It should be emphasised that the Code sets out a clear set of obligations and rights on the part of NR and train operators which govern the timetabling process. While ORR has no wish to see parties embroiled in unnecessary bureaucracy, it is clear that the process for the development of the 2008 FWT was conducted with considerable informality and, in some instances, disregard for the formal contractual processes. This has led at the very least to confusion on the part of WSMR as to its rights and NR’s obligations and to a lack of transparency as to the process at various stages.

As infrastructure manager and the entity controlling the timetabling process, NR has a particular responsibility to ensure that the process operates properly and with due regard to the interests of all parties. NR’s operation of an informal, iterative, collaborative compilation process for this complex timetable appears to have been adopted with good intentions, but it is not clear to ORR that the timetabling process has been conducted in a way which accords in all respects with the Code as agreed by all parties and approved by ORR. This has led to dissatisfaction on the part of WSMR as to its position and has precipitated a dispute which has taken the parties, the Panel and ORR some considerable time to resolve.

While ORR is satisfied that WSMR’s position was ultimately unaffected by the process adopted in this instance, this may not always prove to be the case. At the very least, NR’s approach leaves its timetabling decisions vulnerable to challenge. The following informal aspects of the process, in particular, should be addressed:

• Informality in the format, timing, notification and consideration of bids:

The confusion as to the procedural requirements in relation to bidding which has arisen in the present case could be avoided by ensuring that there is a level of uniformity in the format in which bids are presented and that the requirements are made known.

Further, NR should ensure that bids are considered and responses are made in accordance with the formal timetabling processes set out in the Code. As stated at paragraph 63 of the First Determination, there is no obligation on NR to optimise bids since the timetabling process is underpinned by the assumption that the bids submitted by bidders will be optimised bids. Indications of acceptance or rejection of submitted information before the Priority Date have the potential to undermine this process if they lead to the submission of what the individual train operator regards as a ‘compromised’ bid.

• Informal discussions between train operators concerning flexing:

The common practice of negotiation between operators as to flexing is not provided for in the Code and appears to be unnecessary save in cases where the proposed flexing is outside the scope of NR’s right to flex under the Code and involves alteration to a particular operator’s contractual rights. It would therefore be more appropriate for NR first to ascertain both the scope of the relevant train operator’s contractual rights and whether the proposed flex is consistent with the Decision Criteria so as to confine approaches by operators to those cases where they are actually necessary.

NR should also ensure that the basis of its decisions as to whether or not to flex certain train slots is clear to train operators.

• Issue of Timetables:

In the course of oral evidence on the bid and offer process, it became clear that no draft timetable was issued in May 2008. Further, it was unclear whether NR issued a full version of the FWT at the time formal offer letters were sent on 11 July 2008. While these are not allegations relied upon by WSMR and in any event have no causal link with WSMR’s assertion that it should have received train slots with shorter journey times, it must be emphasised that issue of these timetables is a requirement … It is a requirement which enables train operators to make an informed decision as to whether to pursue an appeal of a timetabling decision within the permissible time frame.

If NR or WSMR does not consider the procedure as set out in the Code to be practical, there are processes which can be used to initiate change. Unless and until such processes are used, the procedure set out in the Code should be followed in its entirety. This will ensure that a transparent decision-making process is operated which leaves parties clear as to their respective positions and which is not at risk of being impugned.

(TTP244 ORR Second Determination, paras 58, 59, 60, 61)

[TTP1719 was withdrawn before the hearing date, however it was thought useful to place these extracts in the Directory of Precedents, as this was the first time a Dispute Party had sought to test the principle that the Hearing Chair had the power to strike out a reference before a hearing. Both Directions Letters can be found, in full, on the TTP section of this website. Thus:]

There appears to be no specific provision within the Access Dispute Resolution Rules entitling him [a Hearing Chair] to strike out a Dispute on procedural grounds. He notes, however, that Rule B(5) states that in the event of an objection to a Timetabling Panel the Hearing Chair ‘shall consider the best way to proceed’.

Given the wide case management powers conferred on Hearing Chairs, and in the light of the Principles which include the requirement to ‘allow parties to resolve disputes as efficiently and effectively as possible’ (A3(f)), together with allied Principles, his provisional view is that he is entitled to strike out a claim on procedural grounds if he concludes that as a matter of law it is bound to fail. It must be more efficient and effective to do this than to open a substantive hearing with such an application, but only after the Parties have spent time in order to set out their respective cases.

It must be emphasised that this conclusion relates to the powers of the Hearing Chair, not to the merits of Network Rail’s submission itself.

(Directions Letter dated 24.06.21)

For the reasons explained in my earlier Directions, I remain of the view that a Hearing Chair of a TTP has the power to strike out a case. That power should, however, only be exercised in circumstances in which it is abundantly clear that the claim in the Dispute is legally unsound, or entirely without merit. Even then, a decision to strike out a case must allow for an appeal against that decision.

Network Rail has challenged GBRf’s right to have this Dispute heard, relying on the reasons set out in its e-mail of 23 Jun 21. In summary, Network Rail submits that the subsequent iterations of the Part D process were not formally disputed by GBRf and that its right to have this Dispute heard has therefore been lost.

As a preliminary view, in principle I can envisage circumstances in which an original decision which is disputed is replaced by a decision so substantially different that it would be necessary for an Operator to raise a formal dispute again, although Part D is not explicit on this point. Equally, I can also envisage circumstances in which subsequent amendments to Network Rail’s original proposal are not sufficient to extinguish the initial dispute.

Without any pre-judgment of the outcome, I regard Network Rail’s submission as valid to the extent that it must be tested. GBRf has raised arguments in its response that must be explored before a decision can be reached as to whether the substance of this Dispute should be heard, or whether it should not be allowed to proceed as GBRf’s right to pursue it has been lost.

Given this, there can be no question of my agreeing to strike out GBRf’s claim. In my judgment there is now insufficient time for this to be decided as a preliminary matter, as the hearing is listed for 2 weeks today and the disputed possessions are to take place not long afterwards. Network Rail’s claim must therefore be dealt with at the [start of the] hearing.

(Directions Letter dated 25.06.21)

The TTP remarked that legal issues were to the fore in this claim to a greater extent than in any previous TTP hearing. We also note the heavy use that both ASR and Network Rail have made of external legal advisers. While it is clearly for each party to a dispute to determine how best to put its case to protect its legal and commercial rights, it is self-evident that extensive use of external advisers increases the costs of a dispute. It is also worth bearing in mind that, if one party makes extensive use of such advisers, the other party may feel it has to do so as well. As the Hearing Chair commented, the dispute resolution mechanism contained in the ADR rules and Part M of the Network Code is not intended to operate like commercial litigation and neither the TTP nor ORR is set up to deal with disputes argued in this way. The processes are intended to lead to a legally robust conclusion without being legalistic. We make no criticism of the conduct of any of the lawyers in front of ORR but if these processes start to take on the adversarial characteristics of commercial litigation, we have concerns that it will become increasingly difficult for the TTP or ORR to conduct industry appeals. In future cases, we hope the parties will bear this in mind

(ORR appeal determination of TTP1064, para 59)

[Since this determination, the Part A definition has been revised to “means as set out in Condition D2.1 and 2.1.6”. Custom and practice of many years is that the Working Timetable embraces a number of other key operating documents. This became a decisive question in determining ADP31, where the Panel found that it had to consider the contractual status of the Sectional Appendix. It concluded:]

This document, full title “the Sectional Appendix to the Working Timetables and Books of Rules and Regulations” is NOT given a defined contractual status within the Network Code or a Passenger Track Access Agreement, except insofar as it is incorporated by reference by virtue of its title, and the obligation on Network Rail to produce (under Part D) a “Working Timetable”. The Panel was familiar with the operational use made of the Sectional Appendix; its attention was drawn to a statement by the ORR in March 2006 (order against Network Rail for contravention of Condition 7 of its Licence), which states “the capability of the infrastructure is described in the sectional appendix for a particular part of the network (including such matters as gauge, line speed, and route availability). The sectional appendices are incorporated in the industry network code and are used in access contracts between Network Rail and freight train operators to describe the network covered by the contract. It is therefore important that these documents are accurate”.

The tabulations and format of the various volumes of the Sectional Appendix are then governed by a Railway Group Standard (formerly GE/RT/8004; to be superseded by GO/RT/3215), but the route specific content and detail is the responsibility of the respective management areas within Network Rail.

(ADP31)

It is important to note the nature of the exercise to be undertaken by NR under D2 in compiling the calendar of milestone dates. NR’s task is to compile the actual calendar dates that reflect the fixed formula contained in Network Code D2. There is no scope for exercise of judgement or discretion nor the application of the Decision Criteria by NR. It is a simple mechanical task of compiling calendar dates that reflect the provisions of D2. Network Code D2 does not give NR any unilateral power to choose any alternative date. The only way that alternative dates can be applied is by following the procedures and processes in the Network Code such as a) D2.1.3 whereby change implementation dates may be changed if all Timetable Participants have been informed of, and not objected to, the change and b) changing the provisions of the Network Code, using the processes within the Network Code itself at Part C. These Part C processes involve consultation, CRC voting and approval by ORR.

… the legal conclusion is that there is no entitlement to depart from Network Code timescales until the Network Code itself is changed…

…NR did not, and does not, have any legal entitlement to implement the revised timescales in the Proposal for Change until approval is given by ORR.

(TTP2187, paras 18, 60, 74(i))

In this instance the Train Operator was objecting to two significant possessions because they would prevent certain Ancillary Movements, from an active depot to a suitable storage point, these movements being necessary to clear siding capacity in the depot, to permit the working of two additional revenue earning services. The Panel considered that, in such an instance, the significance of the Rights held by the Train Operator was not that empty wagons could move from point A to point B, but that those wagons could be moved away from point A to some other adequately effective location. The Panel therefore determined that the Train Operator was entitled to train movements that reasonably achieved the function of the normal Ancillary Movements, and that Network Rail was entitled to the Train Operator’s cooperation in implementing such equivalent but different movements.

(TTP04)

The function of the Rules of the Plan [now Timetable Planning Rules] was to provide “rules regulating …the standard timings and other matters necessary to enable trains to be scheduled into the Working Timetable … As has been established (in ttc87, and NV9, NV13, NV17, NV18, and NV26-31) there is a right to challenge changes to Rules of the Route/ Rules of the Plan where such changes will impair bidding for Firm Contractual Rights. Once the consultation process is complete, and any disputes resolved, Bids are only compliant where they are consistent with the Rules of the Plan [now Timetable Planning Rules]. For this reason, the Timetabling Committee upheld an appeal by Arriva Trains Northern against a proposal that detailed timings for network services for the National Logistics Unit (NLU) should be included in the Rules of the Plan [now Timetable Planning Rules]. Such a set of defined paths would be different in kind from the other provisions of Rules of the Plan [now Timetable Planning Rules] “e.g. headways, maximum number of services per hour, and specific requirements to reserve a certain proportion of each hour as “white space” … which … are the means by which reasonable bounds are put on the aspirations of any one operator, in the interests of the smooth operation of the Network”. A set of defined paths for NLU services would in effect be asserting that certain services had a right to be “first on the graph”, and this would be at odds with the general principles of the timetabling process.

(ttc161b)

The Panel concluded that two documents are decisive in this matter, namely, Part D of the Network Code, and in particular Condition D2.1 [now D2.2], and the National Rules of the Plan [now Timetable Planning Rules], and in particular Section 3 “PARTP”. These two documents are interdependent, and it is this interdependence which determines which has primacy in relation to the circumstances of this case. Thus:

• Conditions D2.1.1 to D2.1.7 [now D2.2] prescribe the process and timescales for the annual (and intermediate) review of the whole corpus of Rules … both National and in respect of Territory, Region or Route. This process is, by virtue of its inclusion in the Network Code, directly subject to the scrutiny and approval of the Office of Rail Regulation. However, the process only has significance to the extent that it results in the “applicable Rules of the Plan or the applicable Rules of the Route ” documents which, whilst not directly subject to Regulation, have de facto Regulated status; they depend upon the agreement of the Train Operators, which agreement can be tested through the Access Dispute Resolution process, up to and including Part M appeal to the Office of Rail Regulation.

