that a) all ROUs
require Network Rail to pay compensation to the Train Operator; b) the extent
to which the compensation factor is reduced by one Notification Factor rather
than another depends largely on steps to be taken by Network Rail;
accordingly c) the onus of proof is on Network Rail to demonstrate that those
steps were taken to justify application of a particular Notification Factor.” . ORR rejects the Panel's finding at paragraph 56.13
of the Interim Determination 'and finds that in so far as there is a dispute
of fact between the parties, the onus of proof is on the party alleging the relevant
fact and once the facts are established the duty of any tribunal will be to
construe the relevant provisions of the contract. and applv them to the
facts.”{ADP20 Interim, and ORR findings on same}} As of 31/07/2008, the parties have advised that, on the basis of the interim determination of ADP20, and the findings of the ORR, they have been able to reach agreement, and that therefore there will be no need for any final hearing of ADP20. |
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[1]
At the hearing, FCC gave evidence, which was
not contested by NR, that the Rewiring Works affected approximately 280 track
miles.