Freight Track Access Contract

 

This Part was last updated on 2 September 2010

 

 

Part 5 Permission to Use

 

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]