• Condition A1.4 [now A1.1h] stipulates that “In the event of any conflict of interpretation between this code and an Access Agreement (not including this code) the following order of precedence shall apply: (1) this code; and (2) the Access Agreement”. One practical exemplification of this is that the Rules of the Plan/ Rules of the Route acquire their contractual standing from the operation of Part D, whilst the status of Firm Rights, which derive from a Schedule 5 of a Track Access Contract, are explicitly subject to “the applicable Rules of the Plan or the applicable Rules of the Route”.

• Conditions D2.1.1 to D 2.1.7 [now under D2.2] serve to empower only the “applicable Rules of the Plan and Rules of the Route”. Where those “applicable Rules” require intermediate amendment, Condition D2.1.10 [now D2.2.7] requires and empowers Network Rail to devise, and to obtain the agreement of Train Operators, for a structured and disciplined amendment procedure. This is the basis for Procedure for Altering Rules of the Route or Rules of the Plan other than through the Twice-Yearly Process Having Effect from a Passenger Change Date (“PARTP”).

(TTP194, para 11)

Rules of the Route [now the Engineering Access Statement] need to be overtly related to the number and frequency of possessions that Railtrack intends to take for the purpose of maintaining and repairing infrastructure. Railtrack must be able to demonstrate reasonable justification and to observe the due process and timescales of consultation.

(ttc1, ttc3, ttc35)

The Committee confirmed that a Train Operator, who was proposing “in good faith to enter into an Access Agreement” covering a particular Route [now a Potential Access Party], was entitled to participate in consultation on detailed Rules for that particular Route and that the consultation should include an adequate account of the reasons for the Rules as proposed, in this instance explanation that the work represented a peak in maintenance workload.

(ttc35)

The Committee has emphasised that there should be rigid compliance with prescribed deadlines and observance of due process such as prescribed consultation on changes to the Rules.

Any changes to these Rules should be accompanied by reasons and the subsequent process of consultation should be conducted in a manner which is subject to tests of reasonableness.

Given the relatively short time period allowed for this process, the Committee has suggested, as an example of reasonableness, that it would be helpful if changes were to be clearly identified, for example by the use of highlighting.

(ttc17)

One Train Operator was reassured to learn, at a hearing, that the Rules of the Route for 1998/9 for a section of route in dispute represented a peak of maintenance workload that would permit a significant reduction in blockages associated with such maintenance in subsequent years. That this had not been revealed during the consultation period was seen by the Committee as a “most telling deficiency” in the application of D2.4.2 [now D2.2.6]

The Committee determined that it would expect future consultation on Rules of the Route to take account of the need for a full exposition of reasons and for any subsequent amendments to take account of the preparedness of individual Train Operators to accept short term disbenefit for long term gain. However, the Committee has highlighted the need for care that any bilateral understanding between Railtrack and a Train Operator should not deny other Train Operators the opportunity for comment and, if necessary, reference to the Timetabling Committee before the issue of definitive Rules of the Route [now Engineering Access Statement] in the Bidding Information [now Strategic Capacity Statement]. Indeed the Committee directed Railtrack to take account of this in formulating its proposals for the Rules of the Route [now Engineering Access Statement] for subsequent timetables.

(ttc35)

[Both of the below Determination excerpts were subject to appeal to ORR, and were overturned]

…a Timetable Planning Rule change related solely to a Network Change should not be put into effect before the associated Network Change is implemented.

(TTP371/513/514/570/571, para 5.1)

Timetable Planning Rule changes may not be implemented if the associated Network Change has not been established and implemented under Condition G.10 of the Network Code …

This determination does not prevent Network Rail proposing TPRs changes but these should be conditional upon the Network Change being established and implemented, and the changes to the Rules need to state whether TPRs changes are subject to the implementation of Network Changes.

This determination does not remove the onus upon Network Rail and Timetable Participants to discuss and to agree TPRs values in the absence of established Network Change.

(TTP807/808, paras 6.1.1, 6.1.2, 6.1.3)

It is … our view that the TTP’s statement that all available sources of information should be used, is to be read in conjunction with the TTP’s finding that ‘… professional judgement must be applied in assessing which inputs are likely to be useful …’. This recognises that, having applied its professional judgement, there may be reasons why Network Rail decides not to use all sources available to it. A decision not to use all possible sources does not automatically mean the changes are therefore unreliable and should not be implemented.

(ORR Appeal of TTP1064, para 23)

Rules of the Plan [now Timetable Planning Rules] have to be properly consulted on by the parties in accordance with Part D.

The case for making changes to parameters like Sectional Running Times, and responsibility for associated research, lies with the party wishing to make the changes; implementation should be through Part D.

It is not sufficient for Railtrack and Train Operators simply to agree the data to be used; it must have justifiable foundations; it cannot be moonshine. It may also be appropriate for an x% contingency allowance to be added to provide further robustness provided this is accepted and agreed by the parties concerned. If it is demonstrable that the calculated data is not fit for purpose and is inferior to practical or historical data, then the parties may wish to agree to adopt the latter.

(ttc02, ttc09)

If, as a consequence of a Network Change, whether or not a function of Safety considerations, the SRTs become inappropriate for the capabilities of the Network, then the SRTs should be amended in accordance with the prescribed Rules of the Plan [now Timetable Planning Rules] procedures. Such process of amendment is not to be undertaken without due regard to the impact upon Firm [Contractual] Rights.

(ttc93, ttc109/110)

The Panel considered the standing of the EEA document, and found that

• it has no contractual force within the context of the individual Track Access Agreements; however

• the objectives that it is intended to fulfil have significant industry support; and

• by their nature any such statement of guidelines will inevitably be taken into account in any objective assessment of the reasonableness of Network Rail proposals; that said

• the RoUs in dispute in this case appear to conform to the letter of the relevant part of the EEA for the WCML.

The Panel … supports the view that the principles set out in an EEA statement will inform the deliberations prescribed in Condition D2 but will not override, or substitute for them.

(TTP271, paras 18, 23.4)

The Panel noted and understood the motives of WCT in seeking to have this matter addressed early, because of its concerns about the operation of Condition D during the Timetable Finalisation Period. The Panel considered that:

• this dispute relates to the firming up of the Rules of the Route; WCT is entitled to pray the detail of its Firm Rights in aid of an argument that a specific possession should not be granted. However, once a final decision has been reached (including as a consequence of any recourse to the appeal procedures in Condition D5), any translation of the Firm Rights into Train Slots is subject to the Rules of the Route [now Engineering Access Statement].

• to the extent that WCT’s concerns related to a fear that … it might be prevented from achieving a satisfactory pattern of (diverted) Train Slots, because of commitments made to other Train Operators, it (the Panel) would need to bear in mind that [the right] conferred upon Network Rail … to vary Train Slots “in order to give effect to a decision of the relevant ADRR panel or the Office of Rail Regulation as provided for in Condition D5”.

(TTP271, para 17)

The fact that track maintenance, or renewals, programmes may be in arrears does not mean that Network Rail can presume that it can vary the Rules without risk of challenge by Train Operators. It is however incumbent upon the individual Train Operator, whose Firm Rights might be curtailed if a proposed change became incorporated into the Rules to challenge and dispute the proposal. Such challenge must be made in accordance with the processes and timescales laid down in Part D.

(ttc180, ttc194)

[On a number of occasions where a Train Operator and Network Rail had been in dispute in relation to the impact of diverting services in order to accommodate works on the regular route, Train Operators had sought to require Network Rail to carry out a complete timing exercise to support assertions that may be made at consultation. Neither Panels, nor Panel Chairmen (when issuing directions) had supported this approach. However, this position had been adopted only in the expectation that parties were in a position to honour their respective forecasts and/or commitments. Thus:]

The Panel is prepared to accept the “confidence” of Network Rail as an undertaking, based on professional judgement, that it can, and will, discharge its responsibilities to provide its Train Operator customers with adequate diversionary routes. It is, after all, Network Rail that is responsible for honouring such commitments. At the same time, the Panel must give equivalent consideration to the professional judgement of EWS when, at paragraph 7.6, it asserts that circumstances “may result in EWS’ customers taking their business elsewhere”. It is, after all, EWS that has the experience, and the accountability, for dealing with customers that (unlike those of Network Rail) do have alternative suppliers to turn to.

In an appeal such as this, the professional judgements of the parties are an inevitable input to the Panel’s balancing of the Decision Criteria. The Panel has therefore to assume that the parties, in offering those judgements as factors for the Panel’s consideration, are making implied commitments in relation to the Panel’s determination. Thus, in this case,

• if the Panel accepts Network Rail’s confidence, and agrees that it will not direct Network Rail to “carry out prematurely detailed evaluations or planning exercises” it is on the understanding that Network Rail has committed itself to providing the necessary train slots or facilities. Equally,

• if the Panel accepts EWS’ assertion, and therefore upholds its appeal against the proposed Rules of the Route [now Engineering Access Statement], it is on the understanding that EWS has every expectation that the train slots in question will, on the days or weeks be required for the passage of real flows of traffic.

(TTP03, paras 40, 41)

[This theme was revisited under TTP271:]

…whereas it may not be a sensible use of Train Planning resources to require Network Rail in every instance, to carry out full planning exercises to demonstrate that diversion Train Slots can be made available, where, as in this specific case, Network Rail, on the basis of other information and experience is prepared to commit to a standard of alternative provision, then Network Rail is to be encouraged to make that commitment at the earliest realistic date, and so enable timetable and resource planning to commence earlier.

(TTP271, para 22.6)

The Panel does not say that changes to station dwell times must always be considered alongside Sectional Running Times; having said that, there will need to be a good case for dealing with them separately

(TTP1630, para 76)

It may well be that there had been some unanticipated cumulative effect of individual items of Network Change on the … route over recent years which is now giving Network Rail cause for concern regarding performance delivery, but there had not been demonstrated any contractual entitlement to revise the Timetable Planning Rules (with the consequent potential for reduction in capacity)…

It is not the function of a Panel to punish any party but unilateral changes to the Timetable Planning Rules which have not been subject to proper consultation cannot simply be endorsed by a Panel, as that will risk fossilising possible reductions in the capacity of the Network. Whilst recognising the importance of performance, the Panel was conscious of the need for determinations to seek to deliver all the objectives of the Network Code, including those related to capacity, whilst in particular ensuring that the contractual rights of Access Parties are respected.

(TTP371/513/514/570/571, paras 4.2.6, 4.2.7)

EWS has no entitlement to the inclusion into a timetable of a Train Slot which cannot, for reasons of lack of access rights to a key terminal, operate at any defined future date;

(TTP10, para 20.1)

With regard to the … concept of an “expectation of rights” used both as a potential ingredient of an Access Proposal under Condition D2.4.1(a) and in relation to allocation of priority under Condition D4.2.2(d)(iii), I concluded that the onus is not on a genuine and bona fide Timetable Participant relying in its Access Proposal on an ‘expectation of rights’ rather than Firm Rights and/or Contingent Rights, by virtue of any provision of the Network Code or otherwise, at the time of its PDNS to substantiate positively that it has such an expectation, by pointing to some particular action taken or stage reached by it already in the regulatory process for applying for Rights. Clearly an already submitted Section 22A application to ORR is not a necessary constituent of an expectation…

Consequently if [Network Rail] wished to challenge an obviously serious Timetable Participant’s bona fide expectation of rights, … the onus would lie with [Network Rail] to provide some positive proof of the lack of such an expectation, rather than the other way round.

