This Part was last updated on 2 September 2010
Rule, clause or Condition |
Determination |
Date of Hearing |
Points made within Determination (Verbatim
extracts given in Italics, or between “quotes”)
|
5.1
“Permission to use the Network” |
|
|
“ORR’s
assessment 20. Under Clause 5.1 of
EWS’ track access agreement, Network Rail grants EWS permission to use its
network in accordance with the terms of the agreement. However, Clause 5.2 states that the
permission to use the network shall, except where the context otherwise
requires, be construed to mean permission, among other things, “to use the
track comprised in the Network in accordance with the Network Code for the
provision of the Services in accordance with their Service Characterisitcs
and for any Alternative Train Slots, using the Registered Equipment in
accordance with the Freight Operating Constraints. … Clause 5.2 explicitly
provides that the permission to use is subject “in each case and in all
respects to the network code and the Freight Operating Constraints”.” OFFICE OF RAIL REGULATION DETERMINATION OF AN APPEAL BY ENGLISH WELSH & SCOTTISH RAILWAY AGAINST A DETERMINATION OF THE NETWORK AND VEHICLE CHANGE COMMITTEE REGARDING THE PROPOSED REMOVAL OF RUSCOMBE LOOP (ref NV58), paragraphs 17 to 22) |
5.1
“Permission to use the Network” |
ADP47 |
February 2010 |
[This case related to the operation of Doncaster
Up Decoy Yard. Within this yard
there is a length of single track (referred to in the determination as “the
Network Line”) that remains within the ownership of Network Rail, but
provides access both to sites that are leased from Network Rail, and others
that are on private land. “The
Network Line” is not signalled beyond a boundary signal, and permission to
pass that boundary, and control of all other movements over “the Network
Line” is at the direction of an employee of the Train Operator that leases Up
Decoy Yard. This arrangement
perpetuates that in force prio to privatisation, but was challenged when a
second Train Operator disputed that it should be required to pay a charge to
another Train Operator for the right to use part of Network Rail’s
Network.] Thus “The Panel’s findings
in respect of entitlements
13.
The Panel
considered that the main issue in this case related to the rights GBRf (and
other Train Operators) acquired by the terms of the “Permission to Use the
Network” [Clause 5 of the GBRf Track Access Agreement]. Given Network Rail’s own stated position
that “the Network line” was a part of the Network like any other, the Panel
could not see that there would be any case for Network Rail charging any
premium for its use, over and above the standard Network Access charges. 14.
… 15. That said, the Panel considered that there
was something intrinsically anomalous about Network Rail relying upon a de
facto delegation, to one of the competing Freight Train Operators, of
responsibility for the control and supervision of all users of “the Network
line”. In such circumstances it
would be unusual if there were not a clear contractual basis for determining
the respective duties, obligations and responsibilities, in what is, to all
appearances, a relationship between a principal and its agent. 16. The Panel therefore determines, in respect
of the representations made by the parties, as follows 16.1. The Panel acknowledges and agrees with the
basic proposition that trains operated by GBRf over the stretch of railway
line between Doncaster signals 1403 or 1405 and the boundary with
Freightliner Railport, (“the Network line”) derive their entitlement to
access that stretch of line from the terms of the GBRf Track Access
Agreement. However, 16.2. Network Rail depends, for the safe
regulation of trains over this stretch of line (i.e. for the discharge of its
responsibilities towards GBRf, FL and other Train Operators in respect of
Clauses 4 and 5 of their Track Access Agreements), upon the “degree of
skill, diligence, prudence and foresight” of staff employed by a third
party, namely DBS. 16.3. The Panel is quite clear that the
responsibility for assuring the regulation and safe passage of trains over
all parts of the Network, and for providing or procuring all services
necessary to achieve this lies totally and unequivocally with Network Rail. In this context, the Panel supports the
(abridged) proposition that “First GBRF should not be required to pay any
third party for future access to this part of the Network”.
” [ADP47] |