(TTP834, paras 6.4.2, 6.4.3)

… the Panel noted that if a Train Operator required the Train Slots concerned to continue beyond the six months limit, it would need to obtain Firm Rights approved by the Office of Rail Regulation. In the specific case of 4R60/61, as Network Rail had confirmed that it would not support the inclusion of these Train Slots in the final submission for FL’s 5th Supplemental Track Access Agreement, the practical effect would be that

• once the six months period had been exceeded (i.e. on 8 March 2009) , the Train Slots would no longer be underpinned by any access rights at all and that, therefore,

• Network Rail would be entitled to remove such Train Slots from the 2009 Timetable, on the authority given in Condition D1.6.2. [now D8.4.1]

(TTP257, para 18)

As was agreed at the hearing, the submission of SWR’s Alternative Proposal was a TOVR; as such it lost the priority accorded to SWR’s PDNS bid. It appeared to the TTP that neither Party had considered the legal consequences of the actions which they had taken, including the effect of the loss of PDNS priority. The TTP accepted that both Parties were acting in good faith throughout, but that cannot affect our conclusion on the consequences of their decisions in this Dispute.

(TTP1625, para 41)

Condition D2.7.1 requires Network Rail to have made a final decision on the New Working Timetable, which it intends to implement as the Working Timetable on the Timetable Change Date (subject only to variations made through the appeal process and Condition D3 processes). The timetable on which that final decision is made must be published by D-26.

By D-26 Network Rail must reach a final decision, providing certainty for Timetable Participants that there will thereafter be changes only through appeals and through the limited processes set out in condition D3.

We see no basis under the Network Code for revising the New Working Timetable once Network Rail has made a final decision and published the timetable (other than as permitted through appeals or Condition D3).

(ORR Appeal Determination of TTP1331/1376, paras 115, 119, 143)

The Committee has emphasised that there should be rigid compliance with prescribed deadlines and observance of due process such as prescribed consultation on changes to the Rules of the Route/Plan [now, the Rules].

It has also reiterated that Railtrack should distribute in a timely fashion to each Train Operator the information that effectively forms the complete set of offers to all Operators. Where a Bidder receives a decision from Railtrack after the end of the Decision Period then the period of 7 days [now five Working Days, D5.1.2] permitted for the making of a reference to the Committee applies from the date of receipt of the decision.

Where parties have engaged in thorough dialogue with a view to resolving differences, such discussions must not be allowed to proceed beyond dates laid down for having made any appeal to the Timetabling Committee, else the Timetable Development process can be compromised, and the Committee’s discretion in respect of the available options curtailed.

Where Train Operator and Railtrack are agreed that there is a need for more time to resolve differences in respect of proposals for change to the Rules of the Route/ Rules of the Plan [the Rules], and such time can be found without any jeopardy to the Timetable Production Process, the Timetabling Committee may be asked to agree specific revised appeal timescales and conditions, varying those set out in Part D.

Where Railtrack is asserting in respect of changes to Rules of the Route [Engineering Access Statement] that certain works are necessary, in order to ensure that there is improvement of Network Quality against quantified indices of performance, it is reasonable that, in order to answer, or pre-empt, any challenge from an affected Train Operator, Railtrack should be required to present an assessment of the extent of the improvement that is planned to accrue from the disruption.

(ttc18, ttc129 para 3, ttc161A, ttc161C para 8)

Where, as a necessary consequence of proposals in respect of changes to the Rules, a Train Operator is to experience significant disruption of services, then it is reasonable for the Train Operator to expect Railtrack to provide, with the minimum of delay, the following information and assurances:

• Confirmation of the extent to which timetables that fulfil rights will be disrupted;

• That account has been taken of the nature of traffics to be affected, including where the traffic is seasonal (e.g schools traffic), that the works are timed to coincide with least demand;

• That the works will make maximum use of periods when no trains are scheduled;

• That where the disruption is to be significant and prolonged the works will also address any reasonable improvements to the Network.

In all of these considerations, the parties should ensure that questions are posed, and answers given, to timescales that do not constrain the timetable production process. In particular it is not appropriate that discussions are prolonged beyond the making of a reference to the Timetabling Committee, where the result is to delay any hearing to a date where possible adjudications may be constrained by the need to respect the timetable production schedule. Both parties have equal responsibility in ensuring that references are made in reasonable time.

(ttc151, para 11)

ORR considers that Condition D2.7.2 provides the TTP with jurisdiction to consider any issue which it is necessary for it to consider to properly determine a Timetable Participant’s appeal against the New Working Timetable…

(d) In determining a particular appeal against the New Working Timetable, it may be necessary for the TTP to reach a conclusion on points relating to the interpretation or operation of the Network Code which might be relevant in future timetable preparation or disputes…

(e) If it is necessary for the TTP to form conclusions on such points to determine the appeal, it must do so. Such determinations then form persuasive authority in any future appeal…

(h) … in order to consider an appeal, the TTP must necessarily conclude what is the New Working Timetable published under Condition D2.7.1 which should be treated as the timetable which is capable of appeal. The TTP cannot make a determination without having formed a view on the timetable which is the relevant starting point for the purpose of the appeal process.

… despite having jurisdiction to come to conclusions on matters of contract, points of principle and the production of the New Working Timetable, … the TTP’s jurisdiction is limited to determining the appeal against the New Working Timetable. The Network Code does not empower the TTP to make binding pronouncements on the interpretation or operation of the Network Code, or on the compliance of Network Rail with its contractual obligations, to the extent not necessary for it to determine the appeal before it against the New Working Timetable.

(ORR Appeal Determination of TTP1331 & TTP1376, paras 95, 96)

… the Panel noted that if a Train Operator required the Train Slots concerned to continue beyond the six months limit, it would need to obtain Firm Rights approved by the Office of Rail Regulation. In the specific case of 4R60/61, as Network Rail had confirmed that it would not support the inclusion of these Train Slots in the final submission for FL’s 5th Supplemental Track Access Agreement, the practical effect would be that

• once the six months period had been exceeded (i.e. on 8 March 2009) , the Train Slots would no longer be underpinned by any access rights at all and that, therefore,

• Network Rail would be entitled to remove such Train Slots from the 2009 Timetable, on the authority given in Condition D1.6.2. [now D8.4.1]

(TTP257, para 18)

The Committee therefore determined that:

• 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;

• the arrangements that Network Rail had stated that it proposed to take to strengthen the Access Planning capability, appeared appropriate, and should be implemented;

• 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

• 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.

(NV50, para 6)

…the elements of information which Network Rail should provide to a Timetable Participant in order to achieve compliance with Network Code Condition D3.4.10(b) are:

(a) available capacity through the restricted area and over alternative routes;

(b) proposed allocation to individual operators normally operating through the restricted area or on diversionary routes;

(c) impact of (a) and (b) on journey times, rolling stock required (for, e.g. performance or passenger capacity), service groups, demand for services catered for where possible and, in the case of a multi-Route operator, impact on other services across the Network;

(d) impact on the commercial and contractual obligations of a Timetable Participant.

These elements are indicative and not prescriptive. The approach of Network Rail must remain one of taking into account the provisions of, in particular, Conditions D2.5 and D4.6.

(TTP773, para 6)

In my view, to amount to “consultation” at all there must be communication with all affected parties and a two way discussion on the issue, with both sides to the consultation being sufficiently informed as to the subject matter. It is clear from NR’s submissions and its answers given in Q\&A during the Hearing that such communication and discussion did not take place with GBRf at least, as regards the impact of the Week 32 Possession whether solely on GBRf or relatively on all affected parties.

(TTP1521, para 66)

The only evidence HEOC relied upon was the fact that NR had not explicitly informed it in the initial proposals made pursuant to Network Code D3.4.7 that the impact of the restriction would reduce its service from 4tph to 2tph. NR says that it was not obliged to do so at that time. I agree with NR. A proper construction of D3.4.7, read in conjunction with D3.4 as a whole, does not impose that obligation on NR. Further, the restrictions and the pattern of them had been the subject of discussions and meetings with TOCs for several months and the implications were fairly clear. If upon receipt of the proposal HEOC had any doubt or concerns about the implications arising from it, it could of course have raised a question. I infer that HEOC as a skilled and experienced TOC will act with a degree of skill, diligence, prudence and foresight. The moreso where a potential Restriction of Use may impact or limit the number of trains it might run,

(TTP2244 et al, para 57)

A Network Rail variation includes blocking a section of the Network that is presently unused, but “the absence of any existing use or disruption is a factor which may have a bearing upon the extent of NR’s duty to consult … as well as its weighting of the Decision Criteria”.

(TTP1880, para 52)

“While D3.4.8 requires NR to seek the agreement of [Timetable Participants] to proposed Network Rail Variations, the draftsman must have had in mind the real possibility of agreement not being reached … I conclude therefore that the real purpose of D3.4.9 is to come into play where agreement cannot be reached … However one interprets it, it confers a very broad-ranging power on NR …

My interpretation is that this power can be used even if NR has failed to consult affected [Timetable Participants], and the use of ‘Train Slot’ must have envisaged flexing WTT services. It is, therefore, a very broad power, but it complements the D4.4 provisions, rather than competing with them.

Whatever solutions are adopted, however, the concerns of a number of Parties about any ‘free for all’ emerging from STP planning are recognised. It was concluded that the correct application of D4.6 would prevent any ‘free for all’ of this kind.”

(TTP2318 TTP2320, paras 71, 72, 73)

The Chair issued guidance as follows:

That a Capacity Study is formally required in circumstances such as this, to enable Access Beneficiaries being asked to agree to Restrictions of Use to understand which of their scheduled services can be accommodated on the Network, whether by diversion or single line working, to enable them to respond appropriately before Network Rail reaches any Decision on Restrictions of Use.

That Network Rail should note that proper consultation under D3.4.8 should necessarily also include train operators who could be indirectly affected by significant train diversions, in order to give it more options in providing alternative capacity where it might reasonably be necessary (as provided for in D3.4.12).

That Network Rail should be reminded of the need to understand the commercial interests of its customers, which appears not to have been the case here. The ORR’s Determination of TTP102 is a useful tool for possession planners. Within possession planning Network Rail is reminded of the need to follow the provisions of the National Timetable Planning Rules, especially 6.1.1

(TTP1706/TTP1708, paras 87.3, 87.4, 87.5)

“Given this finding, in the development of the Short Term Plans for Week 40 in each case, the Claimants were entitled to expect Network Rail to use its best endeavours to achieve the Objective, applying the Decision Criteria to all Decisions made by Network Rail. This might require Network Rail to flex the services of both directly affected operators and any operators indirectly affected by the Restrictions of Use necessitating the Variations. For clarity, there is no ‘duty to flex’ as such, but Network Rail’s consideration of the ways in which it can achieve the Objective in any instance of Short Term Planning must extend to identifying where flexing, either by applying the defined Flexing Right or by using any other powers in Part D entitling Network Rail to flex services, will enable it to achieve the [D4.6] Objective, and to use all the powers available to it in such cases.”

(TTP2318 TTP2320, para 83)

Any introduction of late possessions has to be the subject of tests of reasonableness; as to the nature of the proposals, the circumstances behind the lateness, the available alternatives and the extent of detriment to Train Operators.

(ttc232)

The operation of Network Code Part D relies on clear and precise compliance with all the laid down procedures. This in turn implies the careful recording of all material decisions”.

[All such processes may be subject to error; however the correction of any error has to be undertaken within the same disciplined processes as the original error, using the appropriate formal amendment procedure, and allowing all the concomitant appeal rights. Thus:]

Given the disciplined nature of the Timetabling process, it cannot be acceptable that the formal amendment procedure can be dispensed with, or that the rights of appeal of a Train Operator can be curtailed, by the making of a simple assertion, by Network Rail, that an error has been incorporated into the published CPPP. By the same measure it is not open to a Train Operator to bring a matter to appeal, beyond a due date, citing as grounds that its previous failure[to appeal] was also “an error”.

(ttc251, paras 19, 18.3)

For the avoidance of doubt, Network Rail is to understand that the Committee does not take kindly to situations, such as this, where, because past failures of planning and/or delivery of works have narrowed down the scope for discretion, the potential outcome of disputes is constrained.

(ttc265, para 12)

[PARTP stood for “Procedure for amendment of Rules and amendment of scheduled Train Slots” and has been replaced by Conditions governing Rules “Variations”. Thus:]

…a failure by Network Rail to complete preparatory works should not constitute for Train Operators an “emergency situation” such as contemplated in PARTP 3.1.3 [now D3.5]

Network Rail’s entitlement to modify the Rules of the Plan/ Rules of the Route [now TPRs and EAS] is limited to the discretions set out explicitly in PARTP. PARTP as currently drafted, must be assumed to reflect the wishes of the larger rail industry; as such it does not confer on Network Rail any entitlement within the contract structure of Track Access to impose change unilaterally, and without the prescribed consents of affected Train Operators;

…By way of clarification, and for the avoidance of doubt, the Panel offers the following guidance to the parties to this dispute;

PARTP represents the translation into practical processes of certain duties and obligations imposed upon the parties by the Network Code; to the extent that, as in paragraph 3.1.3, it contemplates some derogation from its general applications, it should be understood that that derogation only relates to narrowly defined pre-conditions, and does not imply that PARTP is merely a basis for negotiation;

any non-compliance with PARTP is a breach of a contractual obligation unless preceded by formal amendment of PARTP…

it might assist those involved in the detail planning of engineering works if they were asked to consider that compliance with PARTP is an obligation that exists to protect the customers of Train Operators from unwarranted and short term disruption, and that, in that regard, PARTP is to be treated with the same deference in relation to the Track Access Contract, as Railway Group Standards are in relation to engineering matters…

(TTP194, paras 22, 23)

The Panel took cognisance of the fact that FL was currently operating Train Slots 4R60/61 as Spot Bid Services. Network Rail grants the right to operate such Spot Bid Services by virtue of the Offer that it makes in response to a Spot Bid … However, under the terms of paragraph 2.5 of Schedule 5 to FL’s Track Access Contract the right to operate Spot Bid Services is time constrained (“The duration of any Spot Bid Services shall not exceed six months”). This limit applies even if the Spot Bid in question has been described as a “rolling Spot Bid”; this is a “custom and usage” term that has no defined contractual status.

In this case, the Panel finds that:

• Network Rail is expected, even in its treatment of Spot Bids to maximise use of Network capacity. This includes flexing of Spot Bids to maximise remaining “white space”;

• line capacity on the Felixstowe Branch, and Loading Capacity in the Port of Felixstowe are both known to be constraints on the number of Train Services that can be operated, requiring carefully considered judgements as to how increases are achieved;

• … In the situation where a number of Freight Train Operators may be responding to the same traffic invitation to tender Network Rail may reasonably engage in appropriate, and even-handed, dialogue to establish the feasibility of alternative proposals, and, where practicable, to protect itself from allocating resources in ways that may potentially frustrate a third party contracting with the Train Operator of its preference.

That said, the Panel is being asked by both GBRf and Network Rail:

• to accept that a situation has been created whereby a Train Operator (GBRf) that has secured, through an agreement with a third party (FDRC), traffic new to rail, cannot operate that traffic until the two Train Slots concerned can be flexed or removed from the WTT to make room for two others, and,

• to intervene and issue directions that such a change can be effected.

In effect therefore in making this reference to the Panel, both GBRf and Network Rail are seeking a determination on the basis that:

• Network Rail acknowledges that, in making the Offer to FL for the Train Slots 4R60/61, it has acted in a way that it might not have acted, had, at the time of making that Offer, it been in fuller possession of the facts presented to the Panel;

• the contractual checks and balances within Part D of the Network Code prevent Network Rail revoking or modifying any Offers, unless all parties affected are in agreement, or unless an external authorised body (in this case this Panel) issues the necessary determination.

The Panel therefore determined, that, in respect of each of the issues raised by the parties, as follows:

• Network Rail is not entitled, or empowered, of its own authority, to remove FL’s right to use Train Slots 4R60/61 during the remaining term of the first 6 months for which Network Rail made an Offer on 26th August 2008. FL’s rights to access these Train Slots must, in the absence of the conclusion of an appropriate Supplemental Track Access Agreement, lapse when the rights conferred by the Spot Bidding process lapse. The Panel interprets the date of that lapsing to be 6 months after the date at which the Train Slots were first incorporated into the Working Timetable, (i.e. 6 months after Monday 8th September 2008).

(TTP257, paras 17, 18, 19, 20, 28)

ATW’s Access Proposal for the … December 2015 Timetable was a valid bid for those Train Slots. It had already been validated as TPR compliant by being accepted into the May 2015 Timetable and there were no other objective technical reasons for its rejection from the December 2015 Timetable. The decisions to be made by Network Rail – including any of NR’s internal organs – in discharging its contractual and regulatory obligations within the rail industry are required to be objective, in accordance with the relevant contracts and regulations, not subjective …

… under the Network Code as presently constituted and incorporated in Timetable Participants’ Track Access Contracts, NR is not entitled to reject an otherwise contractually compliant Access Proposal other than in accordance with the relevant provisions of the Network Code for the time being in force.

(TTP834, paras 6.4.1, 8.1.5)

With regard to [Network Rail’s] published processes and criteria for “selling” Rights, including its SOAR Panel, I drew … attention that the Network Code in Condition D4.2.2 specifically implied an overriding principle that it did not have the right to refuse an otherwise compliant Access Proposal; this said “Network Rail shall endeavour wherever possible to comply with all Access Proposals submitted to it” etc. … I concluded that there is nowhere whence it can derive any contractual entitlement not to sell an access right in cases where there is specific technical capacity (in the sense of TPR compliance) and no operational conflict.

The published terms of reference of the SOAR Panel … are primarily “To authorise sales of track… access rights… including any decision not to sell rights when sought through the Section 17/22A process”, and to that end to check or consider a wide range of issues and matters, including consistency with “policy and any regulatory considerations” and “performance and deliverability issues”. However they nowhere mention contractual compliance with operators’ track access agreements incorporating the Network Code … A decision by [Network Rail] to reject a train operator’s bid for Train Slots which are available and TPR compliant, on the basis solely of a decision by the SOAR Panel (according to its terms of reference) that it does not wish to “sell” the relevant rights, is likely to constitute a breach by [Network Rail] of that train operator’s track access contract.

In their present form, the Part D processes do not confer a discretion on [Network Rail] determine whether it wishes to “sell” Rights at all, whether on general grounds of caution as to potential network congestion, service recovery or industry reputation, or in any way otherwise than on the basis of compliance with the TPR. It is the function of the TPR to denominate the configuration and technical characteristics of services, and of their relationship with each other, that can safely and productively be accommodated within the known existing capacity and other parameters of the Network.

The SOAR Panel is an appropriate internal Network Rail process to assess its views on the granting of access rights in the wider context of its stewardship of the network as a whole, but it cannot override the contractual obligations to which [Network Rail] is subject for the time being.

(TTP834, paras 6.4.4, 6.5, 7.3, 7.5)

The Panel found that the provisions in Network Code Condition D3.2.3 [now D4.2.2], and the range of factors embraced by the Decision Criteria (Condition D6), all implied that Network Rail had the discretion to include all such Train Slots in the Timetable as might sensibly be expected to operate in the currency of the relevant Timetable. By contrast, a Train Operator, whilst it may reasonably expect to see evidence that Network Rail is catering for all realistic possibilities, has no entitlement to require Network Rail to make binding commitments, by way of allocation of Train Slots, when the Train Operator does not have the wherewithal to operate the service for which it has bid.

(TTP10, para 16)

[Network Rail must use its Flexing Right before rejecting Train Slots, and be able to demonstrate that genuine conflicts exist before rejecting said Train Slots. Thus:]

As a matter of legal entitlement (or principle): Network Rail is in breach of contract in that, in rejecting Freightliner’s Access Proposals for each of the eight Train Slots the subject of this dispute at a Timing Load of 1600 tonnes, it has failed to carry out the task required of it under Condition D4.2.2 … Network Rail’s failure in this respect is constituted, on its own admission in the course of its submissions to and in the course of this Hearing, by its having chosen not to exercise its Flexing Right to the fullest extent of its entitlement in order to resolve anticipated but unproved conflicts between the rejected 1600 tonne Timing Load Train Slots of Freightliner and Train Slots requested by other Train Operators for the December 2019 New WTT.

(TTP1520, para 105)

In my judgment it is only when Network has exercised its contractual rights to flex and is still unable to accommodate all requested train slots that D4.2.2(d) is engaged. I find that accords with the words used and that it accords with commercial and practical common-sense. Given the detailed nature and drafting of the Code, I consider that if a tighter construction of the expression was intended, as argued for by Avanti, a different form of words would have been adopted. I can see no reason why the additional words or clarification suggested by Avanti should be implied.

For these reasons I prefer Network Rail’s construction. The question of priority does not fall for consideration. Accordingly, the Panel did not require to consider the nature and import of the rights of WMT and MbR that may have impacted on the decisions to flex some of Avanti’s services.

(TTP1610, paras 23, 24)

[In its earliest years of operation the Committee was asked to determine in circumstances where Access Parties had consented, without benefit of formal amendments to contracts, to flexing of rights beyond the scope of their contractual rights, which at the time were still able to be tightly prescribed, e.g. clockface departure times. The following two determinations served to give the parties notice of the potential hazards of such behaviour]

In giving general directions the Committee did include a proviso that “where services are to be flexed, the amount of flex should not exceed any flex that would have been allowed by the relevant Track Access Agreement … unless the Train Operator affected has otherwise duly agreed the flex”.

In respect of trains where there had been previous tacit acceptance of a degree of flex exceeding that to which Railtrack is entitled, then this could reasonably be interpreted as a preparedness on the part of the Train Operator to accept some amendment to the Access Agreement. However, Railtrack is not entitled to presume that such acceptance in one Timetable would also apply in a subsequent Timetable; nor is it relieved of the responsibility … to consult properly in each and every instance where it has exercised a Flexing Right.

(ttc12, ttc93)

In circumstances where works require Network Rail to make a choice between several Train Operators as to which should bear the greater share of detriment from the proposal, a Committee/Panel will look to see practical evidence of constructive dialogue with all the affected parties.

(ttc252, para 15, 19.2.2)

The Panel considers that Network Rail has not, in this instance, and in relation to its advocacy of the particular form of 2TTR [a Two Track Railway Timetable], properly understood the function of the Decision Criteria, or the limits of Flexing Rights. Thus …

• a Flexing Right is not available other than in the circumstances specifically contemplated in the definition of the term, namely,

• in preparation of the First Working Timetable [now New Working Timetable] or in responding to a Spot Bid [now Train Operator Variation Request], in which case limited to options that are “consistent with the Firm Rights (if any) of the Bidder” [now evaluated Firm Rights of the relevant Timetable Participant]; or,

• where there may be cause to vary an accepted offer, to comply with directions from an Appeal body … to accommodate certain kinds of special passenger service, or

• to accommodate a Restriction of Use included in the Rules of the Route [now Engineering Access Statement], where a Train Operator has failed to bid [appropriately].

(TTP324, para 36)

The Parties agreed, and the Chair determined, that NR’s Flexing Right in relation to the Timing Load for Exercised Firm Rights is a minimum obligation to offer the Timing Load associated with the Right. Conversely, an operator has a maximum legal entitlement to that Timing Load, and no more.

(TTP1520, para 56)

The starting point for the Panel’s considerations is that responsibility for best use of the Network, and for ensuring that it is the most efficiently renewed and maintained is, subject only to the overall approval of the Office of Rail Regulation, the exclusive responsibility of Network Rail. To find therefore against Network Rail, the Panel would have to be satisfied that Network Rail had failed in the execution of one of the procedures to which it is contracted through the Track Access Agreements and the Network Code, or that it had frustrated a specific right of one or other Train Operator, or that it had made a capricious decision which did not take into account either the facts of the case, or the guidance embodied in … the Decision Criteria.

(TTP271, para 15)

The Panel considers that Network Rail has not, in this instance, and in relation to its advocacy of the particular form of 2TTR [a Two Track Railway Timetable], properly understood the function of the Decision Criteria, or the limits of Flexing Rights. Thus,

• the Decision Criteria only come into any force in those circumstances explicitly contemplated by the Network Code, where there is the potential need for Network Rail to exercise its discretion in relation to possible conflicts of priorities, for example

• as between the Firm Rights of two or more Train Operators, … or

• as between the Firm Rights of any Train Operator and those of Network Rail …

In either case, recourse is to be had to the Decision Criteria as providing the benchmark for deciding which of several permissible courses of action is the better justified. The Decision Criteria cannot be prayed in aid as a reason for initiating a new policy, or for circumventing provisions within the Track Access Contract.

(TTP324, para 36.2)

Various provisions of Network Code Part D require Network Rail to have ‘due regard’ to the DC. This language by itself is not of much assistance in determining how the DC are to be evaluated and applied in any particular instance, since ‘due’ is a relative term that only has any meaning in relation to a suitable given benchmark. Up till now neither the Network Code nor precedent TTP determinations on the point have offered such a benchmark …

I [am] assisted by … the new Decision Criteria section of the Network Code effective from 1 October 2010, contained in new Condition D4.6. This reflects a welcome change of language in the whole of the new Part D, whereby NR is now required simply to ‘apply’ the DC in appropriate circumstances, rather than have ‘due regard’ to them. In evaluating the former version of the DC for the purposes of this Determination, I propose to interpret ‘have due regard’ accordingly.

Many of the Decision Criteria, in both the old and new versions, are in direct conflict with each other, in that they cannot all be satisfied at the same time. Some Criteria however conflict not so much with each other but internally, that is, in the application of the same Criterion to different parties and in differing circumstances. Any system adopted to rationalise their application must at least accommodate both these distinct kinds of conflict.

For the first time the new Condition D4.6 goes some way towards recognising and accommodating the fact that there are two different ways of applying the DC. First, NR “must consider which of the Decision Criteria are relevant to the particular circumstances and apply those it has identified as relevant so as to reach a decision which is fair and not unduly discriminatory as between any individual affected Timetable Participants or as between any individual affected Timetable Participants and Network Rail.” Secondly, “Where, in light of the particular circumstances, Network Rail considers that application of two or more of the relevant Decision Criteria will lead to a conflicting result then it must decide which is or are the most important Decision Criteria in the circumstances and when applying it or them, do so with appropriate weight.

At least two weighting systems are therefore possible: weighting the relevance and degree of satisfaction of each individual Criterion in a scale relative to the others, in its application to all potentially affected parties in the particular set of facts under consideration; or weighting the extent to which the application of each relevant Criterion favours the position taken by one dispute party or another …

The exercise thus becomes entirely one of assessing and balancing the practical merits of the parties’ various competing interests in relation to the application of the single relevant Criterion, rather than comparing the merits of competing Criteria.

(TTP376, TTP377, paras 8.5.1 - 8.5.6)

The Decision Criteria … do not specifically include a provision that Network Rail must comply with its Licence obligations, although clearly criterion (a) (“sharing the capacity […] of the Network […] in the most efficient and economical manner in all the interests of all users of railway services having regard, in particular, to […the proper maintenance, improvement and enlargement of the Network”] requires similar considerations to those covered by the General Duty. ORR underlines that it was the Panel’s role to determine whether Network Rail correctly applied the Decision Criteria, not to determine whether Network Rail was in breach of its Licence Conditions.

(ORR appeal determination of TTP337, TTP359, TTP382, para 70)

… strategic initiatives such as TRIP, will not normally engage the individual Considerations … in the Decision Criteria … the Decision Criteria should be applied to each change made by Network Rail to TPRs … it is not sufficient for a party to make generalised claims about a failure of process without substantiating that claim with the specific examples where it alleges Network Rail has failed to meet its obligations.

(ORR appeal determination of TTP1064, paras 27, 28)

I have mentioned above that whilst purportedly applying the Decision Criteria to its compilation of the New WTT for December 2019, Network Rail appears to have developed reliance on two new complementary principles which are outside the Considerations and, if anything, contrary to the Objective. These are, first, to avoid making too many changes collectively, via Flex or otherwise, to existing services or new Firm Rights of Timetable Participants; and second, not to alter or disrupt the ‘fundamental’, or ‘underlying’, structure of the Timetable. Having discovered these principles NR has found itself in the position of having to shoehorn them into being complementary to a proper application of the Decision Criteria, which of course they are not. The purpose of these principles is, it seems, to address a situation which may arise as use of the railway network grows - the possible overselling of capacity. NR may have found itself in the position … that having ‘oversold’ rights it is likely to be in breach of contract to at least one of its purchasers. So it seems that, whilst it is not appropriate to use the Decision Criteria to resolve whose Firm Rights to Flex within their contracts, NR may have to use the Decision Criteria to decide whose contract to breach in a situation where it must breach one or other party’s contract.

Obviously, it is not ideal for NR to find itself in this position, and ORR is there as a regulatory safety net to prevent it arising by reviewing the grant of Firm Rights in TACs. Behind this structure, however, it is clear that considerations of capacity and structuring the timetable are matters to be taken into account at the stage of the grant of Firm Rights – which is the stage policed in advance by ORR – rather than the implementation of Firm Rights – contractual – already granted. For NR to interpret the existing Network Code conditions as giving it a right, or obligation, to use the Decision Criteria (let alone more nebulous principles) to address capacity etc. issues with already granted Firm Rights, would be to give it a second ‘bite at the cherry’ – in effect to introduce by the ‘back door’ another kind of defeasance, i.e. nullification, of already granted contractual Firm Rights, but on undefined policy rather than legal grounds.

(TTP1520, para 102, 103)

In my view the proper, and essentially pragmatic, interpretation of this issue lies somewhere between the above two positions. As I suggested in the course of the Q\&A, it does not matter if a specific ‘Decision Criteria document’ relative to each and every ‘decision’ of Network Rail in the course of the timetabling process is not provided at the time of the decision, as long as the right mindset required by application of the Decision Criteria regarding available options for the decision, and the consequent right approach to their evaluation, are in fact adopted by NR at the time and if necessary - for example, because the decision is resisted, challenged or formally disputed - can be shown to have been so adopted in substance by production of some explanation later at a suitable stage and in whatever form.

This interpretation recognises that Network Rail makes probably thousands of decisions in the course of timetabling, not just the big difficult ones, and that therefore it is simply impractical always to have to issue a ‘Decision Criteria document’. However this interpretation also accepts that the Decision Criteria need to be somehow demonstrably in the minds of the people making the decision at the time the decision is made, in order for the decision to be made as required by the Network Code “by application of” the Decision Criteria. It follows from that, that the Decision Criteria must relevant people somewhat in advance of making the decision. That is why my interpretation of the Network Code and the way it is set out (Condition D3.4.4), as previously explained, is therefore also that some regard to the substance of the Decision Criteria must also form part of the required ‘consultation’ by Network Rail, otherwise operators cannot be consulted on the basis of the issues they need to take into account.

Applying this interpretation to the facts of Network Rail’s approach to the Decision in this dispute as apparent from its submissions and answers to questions at the Hearing, I am satisfied that NR did not, demonstrably or otherwise, in substance or in form, have the Decision Criteria in mind during the period of consideration and discussion of the Possession and the various alternatives to it. From everything it has said, it is clear that Network Rail has been activated primarily by considerations relating to the delivery of the Project in 2019. In the circumstances that is entirely understandable but unfortunately not within the requirements of the contract to make such decisions “by application” of the Decision Criteria.

(TTP1521, paras 74, 75, 76)

In terms of approach I reminded myself and the Dispute Parties that the Panel is to review the information and data which was (or which reasonably should have been before) NR at the time of making the Decisions and to consider whether in context [emphasis added] the Decisions were within the range of reasonable decisions which a commercial decision maker might make. I respectfully adopt and endorse the legal guidance on the approach set out in paragraphs 223-230 of the determination in TTP2207.

[On regular repeat possessions] … NR, in its capacity as a contractual decision maker where its decisions may or do have a material commercial impact on TOCs, is obliged to ensure that its decisions are kept up to date and are made with the benefit of the most up to date information and data that it can reasonably procure within its own resources or secure from outside third parties…

In these circumstances and given the relatively little new or further reliable information and data that was available to NR I do not consider that it was unreasonable or irrational of NR to adhere to its view [for the first week]… I shall therefore determine that NR’s decision … shall stand.

There is now quite a large amount of new or revised data available to NR. The Decisions of NR are of critical importance to GWR and HEOC in particular. There are significant commercial implications. Taking things in the round I consider that in taking the decisions for [the later weeks] when it did, NR was perhaps a little premature and could and should have waited a little longer to take into account further information as it was developing. I consider that this just tips the balance into the unreasonable territory. I consider that the right course at this stage is for NR to look once again at all relevant material now before it and carry out a reassessment. It may also be helpful if NR reconsiders what a measure of success really means. If the measure of success is TPR compliance there might be a case for it to offer 16.5tph as this has been shown to be TPR compliant. If the measure of success is PPM, and the … data shows the failure of the 14.5tph it raises the question why NR is not rowing back from this service level and offering fewer train paths. It may be, based on oral observations made at the Hearing, that … the underlying cause of the downfall of the 14.5tph timetable lies elsewhere. If that is the case, offering more paths would not make this situation any worse, in and of itself.

(TTP2243 et al, paras 29, 54, 61, 64)

When Railtrack sought to justify some of its decisions by reference to Access Condition D4(a) [now D4.6.1], and the passenger loadings on conflicting trains, the Committee considered that such data should inform discussions between Railtrack and Train Operators, but should not necessarily be an absolute determinant of priorities; in other words passenger loadings are a valid component “to be weighed” as part of the assessment of priorities.

(ttc63)

The Panel identified that, having considered the evidence on passenger numbers before it and the nature of the alternative disruptions proposed (i.e. bussing of passengers or alternative/longer train journeys), the public order concerns … should be included in the balancing exercise…

ORR does not accept … argument that the Panel’s conclusion should be rejected…

(ORR appeal determination of TTP337, TTP359, TTP382, paras 75, 76)

In trying to achieve … balance of competing interests, in the absence of any other contractually explicit yardstick for determining what lies at the heart of DC D6(a) – “sharing the capacity … of the Network … in the most efficient and economical manner in the interests of all users of railway services…” – I concluded … that the most sensible metric was that of benefit to the ultimate consumer, the passenger or freight customer, in the sense of looking for the solution that demonstrably provides the greatest good for the greatest number.

(TTP376, TTP377, para 8.5.7)

The necessity to find possession time for the carrying out of works made essential either by the deteriorating condition of track, or of the need to fulfil contractual obligations in respect of improvements to the Network, is not a sufficient argument for curtailing the duly asserted rights of Train Operators. The requirement remains for Network Rail to make the case, whether under proposals for Rules of the Route, Major Project notice, or Network Change, and to enter into such dialogue as the relevant Track Access Condition requires.

(ttc182, ttc189, ttc212, ttc256, NV50, NV55)

Network Rail should make arrangements to ensure that it puts in place monitoring arrangements capable of demonstrating the effectiveness and efficiency of the use made of the possessions enabled by the introduction of “2 Track Railway timetable”.

(ttc189, para 14.5)

Disputes of this nature … require the Committee to weigh up, by reference to the Decision Criteria … the relative standings of:

• the Firm Rights of the Train Operator to operate trains at specified times;

• the scale of any detriment to the Train Operator’s business (including the ability to meet contractual obligations to outside parties) resulting from the taking of the proposed possessions;

• the extent to which the Train Operator would be able to provide alternative services, either using diversionary routes or by road transport;

• the rights of Network Rail to take the possessions, in effect to cause them to be included within the “applicable Rules of the Route” ;

• the extent to which the need for the possessions can be substantiated by reference to such factors as:

  • the need to do works (whether renewals or maintenance);

  • the implications of doing the works at the times specified, or over the durations specified; and

  • the engineering choices made by Network Rail.

• the impact on the business of other operators on the route concerned of the proposed duration and dating of the possessions and any change to these sought by the appellant.

(ttc256, para 3)

[Condition D4.6.2(f) formerly stated “comply with any contract”, rather than “commercial interests”, thus:]

In respect of … “enabling a Bidder to comply with any contract to which it is party (including any contracts with their customers…) … in each case to the extent that Railtrack is aware or has been informed of such contracts”, the Committee was of the view that

• EWS’ access rights in relation to 1C00 and 1F02 (the two Down Mail Trains) were formulated to support EWS’ contractual obligations to the Royal Mail, and were known in all relevant respects to Railtrack.

• “any contract to which it is party” includes, for the Train Operator, the Firm Contractual Rights within the Access Agreement itself.

(ttc87, para 18)

[Condition D4.6.2(f) formerly stated “comply with any contract”, rather than “commercial interests”, thus:]

The Panel considered the points made by FGW in respect of the commitments that it carried under its Franchise Agreement in respect of the frequency of service between Reading and Gatwick. The Panel noted FGW’s contention that Decision Criterion Network Code D6(b) acknowledged “the necessity or desirability of … enabling a Bidder to comply with any contract to which it is party (including … the franchise agreement to which it is a party) …” The Panel found that this obligation to a third party does not, of itself,

• confer upon the Bidder any rights of Access that are not already incorporated into a Track Access Contract that has been approved by the Office of Rail Regulation;

• require Network Rail to act in any way that might be to the detriment of the performance enjoyed by other Train Operators, particularly those with approved and documented Firm Rights, and

• provide any means of getting round, or over, physical limitations within the track layout that preclude the plotting of an appropriate Train Slot.

(TTP95A, para 7)

In the circumstances where the substantive issues that have been argued by the Parties relate primarily to matters of principle in the operation of the Timetabling procedures, and that it has been demonstrated that WSMR’s Firm Rights have (largely) been honoured, the Panel considers that there is no provision in either the Track Access Contract or the Network Code that prescribes a remedy be granted in accordance with ADR Rule A1.19 (a) [now Rule A6(a)]. Furthermore, taking account of all the other arguments from the Parties, the Panel considers that there is no need for it to exercise its discretion, as contemplated in ADR Rule A1.19 (b) [now Rule A6(c)], “after due consideration of all remedies and orders that could properly be made”, in circumstances where it has not been demonstrated that WSMR has been materially wronged. Therefore there are no grounds for directing Network Rail as requested.

(TTP244, para 25.5)

[Determination TTP244 was referred on appeal to ORR. ORR issued two determinations, the first concerned with “determination on the legal interpretation of the contractual provisions of the Network Code in relation to the preparation of the First Working Timetable” (February 2009) and the second in relation to the above finding of the Panel (June 2009). ORR words in italics.]

ORR disagrees with the Panel’s Finding … that the fact that WSMR’s Firm Rights were satisfied renders unnecessary any qualitative judgement as to the potential effect of a different approach by NR to the timetabling process on the Train Slots ultimately offered to WSMR.

(First Determination, para 73)

This issue, and whether in turn there was a liability on Network Rail in any way to compensate WSMR, was addressed in the second Determination, which focussed upon Network Rail’s degree of compliance with ORR’s interpretation of Conditions D2 and D3. In the circumstances of the case, ORR concluded that there was no grounds for concluding that there should be any question of compensation, as Network Rail had substantially complied with the interpretation of Conditions D2 and D3 as construed first by the Panel, and secondly as elaborated by the ORR in its First Determination.

In future hearings such as the above, as a recommendation the Panel would benefit significantly from the provision of agreed data and an agreed chronology

(TTP2207, para 222)

While it is clearly for each party to a dispute to determine how best to put its case to protect its legal and commercial rights, it is self-evident that extensive use of external advisors increases the costs of a dispute. It is also worth bearing in mind that, if one party makes extensive use of such advisors, the other party may feel it has to do so as well … the dispute resolution mechanism contained in the ADR Rules and Part M of the Network Code is not intended to operate like commercial litigation and neither the TTP nor ORR is set up to deal with disputes argued in this way. The processes are intended to lead to a legally robust conclusion without being legalistic. [emphasis added]

(ORR appeal determination regarding TTP1064, para 59)

Hearing Chairs may issue interim records of determinations, to assist the Parties in urgent timetabling activities, but determinations can only be appealed under D5.2 if they comply with ADR Rule H51 and Network Code D5.2.1.

(Letter from ORR to NR regarding interim determination of TTP493 TTP494 TTP495)

… I identified certain general issues of law (including matters of contractual interpretation) which I considered to be raised by the dispute … [It is] right to explain my conclusions on these issues … since they will inform the extent of what I can determine in relation to the specific practical issues in dispute … [It] is appropriate to raise these issues for consideration in some detail … both to provide possible clarification to inform future Panels constituted under the new ADRR regime, and also being mindful of the ADRR Rule A5 requirement … that the Panel must “reach its determination on the basis of the legal entitlements of the Dispute Parties” etc.

The first such issue concerns the power of a body such as an ADC tribunal or panel to reopen the exercise of a general discretion by a body whose decision is appealed, here NR. Under the various provisions of NC Part D, NR (for these purposes to be considered in its role as a quasi public body holding a statutory monopoly) is required in effect to exercise a discretion in balancing a range of competing interests. These interests include (but not exhaustively) those spelt out by the DC, to which Network Rail is specifically mandated to have ‘due regard’.

• The question that arises is whether, in reviewing the result of the exercise of that discretion at the suite of a dissatisfied party, the Panel is legally empowered to revisit the whole exercise from scratch and substitute its own view as to the result of how the Panel itself would have exercised the discretion in the same circumstances. Or, whether the Panel is empowered (or constrained) to determine something less than a wholesale reopening of the matter, by reference to the Panel’s view of the degree of ‘reasonableness’ shown by NR. The alternatives could range from substituting a distinct result proposed as being more reasonable by one (or more) of the other dispute parties; to simply upholding (as being at least sufficiently reasonable) or rejecting only the specific result proposed by NR; to leaving Network Rail’s result alone unless it is found to have been so unreasonable as to have been perverse (sometimes referred to as the ‘Wednesbury’ test of reasonableness, after a case of that name which was referred to in reference TTP210).

• This issue is governed largely by the interpretation of the relevant provisions of Part D which introduce the DC and refer matters arising to ADRR for ‘determination’. However it is also governed by general principles of law applicable to the exercise of a discretion by a body carrying out a public function, such as NR. The issue has been implicitly relevant to many previous TTP decisions, and in some cases has been expressly considered.

• The most recent revision of NC Part D, effective as of 1 October 2010 (i.e. two days after this Hearing) is of help here. The new Condition D5.3.1(c) is clearer and more direct than its previous equivalent old Condition 5.3.1(c) … in providing explicitly that [the Panel] “may substitute an alternative decision in place of a challenged decision of Network Rail”, provided that such power “shall only be exercised in exceptional circumstances”.

• Under the former version my conclusion in any event would have been that, in order to have a meaningful appellate role, the Panel must at least have jurisdiction to consider more than merely whether NR has been totally perverse or not, but I was uncertain to what extent the Panel had power to go any further than that. However, in the light of the new Part D provision, even with its unfortunately vague proviso, I believe it is clear that the Panel has power to reopen the exercise of NR’s discretion from the beginning.

• New Condition D5.3.1(b) also gives the Panel a more broadly expressed power than previously, simply to uphold NR’s decision: “it may direct that a challenged decision of Network Rail shall stand”. In the light of the general broadening of Condition 5.3 in the new version … it is reasonable to interpret this as permitting just as extensive a revisiting of NR’s decision where the eventual determination is to uphold the decision, as where it substitutes an alternative decision by the Panel. In other words … it permits an upholding of NR’s decision even where NR’s reasoning has been imperfect, because the Panel can if necessary substitute its own reasoning, even if the decision remains the same.

(TTP376/377, paras 8.1, 8.2)

Both [TOCs] … ask expressly for particular remedies in the shape of, in effect, the Panel itself directly making (or injuncting Network Rail to make) certain identified changes to the latest RotR [now Engineering Access Statement] to have been published. The changes sought include substituting a series of specific possessions which are different in duration or timing, or both, from those determined by Network Rail as the outcome of its planning process. Some are possessions that have already been initiated, considered and rejected by Network Rail as ineffective for their intended purpose; others are possessions first proposed by the respective claimant, whether now or previously in the course of the timetabling process, as its preferred alternative to those initiated by Network Rail.

The question that arises here is whether, or the extent to which, the Panel has the power to make such very specific awards. This would amount to the Panel in effect directing Network Rail as to how to plan for and manage its engineering works; I have to question the extent to which it is appropriate for any Panel to do so by substituting either its own view or that of either or both of the claimants, as to what is necessary or sufficient to achieve a desired engineering outcome for the benefit of the network.

This issue also is clarified to some extent by the new October 2010 version of NC Condition D5.3.1(a), which now gives a rather more general power than previously to the Panel to “give general directions to Network Rail specifying the result to be achieved but not the means by which it shall be achieved”. (The previous equivalent, current for the purposes of this dispute, empowered the Panel to “ direct Network Rail to comply with directions which specify the result” etc) Nevertheless, I think it is appropriate to point out that there must still be some practical limits to what the Panel can specifically require NR to do or refrain from doing.

(TTP367/377, paras 8.3.1, 8.3.1, 8.3.3)

[TOC] … specifically seeks a ruling binding on “future possessions of 25 hours (or comparable) duration affecting [TOC’s] services on the WCML”, requiring that they be planned on Sundays only, “including but not limited to those in Period E of 2011 that [TOC] has separately referred to ADC …”. No limit in scope or time appears to be placed on this objective. Even without any detailed analysis of all the possibilities that this admits, it must be the case that no Panel could in any event grant such an open-ended request, even if it were to try to include practical limits to it. To do so would be to purport to tie NR’s hands in operating the RotR [now Engineering Access Statement] process for ever after, let alone to prejudge the outcome of a separate dispute which has apparently already been referred for determination.

(TTP367/377, para 8.3.4)

[In considering an appeal against the Timetabling Panel determination, ORR addressed the matter of submissions to Panel hearings whereby redacted material is provided to the appointed Panel members but full data is supplied only to the Hearing Chair. A TOC involved had put forward argument that “the Panel members, as a result of not being provided with the specific passenger information, were only able to make “a subjective assessment of the dispute going forward”.

Thus ORR considered:]

that, generally speaking, best practice is to provide all members of the Panel with the same information for the purposes of their decision-making.

(ORR appeal determination regarding TTP337/359/382, para 77)

While we consider that the wording of limbs (a) to (c) of Condition D5.3.1 could in future be clarified, it seems clear to us that the power to give a general direction under Condition D5.3.1(a) encompasses the power to quash a decision by Network Rail.

(ORR Determination of appeal against TTP1064, para 61)

The term “exceptional circumstances” is not defined in the Network Code. As such, ORR considers that what may constitute exceptional circumstances will turn on the facts of a particular case. It is for the TTP (or, as the case may be, ORR) to determine whether such exceptional circumstances exist…

Network Rail also made representations that the TTP Determination was unjust due to a serious procedural irregularity because the Hearing Chair failed to record his decisions and conclusions reached with regarding to Condition 5.3.1 (c) in failing to make express reference as to why there were exceptional circumstances in this particular case. ORR acknowledges that, as a matter of good practice, where a TTP decides to exercise the power set out in Condition 5.3.1 (c) of Part D, it would be helpful to include clear language explaining what the exceptional circumstances are in any particular case. Notwithstanding this, ORR is satisfied that the TTP Determination sets out a clear record of the exceptional circumstances relied on in this case, namely Network Rail’s request in its statement of claim for the TTP to substitute its decision for that of Network Rail. Although the TTP did not use the term “exceptional circumstances” in the TTP Determination, ORR considers that sufficient reasoning was included by the TTP to justify the exercise of the power set out in Condition 5.3.1 (c)…

Furthermore, ORR has considered Network Rail’s request for guidance on the triggering of exceptional circumstances in relation to Condition 5.3.1 (c) of the Network Code. ORR considers there is discretion on the part of both the TTP and ORR to determine what may constitute exceptional circumstances in a particular case, and therefore it is not appropriate for ORR to give guidance.

(ORR Determination of appeal against TTP985, paras 34, 41, 43)

In ORRs view, the direction given to Network Rail by the TTP in this case [TTP1520] to include the eight Freightliner slots at 1600 tonnes is similar in its level of specification to that given to Network Rail in [TTP985]…

[ORR then went on to say (paraphrased): A TTP determination does not need to explicitly state the exceptional circumstances in the case, however it must provide enough clarity to enable the parties to understand whether there were exceptional circumstances and what those exceptional circumstances were, in each case. The term “exceptional circumstances” is not defined in the Network Code. As such, what may constitute exceptional circumstances will turn on the particular facts of the case… however:]

On its own, ORR does not consider that this finding and the result that Network Rail is in breach of its track access contract is sufficient for the circumstances to be exceptional. There are other circumstances in which Network Rail has been found to not have correctly applied either the prioritisation procedure or other elements of the timetable process and in those circumstances the situation has not been regarded as exceptional…

ORR therefore considers that the TTP erred in its application of D5.3.1. Either it mistakenly believed that the direction it gave fell within D5.3.1(a), when in fact it fell within D5.3.1(c) or, it believed its decision fell within D5.3.1(c) when there were no exceptional circumstances to justify such a decision. ORR has balanced the points considered by the TTP in the Determination as being possible exceptional circumstances but have not identified anything “exceptional”. The TTP therefore should have directed Network Rail to reconsider its decision in accordance with D5.3.1(a).

(ORR Determination of appeal against TTP1520, paras 48, 51, 52, 55, 62)

[This dispute related to a major blockade on Anglia Route, the hearing for which took place at T-3, due to Network Rail issuing a late notice decision to impose the blockade. The Chair found that exceptional circumstances existed, and replaced Network Rail’s decision with one of his own (an alternative, less disruptive access strategy that had previously been discarded). Network Rail appealed to the ORR, which upheld the determination, but did not appeal the finding of “exceptional circumstances” so ORR did not comment on the Chair’s findings in that regard.]

I also noted that, uniquely in my experience, a Party had advanced the argument that exceptional circumstances under D5.3.1(c) had arisen. GBRf set this out in its Sole Reference Document, a submission which Freightliner later adopted. Network Rail also submitted that exceptional circumstances had arisen, albeit for different reasons. I pointed out that the Panel could uphold Network Rail’s Decision, but if it did not do so then I was not prepared to grant Freightliner’s request simply to quash the Decision but do no more, as I thought that an impractical decision for the Panel to reach at this stage…

If, therefore, we were not to uphold Network Rail’s Decision, then in theory we could give a direction to Network Rail specifying the result to be achieved but not the means by which it should be achieved (pursuant to D5.3.1(a)), or substitute an alternative Decision under D5.3.1(c) if we concluded that exceptional circumstances had arisen. However, my own perception was that there was simply insufficient time now remaining to give a D5.3.1(a) direction to Network Rail, so the Panel might be faced with a binary decision between upholding Network Rail or substituting an alternative Decision. None of the Parties dissented from this analysis…

Our understanding of the likely effect of the Restrictions of Use on the Claimants … left us with our conclusion that there had been no similar Restrictions of Use with such an effect on operators being imposed at such short notice which the Panel could recall. No other comparator was put forward by any Party…

In this case the Panel had no hesitation in concluding that exceptional circumstances had arisen … the Panel accepts the arguments of the Claimants, that the scale of the Restrictions of Use, imposed at such short notice, will have such a significant effect on the operations and businesses of both Claimants as to amount to exceptional circumstances. Therefore the Panel concluded that it was entitled to substitute an alternative Decision in place of Network Rail’s Decision…

… the first blockade was due to start in 23 days time and, without wishing to exaggerate, the Panel concluded that there is a real risk of the Claimants being unable to move contracted freight by rail. There remains considerable uncertainty as to what can be offered, so if we were to find for Network Rail then the Panel would be saying to the Claimants that their legal entitlements would be unmet and we are unable to offer any remedy.

I concluded exceptional circumstances had arisen.

(Determination of TTP1706 & TTP1708, paras 22, 23, 77, 81, 89, 90)

Network Rail’s failure to exercise its Flexing Right with no acceptable justification for the failure satisfied the definition of ‘unreasonable’ (but not ‘bad faith’). Therefore, in ORR’s view, the TTP was entitled to direct payment of compensation.

Any remedy awarded by a TTP must be limited to the legal rights of each party, which are contained within the relevant track access contract. So, whilst the TTP was entitled to award compensation on the basis that an award for breach of contract is contemplated by the track access contract, such an award is limited by the cap clearly set out in Clause 11.5.

(ORR appeal determination of TTP1520, paras 67, 68)

It is ORR’s view that the TTP is not entitled to assess compensation. Any disagreement as to the size of award should be referred to ADRR in accordance with the provisions of the track access contract.

(ORR appeal determination of TTP1520, para 70)

…the Timetabling process, as set out in Network Code Part D, is sequential. In principle the Major Project notice [now Possessions Strategy Notice] creates a context for the subsequent crystallisation of the Rules of the Route [now Engineering Access Statement]; the Rules of the Route [now Engineering Access Statement] then set the context for detail incorporation of train specifications into the Timetable. However, the individual Train Operator, before surrendering any right to influence, through the disputes procedure, the detail of the “method of implementation of the project” requires an assurance that its service requirements can be appropriately honoured. That assurance can only be based on one of two considerations, namely:

a demonstration, in effect a draft timetable, that the services in question (or viable alternatives) can be accommodated; or

confidence in the integrity of the internal procedures of Network Rail that, where a commitment is given that a service can be provided, then, even though no details can be supplied, that commitment will be honoured, whatever the consequent implication for Network Rail.

The Panel considered that the former of these two approaches implied the undertaking of much premature analysis, and that this was potentially an unreasonable extravagance, likely ultimately to be a counter-productive diversion of train-planning resources. However, it may be inevitable, if:

there is no alternative, and credible, means of giving the necessary assurance that the detail of the Major Project notice [now Possessions Strategy Notice] proposals are not inimical to the interests of the Train Operator. and

there is no credible assurance that appropriate diversionary capacity is, and can be made, available.

(TTP01, paras 17, 18)

The Major Project Notice procedure is structured to allow a project that requires major adjustments to Rules of the Route [now Engineering Access Statement] extending beyond the scope of a single timetable, to reach agreement in a way that then cannot be overturned by the operation of regular Rules review processes.

In most circumstances, a Major Project notice is used, at Network Rail’s discretion, to bring together a range of possessions etc associated with a complex task. The Committee was asked, via various dispute references, to determine whether Network Rail could be obliged to designate a given programme of works as a Major Project. The Committee determined that, if the works fulfilled the definition of a Major Project, then there was an obligation that it be designated and handled as such. The key criteria are:

“the activity relates to “engineering, maintenance or renewal”;

it requires “a possession or series of possessions of one or more sections of track”;

that requirement lasts “ a period of more than one year”; and

the activity relates to a defined “project” (NV53, para 9.2)

See also: NV9, NV13, NV17, NV18, NV26-31, NV37-43, NV46, NV53

[The concept of a Major Project no longer appears in Part D, and Condition D6.1 has been reworded to include maintenance activity, however the conclusion reached by the Committee in NV53 is retained for illustrative purposes. Thus:]

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:

• 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”…

• 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”…

• 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.

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 [that the TOC] 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 [as was]. 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, paras 9, 10)

The Panel noted that the issue of the relative priority of Firm Rights and proposals for possessions (whether in Rules of the Route [now Engineering Access Statement], or Major Project notices) has been addressed in a number of previous determinations of both Network and Vehicle Change Committee and Timetabling Committee. In the view of the Panel, these past determinations had evolved the following general principles.

• Train Operators’ rights to run trains are predominantly long term;

• Network Rail’s obligation to supply Train Operators with a secure Network is ongoing; it cannot always be delivered without interruption to services, and the relevant Parts of the Network Code, and the specific schedules in the Track Access Agreements are framed to permit reasonable interruptions, and to determine if, and how, Train Operators are to be compensated for the impact upon their operations;

• the normal process for planning such matters is as set out in Part D of the Network Code;

• where the proposed engineering works / “proposed method of implementation of the project” will have the effect that a Train Operator will be frustrated, for the duration of the Timetable, from running a service for which valid rights are held, this is likely to be seen as a reasonable ground for challenging the proposal and causing it to be modified;

• where the duration of the possessions is only part of a Timetable, then any determination reflects an assessment of the nature, and force of the rights enjoyed on both sides, tempered by considerations of whether there are a number of options for delivering the balance of rights, and whether that balance is the best met by the tabled proposal.

(TTP01, para 12)

[ADP21 was appealed to ORR, but this did not result in any qualification being placed on these findings. Thus:]

… a key to understanding the concept of the Major Project depends on considering the benefits that accrue to either party (Network Rail or the Train Operator) from a decision that a particular set of works should be implemented as a Major Project, subject to an established MPN. Under the provisions of Part D, Pink pages, those benefits were:

• for Network Rail, that all ROUs/SROUs for the duration of the timetables covered in the MPN, were established, and could not … be the subject of objection or appeal. This level of certainty allows for long term scheduling of tasks and the efficient deployment of engineering resources; and

• for a Train Operator, that the consequential individual ROUs, where they fulfilled the requirements of Schedule 4 paragraph 2.7 b) and c), would qualify as SROUs under Schedule 4 paragraph 2.7a), irrespective of the duration of the possession, and would therefore be subject to the (potentially more advantageous) compensation arrangements envisaged in Schedule 4 Part 3 paragraph 2.7.

With the change of Part D to the Yellow pages, the concept of the MPN largely disappears, to be replaced by that of the Possessions Strategy Notice. The key practical difference between the two versions of the conditions is that,

• under the Pink pages, the only means by which Network Rail could secure the ROUs for a long term programme of works (of any kind) spanning more than one timetable, was by declaring the works to be a Major Project, and triggering the relevant provisions of Schedule 4 Part 3 paragraph 2.7 and 2.6. By Contrast

• under the Yellow pages, the ROUs for a long term programme of works of any kind can be secured by the establishment of a PSN. A PSN, once established, under the provisions of Condition D2.2, confers on Network Rail the same benefit in respect of incorporation of ROUs into future Rules of the Route and future timetables as under the Pink pages, but does not trigger the provisions of Schedule 4 Part 3 paragraph 2.7 and 2.6.

(ADP21, paras 42, 43)

[Although the provisions of D6 have been significantly amended since 2006, it is still at Network Rail’s discretion to adopt the procedure set out in Condition D6. Consequently, the excerpts below remain useful.]

What is it that, in the regime of the Yellow pages, differentiates a Major Project (as defined in the Pink pages) from a possessions strategy (as defined in Yellow pages …)?

I note that both have in common the requirement for possessions/ ROUs “extending over … (a) a period of more than one year; or… (b) a period which contains two or more Passenger change dates”, and conclude therefore that the two must be differentiated by that qualitative component in respect of “engineering, maintenance or renewal” that warrants the use of the contractually undefined term of “project”. This I consider has to be a function of a reasoned, and if necessary defended, judgement by Network Rail as to the content of the task in hand, and not simply as to the number of tasks, or the scale of the disruption to Train Operators.

I am particularly insistent that this need for a reasoned case means that there is no obligation upon Network Rail to declare a Major Project solely to make itself liable for higher levels of compensation to Train Operators.

(ADP21, paras 45, 46, 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.

ORR therefore considers that a programme of works will constitute a “Major Project”, for the purposes of … the Code and Schedule 4 of the TAA, where it fulfils the following four cumulative conditions:

• 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

• the works involve engineering, maintenance or renewal activities; and

• the works require a possession or series of possessions over one or more sections of track; and

• 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:

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 coordinated 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.

ORR considers that, in the particular circumstances of the present case, the following considerations are material:

• 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;

• the Rewiring Works have affected the whole of the operational route covering a substantial length of track*. 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 occasioks, 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

• 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.

In the light of the above considerations, ORR considers that the Rewiring Works constitute a “Major Project” because they fulfil all four substantive requirements, as set out at paragraph 54 above including the fact that they are unusual in their nature and scope and in the way in which they are coordinated and implemented.

*At the hearing, FCC gave evidence, which was not contested by NR, that the Rewiring Works affected approximately 280 track miles.

(ORR Appeal of ADP21, paras 47, 54, 55, 56)

The Panel found that the function of, and justification for, a PSN is that, once properly agreed and documented, it provides, to Network Rail and Train Operators alike, the necessary degree of certainty as to how a major scheme will be delivered, against which to plan other activities. Thus

• Network Rail can be certain that Restrictions of Use needed for the scheme will be incorporated into the “applicable Rules of the Route” [now Engineering Access Statement] in the relevant following years; and

• Train Operators can reasonably argue against the inclusion in those future Rules of the Route of Restrictions of Use that will affect their operations “around” the PSN Restrictions of Use.

A corollary of the fact that decisions made regarding a PSN can have implications for several future years, is that

• the audit trail by which those decisions are documented for the benefit of persons or bodies who may be accountable for enacting them in future, must be comprehensive and all-embracing; and

• once finalised, the detail covered by the PSN should not be open to amendment, other than in accordance with the terms of the “Amendment Procedure” included within the Rules of the Plan [now Timetable Planning Rules]…”

(TTP310 and TTP312, paras 21, 22)

[NB - The appeal to ORR against ADP21 did not result in any qualification being placed on these findings. The Network Code has subsequently been heavily amended, but the broadly equivalent provisions - onus on Network Rail to decide if works require a PSP / PSN - can be found in Condition D6.1.]

The Panel found that the principal responsibility for administration of Part D of the Network Code rests upon Network Rail. It follows that, where there is a need to make a choice as to which of the procedures envisaged in Part D should be adopted, that choice is one that falls to be made by Network Rail. This choice is necessarily informed by the terms of the applicable Part D of the Network Code, and by the facts of the case as seen by Network Rail, and may require to be defended, in the event that there is a formal challenge brought by a Train Operator under Condition D5.

The Yellow pages version of Part D clearly envisages that Network Rail will in general rely solely upon the normal processes for deriving the applicable Rules of the Route [now Engineering Access Statement], but may “at its discretion” have recourse to a PSN. In addition, it has to consider, because of the provisions of Note 5(c) to Part D Yellow pages, whether there are circumstances such that it could with advantage declare a Major Project, or is required so to do. However, note 5(c) is clear that the requirement to issue a PSN (MP) is predicated upon an act of will of Network Rail, namely “in the event that Network Rail wishes to implement a Major Project, it shall issue a Possessions Strategy Notice in respect thereof in accordance with Condition C2.2 and identify that notice as one relating to a Major Project”.

(ADP21, paras 22, 23)

The Panel finds that it is required to consider the Water Orton PSN (EEPW12v2) issues raised by XC and GBRf from two specific perspectives, namely

• whether the prescribed procedures defined in Condition D … have been properly complied with, and

• whether any of the Restrictions of Use set out in EEPW12v2 take insufficient account of the requirements of the two dissenting Train Operators, GBRf and XC.

The Panel noted that, on the first point, it is explicitly requested by NR to find that [the PSN] “was correctly consulted by Network Rail in accordance with … the Network Code” … and that the contrary view is argued by GBRf. The Panel considered that if it were not able to uphold the position argued by Network Rail then

• it would be appropriate to conclude that there was no de facto PSN for the Water Orton Works: and therefore

• there would be no grounds for addressing the points of detail.

The Panel finds that [the Conditions] impose very specific preconditions that Network Rail is required to fulfill, as between the conclusion of the consultation … and the issuing of a PSN. It is the view of the Panel that it is not sufficient for Network Rail to assert that it has fulfilled those requirements, but that, if challenged, it must be able reasonably to demonstrate, by reference to records, that they have been fulfilled, at the time, and not retrospectively.

The Panel has had to consider the specific representations of GBRf regarding the failure to respond to its document submitted on 2nd August 2009, as reflected in its follow up response document of 6th October 2009. The failure by Network Rail to respond to GBRf’s document dated 2nd August 2009 alone leads the Panel to the conclusion that Network Rail had not fulfilled the requirements … before issuing EEPW12v2 on 16th September 2009. For this reason it follows that, in the view of the Panel, it cannot find as requested by Network Rail, that [the PSN] “was correctly consulted by Network Rail in accordance with the… Network Code” and that therefore the effective position is that Network Rail is not entitled to deem EEPW12v2 a “Final” PSN.

(TTP310 and TTP312, paras 23, 24, 25, 26)

The common characteristic of [references made under the appeal provisions] is that a Train Operator contends that the proposed “method of implementation” will impact adversely upon the conduct of its business. A Panel, in order to weigh the merits of the case before it, needs the information, to a proportionate level of precision, to enable it to judge,

• as between the rights of the Train Operator and Network Rail,

• the case for the “method of implementation” proposed, and

• the scale of the hurt likely to be experienced by the Train Operator.

(TTP01, para 16)

Whilst [ADR Rule A5] requires that the Panel “shall reach its determination on the basis of the legal entitlements of the dispute parties and upon no other”, the legal entitlement to any train service is a function of not just the formulation of the train specification in [Schedule 5 of a track access contract], but also the extent to which all parties have complied, and with what diligence, with the procedures for consultation and debate incorporated in the Network Code. In effect:

• the legal entitlements of Train Operators are a fusion of the documented expression of their Firm Rights, and their active compliance with the procedures by which those rights can be exercised, implemented and protected; and

• the legal entitlement of Network Rail to a degree of latitude in curtailing the benefits enjoyed by the Train Operators is, by the same token, a function of being able to demonstrate that the curtailment sought is a reasonable minimum, in proportion to other considerations.

In short, where absolute legal considerations are in conflict, the issue of proportionality is an overarching aspect of the procedures.

(TTP01, paras 13, 14)

[FL sought to appeal against this determination, under the terms of Network Code Part M, to the ORR. ORR declined to hear the Appeal on the grounds that “the appeal does not have a real prospect of success”.

The Panel was asked to determine that where proposed possessions would mean that services for which Firm Rights existed would require potentially costly diversions, a Train Operator was entitled to require Network Rail to meet those costs as a condition of the Train Operator withdrawing its opposition to the possessions. The Panel found against this contention, on the following grounds:]

where, in the course of the operation of the provisions of Condition D2 a Train Operator considers that it will suffer an unreasonable impact from a proposed change to the Rules of the Route [now Engineering Access Statement], it is entitled to support its case against the proposal with whatever arguments it considers appropriate, whether in dialogue with Network Rail, or within the formal dispute resolution procedure;

all such arguments (including any references to the Decision Criteria) are likely to be taken into account by any Appeal Body (Timetabling Panel, or Office of Rail Regulation) in any weighing up of the merits of the contested proposal;

the likelihood of additional costs is a reasonable argument to adduce in support of a particular point of view; however, the advancing of the argument does not mean that an entitlement is thereby created, unless the argument is based upon an explicit contractual right;

it does not accept FL’s argument that such additional costs should be deemed Relevant Losses, nor that it has any explicit contractual entitlement to compensation for additional costs in any of the circumstances quoted; therefore

in such circumstances, it is quite clear that there is no power of veto of proposed changes to the Rules of the Route, contingent upon the payment of any such compensation; and therefore

where, as was the case in several parts of Timetabling Panel Decision no.1, an Appeal Body has not upheld FL’s or FLHH’s reasoned objection, the proposed Restriction of Use to carry out renewals can become part of the “applicable Rules of the Route”, and

• FL’s & FLHH’s Firm Rights become subject to any proposed Restrictions of Use that are incorporated within the “applicable Rules of the Route”; and

• FL or FLHH’s entitlement to compensation in such cases is through the terms … of their respective Track Access Agreements, and otherwise the parties are required to meet their respective costs where they lie.

an Appeal Body does not have the discretion to rule that a party has an entitlement that is not already provided for in the contract.

(ADP10, para 17)

[In formulating its determination on ADP21, the Panel had been asked to determine which of two successive versions of Part D should apply to the circumstances in question. The issue was complicated by the fact that during the period to which the dispute related the holder of the Franchise had changed, and the Panel considered that this had a material bearing upon which text and processes should be deemed to apply; specifically that the operative version should be that which applied at the date of the Franchise change.

In its determination of the appeal this issue was addressed by the ORR, and an important principle established, both in relation to the applicability of versions of documents, and also as to the responsibilities of current franchise incumbents in respect of processes which will not conclude until after the end of their tenure.]

The better view is to regard NR’s duties as crystallising at a particular point in time. In the Determination, the Panel concluded that the material time for assessing the applicable version of the Code was the time when FCC took over the franchise in April 2006. In ORR’s view, the transfer of the franchise has no bearing on the substance of NR’s duties under the Code and should not have been determinative. The material time for determining the application of the Code is the time when any notice should have been served (if there was indeed an obligation to serve one). That period may span from the time when the works were first in contemplation until the project started to be implemented.

ORR’s conclusion

In the present case, and based on the facts before us, NR was contemplating the works at least from September 2004 and commenced the Rewiring Works in May 2005. Accordingly, NR’s duties under the Code in respect of giving notice of the Rewiring Works should be assessed by reference to the Pink Pages, which were in force at that time.

… For the above reasons, ORR makes the following determination …

• NR should have served a MPN on WAGN and engaged in the MPN Process in accordance with … the Code;

• The failure by Network Rail to serve such notice and to engage in the MPN Process could have been challenged by WAGN under … the Code up until the time when the project was implemented;

• Once the works commenced, the remedy in respect of a failure to comply with … the Code was a claim for damages for breach of the TAA in accordance with all the relevant provisions of the TAA

(ORR Appeal Determination ADP21, paras 63, 64, 88)

The Committee therefore determined that:

• 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 [now Possessions Strategy Notice] works, is reasonable;

• the arrangements that Network Rail had stated that it proposed to take to strengthen the Access Planning capability, appeared appropriate, and should be implemented;

• 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

• 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.

(NV50, para 6)

[In considering an appeal against the Timetabling Panel determination, ORR addressed the matter of submissions to Panel hearings whereby redacted material is provided to the appointed Panel members but full data is supplied only to the Hearing Chair. A TOC involved had put forward an argument that “the Panel members, as a result of not being provided with the specific passenger information, were only able to make “a subjective assessment of the dispute going forward”.

Thus ORR considered:]

that, generally speaking, best practice is to provide all members of the Panel with the same information for the purposes of their decision-making.

(ORR appeal determination regarding TTP337/359/382, para 77)